Punchard v K&G Automotive Services Pty Ltd

[2014] QCATA 26

CITATION: Punchard v K&G Automotive Services Pty Ltd [2014] QCATA 26

PARTIES:	Karen Punchard (Appellant)
v
K & G Automotive Services Pty Ltd (Respondent)

APPLICATION NUMBER: APL542-13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Dr J R Forbes, Member

DELIVERED ON: 21 February 2014

DELIVERED AT: Brisbane

ORDER MADE:

Leave to appeal is refused.

CATCHWORDS:

APPEAL – MINOR CIVIL DISPUTE – claim for moneys due for automotive repairs – counterclaim for damages for negligence by bailee repairer – damage to vehicle by fire after repairs completed – whether respondent repairer liable for damage – whether fire caused by defective work or spontaneous combustion – whether evidence of respondent’s expert preferable to applicant’s expert – whether applicant may recover from respondent after applicant indemnified by her insurer – whether audio-recording admissible – whether recording, if admitted, material to issue of negligence – whether applicant/appellant should be permitted to make fresh case – whether leave to appeal should be granted – limits of applications to appeal considered – leave refused

Invasion of Privacy Act 1971 (Qld) s 4, s 43, s 46
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 20, s 32, s 61, s 143

Alyssa Treasury Services Ltd and Commissioner of Taxation [2011] AATA 578, cited

Drew v Bundaberg Regional Council [2012] QPELR 350; [2011] QCA 359, cited
Felton and Anor v Raine and Horne Real Estate [2011] QCATA 330, cited

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited
Goninan & Co Pty Ltd v Direct Engineering Services Pty Ltd (2007) 33 WAR 182, cited
Hawkins v Pender Bros Pty Ltd [1990] 1 Qd R 135, cited
Houghland v R R Low (Luxury Coaches) Ltd [1962] 1 QB 694. cited
In Re W (an infant) [1971] AC 682, cited

International Professional Services v Tritone Nominees Pty Ltd [2011] QCATA 332, cited

Le Cerf v The Commissioner of Police [2011] QDC 235, cited
Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611; [2010] HCA 16, cited
Orr v Holmes (1948) 76 CLR 632; [1948] HCA 16, cited

QUYD Pty Ltd v Marvass Pty Ltd  [2009] 1 Qd R 41; [2008] QCA 257, cited

R v Workman (2004) 60 NSWLR 471; [2004] NSWCCA 213, cited

Robinson v Corr [2011] QCATA 302, cited

Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, cited
Trans-Motors v Robertson Buckley & Co [1970] 2 Lloyd’s Rep 224, cited
Walton v New Lakelands Pty Ltd [2013] QCATA 49, citedhttp://

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. Karen Punchard (the appellant) seeks leave to appeal a decision of the Tribunal that she pay the respondent (“K & G”) $2553 for automotive services, and dismissing her counterclaim for $1,670 for negligence as bailee[1] of her Honda Prelude sedan.

   [1]The normal standard of reasonable care in the circumstances applies: Houghland v R R Low (Luxury Coaches) Ltd [1962] 1 QB 694; Trans-Motors v Robertson Buckley & Co [1970] 2 Lloyd’s Rep 224.

Extension of time

1. The decision was made on 9 September 2013 and the application for leave was filed on 6 January 2014 – admittedly out of time[2]. The first question, then, is whether time for filing the present application should be extended[3] to 6 January 2014.    

   [2]QCAT Act s 143(3).

   [3]Ibid s 61(1)(b).

2. Curiously neither party has made submissions on that issue. In particular, K & G does not contend that an extension would cause it irremediable prejudice or detriment.[4]

   [4]Ibid s 61(3).

3. While I do not regard the respondent’s silence as consent, I consider that the interests of justice would be served by allowing the extension and deciding the application upon its merits, free from any threshold technicality.

Transaction and mishap

1. In late July 2012 Punchard’s co-owner Daley delivered the vehicle to K & G to be fitted with a new engine[5]. In due course the work was completed, and an employee of K & G took the car for an uneventful test drive, lasting some 5 to 10 minutes. The car was then parked outside K & G’s workshop, where it remained, without incident, for about 2 hours.[6] After that time, due to some cause that has not been conclusively identified, a fire erupted under the bonnet on the driver’s side, adjacent to the battery.[7]

   [5]Transcript of hearing 9 September 2012 (“Transcript”), page 8 line 8 (Kuva); line 37 (Punchard).

   [6]Ibid page 6 line 31; page 44 line 27 (Kuva).

   [7]Ibid page 37 lines 17-20 (McGown).

Responsibility – the competing views

1. Punchard’s case is that the fire resulted from an electrical short-circuit, due to K & G’s negligent or incompetent work in reconnecting the wiring “harness” to the engine assembly, including the self-starter.

2. K & G’s case is that the probable cause, and one beyond its control, was a melting or explosion of the car’s battery.[8] The car had travelled some 300,000 kilometres[9], and K & G was not required to attend to the battery, which the appellant had had “for ages”.[10]

   [8]Ibid page 6 line 30 (Kuva); Counterclaim filed 29 May 2013 attachment page 1.

