Mulligan v Wholesale Skid Steers Pty Ltd
[2012] QCATA 33
•22 February 2012
| CITATION: | Mulligan v Wholesale Skid Steers Pty Ltd [2012] QCATA 33 |
| PARTIES: | Tyronne Paul Mulligan (Applicant) |
| v | |
| Wholesale Skid Steers Pty Ltd (Respondent) |
| APPEAL NUMBER: | APL399-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr J R Forbes, Member |
| DELIVERED ON: | 22 February 2012 |
| DELIVERED AT: | Brisbane |
| ORDER MADE: | Leave to appeal refused. |
| CATCHWORDS : | Application for leave to appeal – minor civil claim – whether leave should be granted – onus of proof not discharged – leave refused Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(a)(i) |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
The Applicant Tyrone Paul Mulligan (“Mulligan”) is a manufacturer and vendor of charcoal, carrying on business at “Tebin” station, near Quilpie in far south-western Queensland.
The Respondent Wholesale Skid Steers Pty Ltd (“Skid Steers”) is a vendor of used excavators, articulated trucks and farm machinery, with premises at Neumann Road, Capalaba, Brisbane.
On or about 22 July 2009[1] Mulligan or his wife telephoned the Respondent and placed an order[2] for a used New Holland LX 865 skid steer[3] loader – a machine with lift arms, to which a scoop or other implement can be attached.
[1]Transcript of hearing before Adjudicator on 2 August 2011 (“Transcript”) page 35.
[2]A “verbal contract”: Transcript page 13 (evidence of Applicant). No documentation: page 36. Understandably the Adjudicator found it difficult to ascertain the precise terms of the agreement, but ultimately his decision did not depend on aspect of the case.
[3]So called because the machine typically has no steering mechanism as such, but is turned by turning the left and right wheel pairs at different speeds, and thus skidding to a different path.
The machine had to be imported from the United States; it arrived at the Applicant’s property on 22 October 2009. There was no pre-delivery inspection by or on behalf of the Applicant.[4] The agreed price was paid in full, by deposit and instalments, by the end of October 2009.[5] Mulligan obtained a warranty, or breakdown insurance, from a third entity, Premium Warranties Australia, but it is not a party to these proceedings.
[4]Transcript page 35.
[5]Transcript page 16.
By Application filed on 7 January 2011 Mulligan sought an order that Skid Steers “take back the [machine] and refund our money”. After an adjournment that seriously inconvenienced the Applicant and his wife, the matter was heard on 2 August 2011. The claim was dismissed.
It is undisputed that the machine broke down on the day of delivery, after running for just a few minutes. The trouble, so it seems, was water in the diesel motor’s fuel injection pump. A likely cause of that problem was a hosing-down of the machine at the port of entry, by the quarantine authorities. The Applicant says that the Respondent agreed to service the machine before delivery; the Respondent disputes that allegation.
In October 2009, as the Adjudicator suggested, the Applicant might have rejected the machine forthwith as unfit for the purpose contemplated, and demanded a refund of the price, but he did not do so. “I realise that now” was the rueful reply.[6] There were no suitable service facilities at or near Quilpie, and the Applicant, understandably, wished to avoid the expense and delay of sending the machine to Brisbane or Toowoomba for repairs. So in the worthy tradition of bush self help, he did the job himself. For some eight or nine months, it appeared that he was successful. Indeed, some nine months after the purchase, the Applicant’s wife wrote to the Respondent expressing satisfaction with the machine.[7] It worked until early in June 2010, when it broke down again, with a seriously damaged injection pump.
[6]Transcript page 35.
[7]Transcript pages 17, 19, 28 (Applicant admits), 36.
It is common ground that in the October 2009-June 2010 period, the machine ran satisfactorily for at least 300 hours.[8] According to the Respondent’s witness Sharon McBrien, the Applicant told her, “in the [earlier] hearing”, that the actual running time was 500 hours.[9] The Applicant did not deny that statement, but told the Adjudicator that he did not know the correct figure at that stage, and that “they put me on the spot”.[10] If the statement was made in a mediation conference it was clearly inadmissible.[11] However, the Adjudicator adopted the lower estimate of 300 hours.[12]
[8]Transcript pages 9 and 10, evidence of Applicant.
[9]Transcript pages 18, 33.
[10]Transcript page 33, evidence of Applicant.
[11]Queensland Civil and Administrative Act 2009, s 83.
[12]Transcript page 37.
The decision in question does not expressly refer to legislation. At the time this contract was made the relevant statute was the Trade Practices Act 1974 (Cth). No finding of misleading or deceptive conduct, or of false or misleading representations was made.[13]
[13]Trade Practices Act 1974 (Cth) ss 52, 53.
The Applicant contends that the Adjudicator erred in not receiving evidence from the Applicant’s wife and Robert Hynes, who was present when the machine was delivered, and when it broke down soon afterwards. However, there was no dispute about delivery or the initial breakdown. Mrs Mulligan would have given evidence about telephone conversations with Sharon McBrien of Skid Steers,[14] but that evidence could not alter the crucial fact of prolonged use of the machine, except, perhaps to confirm the Applicant’s admissions on that point. In short, there was nothing that those witnesses could have added to, or subtracted from the evidence upon which the decision turned, namely the uncontested evidence of the Applicant himself that, after the initial breakdown, the machine ran properly for at least 300 hours, during approximately six months. A court or tribunal is not required to receive evidence that is irrelevant[15], or on points not in dispute, or already well established.[16]
[14]Transcript page 14 (statement by Applicant).
