Nipperess v Pace's Automotive Refinishing Pty Ltd
[2012] QCATA 253
•5 December 2012
| CITATION: | Nipperess v Pace’s Automotive Refinishing Pty Ltd [2012] QCATA 253 |
| PARTIES: | Danny John Nipperess |
| v | |
| Pace’s Automotive Refinishing Pty Ltd |
| APPLICATION NUMBER: | APL197-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 5 December 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for leave to appeal is refused. |
| CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the Respondent brought a claim against the Appellant for monies due under a contract for services – where the Tribunal ordered the Appellant pay monies due – whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act2009, ss 32, 143 Chambers v Jobling (1986) 7 NSWLR 1 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’).
REASONS FOR DECISION
Mr Nipperess wanted to restore his 1964 EH Holden. Mr Pace, from Pace’s Automotive Refinishing Pty Ltd (‘Pace’), told Mr Nipperess that he would charge around $13,000 to paint the car if Mr Nipperess delivered it stripped, with the rust removed and the panels disassembled.
Work on the car progressed over a period of almost 12 months. Pace’s Automotive rendered invoices totalling $27,539.35. Mr Nipperess refused to pay any more than the $13,000 he initially discussed with Mr Pace. A Magistrate, sitting as a member of the tribunal in its minor civil disputes jurisdiction, ordered Mr Nipperess pay Pace’s Automotive Refinishing Pty Ltd an additional $14,865.85.
Mr Nipperess has filed an application for leave to appeal. He says that the learned Magistrate’s decision did not adequately address his submissions and was against the weight of evidence. He also says that the learned Magistrate did not give him sufficient opportunity to call witnesses to give evidence at the hearing when such witnesses could have been available by telephone.
Because this is an appeal from a decision of the Tribunal in its minor civil dispute jurisdiction, leave is necessary.[1] Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage;[2] or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief.[3] Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?[4]
[1] Section 143 Queensland Civil and Administrative Tribunal Act 2009.
[2]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; Melver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
[3] Cachia v Grech [2009] NSWCA 232 at [2].
[4] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[5]
[5]Fox v Percy (2003) 214 CLR 118 at 125-126.
An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.[6] As the High Court said in Fox v Percy:[7]
In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.[8]
[6] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[7] (2003) 214 CLR 118.
[8] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
I have listened to a recording of the hearing. Mr Nipperess’ submissions to the Appeal Tribunal do no more than restate the evidence that was before the learned Magistrate. The learned Magistrate’s decision was capable of being supported by the evidence and was not, as Mr Nipperess asserts, contrary to the weight of evidence. There is nothing in that transcript that persuades me that the learned Magistrate, based on the evidence before him, could not have arrived at the conclusion he did.
I am satisfied that the transcript also demonstrates that the learned Magistrate considered Mr Nipperess' submissions when coming to a decision.
The learned Magistrate’s reasons for decision did not expressly address Mr Nipperess’ submissions that the invoices from Pace exceeded the invoices from Mr Shepherd. During the hearing, Mr Pace did tell the learned Magistrate why that was so: Mr Shepherd was using consumables supplied and paid for by Pace. It is implicit in the learned Magistrate’s decision that he accepted Mr Pace’s explanation.
Mr Nipperess now makes submissions to the Appeal Tribunal that the learned Magistrate should have found that Pace was fraudulent or that its conduct was misleading and deceptive. Mr Nipperess did not raise these issues in the response he filed on 21 February 2012. At the resumed hearing, Mr Nipperess’ submissions to the learned Magistrate were, in effect, that he was prepared to pay something extra but that the work was not worth $28,000. Mr Nipperess made no submission at the hearing about fraud or misleading and deceptive conduct and, based on the evidence before him, I can find no reason for the learned Magistrate to have considered those issues.
There is no substance in the submission that the learned Magistrate did not give Mr Nipperess sufficient opportunity to call witnesses.
At the start of the hearing on 21 May 2012, the learned Magistrate told the parties he would hear from any witnesses they wished to call.
At the end of that hearing, the learned Magistrate told both parties that they needed more evidence. The learned Magistrate told Mr Pace that, if he wanted to recover the full amount of the claim, he would have to prove extra work was done and the basis for the charge. The learned Magistrate told Mr Nipperess that he would have to produce evidence of the reasonable costs of the work to demonstrate that he had been overcharged. The learned Magistrate did not say how the parties should provide that additional evidence.
I cannot find a basis for Mr Nipperess’ conclusion that he could only provide documentary evidence at the resumed hearing. Mr Nipperess did have the opportunity to call witnesses at the resumed hearing. He did not take that opportunity. The learned Magistrate’s conduct of the hearing was not the cause of Mr Nipperess’ omission.
There is no question of general importance that should be determined by the appeal tribunal; there is no reasonably arguable case that the learned Magistrate was in error; there is no reasonable prospect of substantive relief on appeal; and there is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.
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