   [9]Ibid page 28 line 36 (Smith, witness for appellant).

   [10]Punchard to Kuva, conversation recorded 24 July 2012.

3. Each party called a technician to testify to the probable cause of the fire.

Expert evidence

1. For the appellant Punchard, opinion evidence was given by Adam Mark Smith, an “A” grade mechanic, but not an auto electrician.[11]  He recalled one experience with an “exploding” battery.[12] However, in this case he considered that the probable cause of the fire was faulty re-installation of the electrical “harness”, leading to a short circuit “somewhere”.[13]

   [11]Transcript page 27 line 22 (Smith).

   [12]Ibid page 27 lines 4-5 (Smith).

   [13]Ibid page 26, lines 15, 19, page 30 line 2.

2. Smith made no physical inspection of the car; his opinion was based on photographs taken by Daley.[14]

   [14]Ibid page 30 line 25, page 31, lines 1, 19, 39 (Smith); page 33 line 21 (Punchard).

3. Expert evidence for K & G was given by Andrew Robert McGown, an auto electrician with 11 years’ experience in that business.[15] He made a physical inspection of the car soon after the incident. In his opinion a battery collapse was the most likely cause of the fire.[16] In support of that opinion he said that, if there had been a short circuit it would have been impossible to test-drive the car for 10 or even 5 minutes,[17] as such an electrical fault would have immobilised the vehicle in a few seconds.[18] He was not asked to consider the possibility that a short circuit was delayed for some time.

   [15]Ibid page 38 line 33 (McGown).

   [16]Ibid page 39 line 21, page 42 line 21, page 43 line 25 (McGown).

   [17]Ibid page 37 lines 41-44, page 38 lines 29-30 (McGown).

   [18]Ibid page 37 lines 41-44 (McGown).

4. The Adjudicator was not satisfied that Punchard (upon whom the onus lay) had proved negligence on K & G’s part caused the fire.[19]  In so finding it is clear that, as judge of fact, he preferred the evidence of McGown to that of Mr Smith, as he was perfectly entitled to do. There can be no suggestion that his preference was unreasonable. It is common ground that the fire had an electrical origin. McGown is a duly qualified auto electrician; Smith is not. McGown made a physical inspection of the car; Smith did not. Smith admitted past experience of a battery failure as described by McGown.[20]

   [19]Ibid page 46 line 41 (work performed “competently”); page 46 lines 43-44; page 47 lines 11-12 (nothing “that would suggest negligence”).

   [20]Ibid page 27 lines 4-5 (Smith).

Consequent findings

1. It follows, as the Adjudicator found, that K & G is not liable for the $500 excess that Punchard paid to her insurer; nor is it liable to pay compensation for damage to the car in the amount claimed, or any amount. It should be noted that the latter claim is a patent attempt at “double dipping”. Punchard’s insurer paid her $3,219.50 as full value of the car.[21]

   [21]Ibid page 6 line 14, page 13 line 38 (Punchard); page 6 lines 1-2 (Daley).

Evidence excluded – whether material

1. The application for leave to appeal alleges an error of law (exclusion of a tape recording) and proceeds, at considerable length, to assert new evidence and argument in a misconceived[22] quest to have the case heard and determined de novo.

   [22]For reasons set out below: see paragraph [21].

2. The recording in question was made by Punchard. It records a conversation between the principal of K & G (Kuva) and herself on 24 July 2012.  The Adjudicator’s refusal to receive this evidence was presumably based on the Invasion of Privacy Act 1971, although no specific reasons appear.[23] Section 43(1) of that Act provides that it is an offence to use ‘a listening device[24] to overhear, record, monitor or listen to a private conversation’. However, there is an exception where ‘the person using the listening device is a party to the private conversation’.[25] Even if the conversation was truly “private”[26] the recording was lawful. The maker of the recording, Punchard, was a party to the conversation.

   [23]Transcript page 12 line 39.

   [24]That is, ‘any instrument, apparatus, equipment or device capable of being used to overhear, record, monitor or listen to a private conversation simultaneously with its taking place’: Invasion of Privacy Act 1971 s 4.

   [25]Invasion of Privacy Act 1971 s 43(2)(a); Alyssa Treasury Services Ltd and

   Commissioner of Taxation [2011] AATA 578 at [14]; Le Cerf v The Commissioner of Police [2011] QDC 235 at [4]; R v Workman (2004) 60 NSWLR 471; [2004] NSWCCA 213 at [7].

   [26]“Private conversation” means any words spoken ... in circumstances that indicate that [the parties] desire the words to be heard or listened to only by themselves or that indicate that either of those persons desires the words to be heard or listened to only by themselves and by some other person, but does not include words spoken by one person to another person in circumstances in which either of those persons ought reasonably to expect the words may be overheard ... by some other person ... : Ibid s 4.