[15]Lawrance v Chief Executive Officer CRS Australia (2006) 42 AAR 539; [2006] FCA 341.
[16]Byrne v Kinematograph Renters’ Society Ltd [1958] 2 All ER 579. See also Rush v WA Amateur Football League Inc [2005] WASC 206; Bailey v Ahearn (1968) 13 FLR 199.
After the decision the Applicant made at least three florid allegations of perjury. On 5 August 2011, in a letter addressed to “Dear QCAT”, “draw[ing] your attention to one of the lies Sharon[17] said [sic].” The accusation was extended to Sharon’s husband David O’Brien as well for “saying they had never spoken with [me]”.[18] On 21 November 2011[19] and 12 December 2011[20] the charge was repeated, without any particulars. On 21 December 2011[21], under the heading: “Respondents’ denial of any contact with Tyronne Mulligan” the Applicant alleges that (a) Jane [Mulligan] spoke to David McBrien at the time of “first contact”; (b) the Applicant spoke to Sharon McBrien on 12 October 2009; and (c) The Applicant spoke to David McBrien on 22 October 2009.
[17]Sharon McBrien, a representative of the Respondent.
[18]Presumably this means prior to commencement of these proceedings.
[19]Ms Smith and Mr Reedman (QCAT): memo of conversation with Mulligan.
[20]Letter Mulligan to Tribunal President.
[21]Submissions by Mulligan filed with Application for leave to appeal.
Before the Adjudicator, there were differences of opinion about who had spoken to whom two years earlier, but it was no part of the Respondent’s case that telephone contacts did not occur. Sharon McBrien said she was “led to believe” that her husband had a telephone conversation with Jane Mulligan.[22] David McBrien recalled that his initial conversation (when the machine was ordered) was with Jane Mulligan. He did not “think” he spoke to the Applicant at any material time.[23] He “honestly [didn’t] recall”[24] any conversation with him; as he recalled, all his conversations were with Jane Mulligan.[25] No suggestion of deliberate untruthfulness was put to either McBrien at the trial. Perjury requires proof, in a court of criminal jurisdiction, beyond reasonable doubt, of “knowingly false testimony ... material to any question then depending in that proceeding”[26] (emphases added).
[22]Transcript page 19; see also page 23.
[23]Transcript page 26.
[24]Transcript page 27.
[25]Transcript pages 30, 31.
[26]Criminal Code (Qld) s 123.
While in principle a judgment obtained by fraud may undoubtedly be set aside,[27] the present imputation of deliberate falsehood on a material point is without substance. This Tribunal has no relevant criminal jurisdiction, and more to the point, the Adjudicator did not regard the differences of opinion about who spoke to whom as in any way material to his decision,[28] the essence of which is this:
“[T]his item is well and truly by July of 2010 at Mr Mulligan’s risk ... I can’t see that I can now sheet it back to the Respondent ... It is simply too late, and in the interim there has been substantial work achieved by the machine, but even with less substantial work, it is always open to the Respondent to say that it has been the maintenance, ... the fuel ... or ... some other matter attributable to the use of Mulligan ... [I]t’s too long to say that the item as delivered was a problem.”
[27]Hip Hoong Fong v H Neotia & Co [1918] AC 888; Hillman v Hillman [1977] 2 NSWLR 739.
[28]Transcript page 35.
In other words, the Adjudicator was not satisfied that the Respondent was liable for the failure of the machine. The onus of establishing that position liability was upon the Applicant, and in the Adjudicator’s view, after the Applicant had used the machine for six months, he was unable to find that it was delivered in an unmerchantable condition. That conclusion was clearly open to him upon the evidence. In my respectful view, the Adjudicator, amid a welter of assertion and counter assertion, often irrelevant, identified the decisive point.
In this type of case there is no appeal as of right; leave is required.[29] An applicant for leave must show that the decision in question is affected, arguably at least, by an appellable error, resulting in a substantial injustice.[30] It is not such an error to prefer one version of the facts to another, or to attribute more weight to the evidence of witness “A” than to the testimony of witness “B”. Findings of fact will not usually be disturbed if they have rational support in the evidence.[31] Leave is not to be given where a party simply desires to re-argue the case, on existing or additional evidence. One clear purpose of a “leave” requirement is to preclude any attempt to conduct a retrial on the merits.[32] It is not nearly enough to express disappointment at the original decision, or a subjective feeling that justice has not been done.[33]
[29]Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(a)(i).
[30]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; Drew v. Bundaberg Regional Council [2011] QCA 359 at [19].
[31]Fox v Percy (2003) 214 CLR 118 at 125-126; [2003] HCA 22.
[32] Contrast QCAT Act, s 20 (review jurisdiction).
[33] Robinson v Corr [2011] QCATA 302 at [7].
I can find no error of law or fact in the decision under appeal that warrants leave to appeal.
ORDER
Application for leave to appeal dismissed. No order as to costs.
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