Menzies v Festa
[2018] QCATA 60
•23 April 2018
CITATION: | Menzies v Festa & Anor [2018] QCATA 60 |
PARTIES: | Scott Menzies |
| v | |
| Antonino Festa (First respondent) and James Festa t/as Stretch Paints | |
APPLICATION NUMBER: | APL340-17 |
MATTER TYPE: | Appeals |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Howe |
DELIVERED ON: | 23 April 2018 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | The application for leave to appeal is refused. |
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – FROM INTERLOCUTORY DECISIONS – LEAVE TO APPEAL – where a home owner defended a claim by painters for payment on an invoice – where the owner had electronic evidence by way of digital photographs at hearing – where those digital photographs did not clearly show the defects alleged – where no hard copy photographs available – where judgment given for painters based on the limited evidence available – where owner appealed seeking to rely on fresh evidence of hard copy photographs Pickering v McArthur [2005] QCA 294 |
APPEARANCES: |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
Mr Menzies engaged the respondents to do painting work at his house. The house was being renovated and the work involved internal painting.
The respondents performed the work over three days in July 2016. Mr Menzies was not happy with the standard of the work, however. He paid the painters part of their account but withheld $1,965 pending rectification work and cleaning of the job site.
The painters returned and performed work but Mr Menzies was still not satisfied with their further efforts. He refused to pay the balance claimed.
The painters filed an application for minor civil dispute – minor debt in the tribunal claiming the outstanding money. The matter was heard on 5 October 2017 and the tribunal ordered Mr Menzies to pay the outstanding sum to the painters within 28 days.
Mr Menzies has filed an application seeking leave to appeal that decision. Given this is an appeal from a decision made in the tribunal’s Minor Civil Dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.[1]
[1]QCAT Act, s142(3)(a)(i).
Leave to appeal only will usually be granted where there is a reasonable argument that there is an error in the decision below to be corrected and an appeal is necessary to correct a substantial injustice to the appellant caused by that error.[2]
[2]Pickering v McArthur [2005] QCA 294, [3].
Mr Menzies writes as his ground of appeal the following:
I am seeking an appeal to the decision due to the unavailability of key evidence. I was unaware I was not able to submit digital copies of photos as evidence during the hearing. I have now supplied physical copies of the photos showing poor quality work and damage to other surfaces. I believe the decision will be reversed with the addition of this new evidence.
As stated, in an application for leave to appeal it is essential that an appellant show an error has been made in the decision sought to be appealed. An appeal is not an opportunity to have the matter heard afresh. The appellant must be able to show the tribunal below went wrong in some way.
Mr Menzies says he did not know he could not submit electronic evidence, that anything submitted had to be handed up in hard copy form.
The transcript of the proceedings show that Mr Menzies did bring some hard copy documents with him to the hearing. He handed up a list he described as a list of 119 defects he found in the painting job. That was tendered.
The tribunal asked before that whether he had photographs showing the poor work and he replied ‘I hesitate to provide photos, as they are difficult to see without a direct inspection. The paint splotches, like, on the floor, can be seen, but I can’t print out an A3 colour photo to show you that.’[3]
[3]Transcript 1-6 Line 22-24.
The following exchange then occurred:
Struik JP: You could go down to Harvey Norman and print out some photos on a 6 x 4. It’ll cost you 10 cents a copy.
Mr Menzies: I could.
Struik JP: Well, how are you going to convince two completely independent adjudicators of the veracity of your case if you can’t bring some photographic evidence?
Mr Menzies: I provided to Stretch Paints after the initial work a list of defects required to be rectified.
Subsequently the tribunal again raised its incredulity that Mr Menzies had not thought to bring photographs of the alleged defective work with him to the hearing. He then replied that he did have photographic evidence. ‘I can provide them digitally, if you like. I just don’t have them printed out.’ Nothing more about that was said.
Mr Menzies and Mr Antonino Festa went on to discuss the alleged defects. Mr Festa said he could not explain why it was claimed that there was a great deal of paint splatter. He said his painters put down protective sheets, but Mr Menzies said that was not done when painting trim. Mr Festa also said there were other tradesmen there as well. The job was a renovation. He said his crew of painters returned to rectify problems. Mr Menzies disputed that all the defects were remedied.
The tribunal concluded that the painters had established their contractual entitlement to be paid. Given Mr Menzies’ paucity of evidence about the alleged defects, which could easily have been remedied by photographic evidence, the tribunal found the claim made out.
Mr Menzies chose not to present photographic evidence at the hearing.
It was not that the tribunal refused to take electronic evidence initially from him. He made it clear that the photographic evidence he had would be of little persuasive effect. He said it was difficult to see the problem work.
A direct inspection was necessary for that.
It is the case however that, generally, electronic evidence is not taken in tribunal hearings. On the QCAT webpage, the following appears as guidance for parties attending and presenting evidence at hearings. Under the tabs ‘Going to the Tribunal – Appearance and Representation – Evidence and Witnesses’:
Electronic Evidence
You must print out electronic evidence.
Sometimes evidence (such as photos …) may be stored in an electronic device…. The tribunal will not accept a CD, DVD or portable drive for filing and will not consider evidence provided only in an electronic format.
Mr Menzies now seeks to lead fresh photographic evidence in hard copy. It is unclear when those photographs were taken. There is no date stamp on them. Mr Menzies should have had them available for the hearing before the tribunal on 5 October 2017. Mr Menzies did not seek any adjournment of the proceeding to have the digital photographs he said he had available digitally, printed out. Given however that he said the photographs he had at the time did not show the defective work, one might conclude it would not have assisted him in defending the claim in any case.
The tribunal did nothing wrong in deciding the matter on the hard copy evidence before it. It acted in accordance with the usual procedure applying in the tribunal. There is generally little capacity in the tribunal to receive electronic evidence unless arrangements are made by parties well before hearing. That did not occur here.
Application for leave to appeal is refused.
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