National Ceramic Industries Australia v Harkins

[2015] QCATA 94

CITATION: National Ceramic Industries Australia v Harkins [2015] QCATA 94

PARTIES:	National Ceramic Industries Australia (Applicant/Appellant)
v
Patricia Joy Harkins (Respondent)

APPLICATION NUMBER: APL072 -15

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: A/Deputy President Stilgoe OAM

DELIVERED ON: 26 June 2015

DELIVERED AT: Brisbane

ORDERS MADE: 1.    Leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – CONSUMER/TRADER – where tiles purchased – where tiles defective – where tribunal ordered replacement - whether grounds for leave to appeal

APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – PRACTICE AND PROCEDURE – where applicant did not call evidence to prove her case – where hearing adjourned to allow witnesses to be called – whether grounds for leave to appeal

Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Pickering v McArthur [2005] QCA 294
Chambers v Jobling (1986) 7 NSWLR 1

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 (Qld) (QCAT Act).

REASONS FOR DECISION

1. In November 2013, Patricia Harkins bought floor tiles manufactured by National Ceramic Industries Australia. When the tiles were being laid, the installer noticed that some of them had white marks on their edges. The tiler contacted National Ceramic about the problem and was advised that there had been a batch problem, and that the tiles with white patches should not be used, or that the tiler could cut the white patches off.

2. Soon after installation, Ms Harkins noticed other problems with the tiles. They marked without apparent cause. White chips and blemishes were appearing. Marks that looked like “little eruptions” appeared on the surface of the tiles. Ms Harkins wanted all the floor tiles replaced. National Ceramic offered to cover the cost of replacing only the affected tiles. Ms Harkins filed a claim for the cost of replacing all of the tiles. A Magistrate, sitting in the minor civil disputes jurisdiction of the tribunal, found in favour of Ms Harkins.

3. National Ceramic wants to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]

   [1]QCAT Act s 142(3)(a)(i).

   [2]Pickering v McArthur [2005] QCA 294 at [3].

4. National Ceramic has three grounds of appeal. It says that Ms Harkins’ tilers were not qualified to give expert evidence at the hearing. It says the learned Magistrate erred in adjourning the hearing to allow Ms Harkins to call evidence about the condition of the tiles. It says that it sold 2,726.34 m² of this tile batch and only Ms Harkins has complained about the quality.

5. National Ceramic submits that the tiles should have been tested by a suitably qualified person or registered institution to determine whether or not they had an inherent glazing fault.

6. Ms Harkins first notified her complaint about the tiles in December 2013. National Ceramic inspected the tiles in March 2014. Ms Harkins filed her claim on 9 September 2014, almost six months later. The final day of hearing was 9 December 2014. If National Ceramic thought it was important to have independent testing of the tiles, it had ample time in which to arrange that test. Its failure to do so cannot be a ground of appeal.

1. Whether the tiles were faulty was a question of fact. The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[3]  An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[4] 

   [3]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.

   [4]Chambers v Jobling (1986) 7 NSWLR 1 at 10.

1. Ms Harkins gave evidence about the faulty tiles. She called Darryl Bishop, a licensed tiler, who gave evidence about the condition of the tiles. She called Brian Annan, a tiler of 35 years’ experience. She called Anthony Erhart, a floor preparer. Their evidence was consistent; the tiles were faulty.

2. National Ceramic called its sales and marketing manager, Andrew Stubbs. Mr Stubbs gave hearsay evidence about the findings of National Ceramic’s agent, Clayton Shaw.  That evidence confirmed that at least some of the tiles were faulty.

3. All the witnesses confirmed that some tiles had chips on the edge. All witnesses confirmed that the surface of some tiles were chipped. Mr Bishop identified blisters in the centre of the tiles, which worsened over time[5]. Mr Annan told the learned Magistrate that he did not think the tiles were fit for purpose[6]. Mr Erhart told the learned Magistrate he did not think the tiles were fit for their intended purpose and they were not of an acceptable quality[7]. Even Mr Shaw conceded the tiles had some defects[8]. The evidence is capable of supporting the learned Magistrate’s conclusions and I can find no compelling reasons to come to a different view.

   [5]Transcript page 1-11, lines 33 – 41.

   [6]Transcript page 2-3 line 20, to page 2-4, line 35.

   [7]Transcript page 2-11, lines 20- 28.

   [8]Transcript page 2-14, line 30 to 2-15, line 32.

4. Ms Harkins told the learned Magistrate she would not have bought the tiles if she knew of their condition[9]. That evidence was not disputed.

   [9]Transcript page 1-15, lines 15 – 25.

1. National Ceramic takes issue with the learned Magistrate allowing Ms Harkins an adjournment to call further evidence. It is true that an adjournment in these circumstances does not fit well with the tribunal’s obligation to hear matters quickly[10]. Ms Harkins was wrongly advised by her lawyers[11] and, as a consequence, the learned Magistrate decided an adjournment was appropriate[12]. Mr Stubbs consented to the adjournment on that basis[13]. National Ceramic cannot now complain that the hearing was procedurally unfair.

   [10]QCAT Act s 3(b).

   [11]Transcript page 1-7, lines 25 – 38.

   [12]Transcript page 1-9, lines 14 – 26.

   [13]Transcript page 1-16, lines 6 – 22.

1. National Ceramic told the learned Magistrate that Ms Harkins’ tiles were the only ones that exhibited this problem[14]. The restatement of this evidence is not, in itself, a ground of appeal.

   [14]Transcript page 2-16, lines 23 – 25.

1. There is no reasonably arguable case that the learned Magistrate was in error. Leave to appeal should be refused.