3. But any error in that respect caused no injustice. Punchard remained free to give oral evidence of the conversation[27], which she did not do. 

   [27]That is, from memory, without reference to the recording. Such evidence would not have come to Punchard’s knowledge “as a result, direct or indirect, of the use of a listening device” (Invasion of Privacy Act 1971 s 46(1)) but by her actual participation in the communication.

4. Further, and more important, the recording, as transcribed[28], does not support the interpretation Punchard seeks to place upon it, namely that –

   Mr Kuva did in fact make a verbal contract with Karen Punchard admit [sic] liability and agree to cover costs.[29]

   [28]A transcript is attached to the application for leave.

   [29]Application for leave to appeal Part D paragraph 5.

5. The recording, as transcribed by Punchard herself, presents Kuva as a man less than fluent in English conversation.[30]  But it is tolerably clear that any acceptance of liability by him was contingent upon K & G’s insurer’s finding that K & G was at fault, and a report by K & G’s expert, McGown. Materially, Kuva is recorded as saying:

   Well the power [sic – fire?] started after we finished it, was ready to go. Suddenly we heard boom, caught on fire ... the battery, that’s where it started. ... Normally, on a short circuit, you have a fuse to protect the system. When the car was sitting here for almost two hours and nothing happened  ... We’re getting an auto electrician to have [a look[31]] at it ... [W]hen I was waiting to see if we are liable, I called our insurance, they’ll pay for it[32] ... So we’ll see how we go with our insurance, and I’m waiting on the auto electrician to come ... That’s why I’m waiting for the auto electrician to come.

   [30]An impression confirmed on listening to the recording.

   [31]Words recorded, not transcribed.

   [32]An undertaking that Kuva was not authorised to give.

6. In the event, K & G’s insurer did not accept that its client was liable, and it was Punchard’s own insurer that indemnified her, pursuant to her policy covering the car. There is no evidence that Punchard’s insurer has taken, or threatened, a subrogated action against K & G. In context, Kuva’s statement that his insurers would pay is a truncated version of “If it’s our fault they will pay”. On a fair reading of the transcribed recording, with due allowance for Kuva’s rather limited command of spoken English, it does not dispose of his sworn evidence denying liability, or Mr McGown’s opinion that faulty rewiring by K & G was not to blame. Kuva’s acceptance of liability, if any, was to await a report by his insurers and the auto electrician. At no stage of the trial did Punchard plainly assert, as she now asserts on appeal, that, before the auto electrician reported, Kuva admitted liability.

The appellant seeks a re-trial

1. The rest of the material attached to the application for leave is evidence and argument that was not presented at the trial. No sufficient reason for that omission has been given, and it should not be admitted now. The reception of additional evidence at the appeal stage is not a routine procedure. If it were, litigation might be intolerably protracted, against the policy of the courts, and of this Tribunal.[33]

   [33]QCAT Act ss 3(b), 4(b) and (c); Hawkins v Pender Bros Pty Ltd [1990] 1 Qd R 135; Orr v Holmes (1948) 76 CLR 632 at 640-641; Goninan & Co Pty Ltd v Direct Engineering Services Pty Ltd (2007) 33 WAR 182; Walton v New Lakelands Pty Ltd [2013] QCATA 49 at [5].

Applications for leave to appeal - proper limits

1. An application for leave to appeal is not an occasion for a retrial de novo, or for “second guessing” of questions of fact or credit that are the province of the primary decision-maker. Indeed, the very requirement to obtain leave is to preclude attempts to retry cases on the merits,[34] or to introduce evidence or arguments that might have been led in the first place, but were not. On such an application the question is whether there is a reasonably arguable case of error which, if not corrected, will cause substantial injustice to the applicant.[35] It is not nearly enough for an applicant to express disappointment, or to entertain a subjective feeling that justice has not been done.[36] It is not an appellable error to prefer one version of the facts to another, or to give less weight to one party’s case than he or she thinks it should receive. Findings of fact will not normally be disturbed if they have rational support in the evidence, even if another reasonable view is available.[37] Where reasonable minds may differ, a decision cannot properly be called erroneous, simply because one conclusion has been preferred to another possible view.[38]

   [34]Distinguish QCAT Act s 20 (review jurisdiction).

   [35]QUYD Pty Ltd v Marvass Pty Ltd  [2009] 1 Qd R 41; [2008] QCA 257 at [6]; Drew v Bundaberg Regional Council [2012] QPELR 350; [2011] QCA 359 at [18]; Felton and Anor v Raine and Horne Real Estate [2011] QCATA 330 at [19]; International Professional Services v Tritone Nominees Pty Ltd [2011] QCATA 332.

   [36]Robinson v Corr [2011] QCATA 302 at [7].

   [37]Fox v Percy (2003) 214 CLR 118 at 125-126.

   [38]Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at [131]; In Re W (an infant) [1971] AC 682 at 700 per Lord Hailsham; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1025.

Conclusion

1. The decision in question turned on questions of fact, credit, and weight of expert evidence. Those were peculiarly matters for the Adjudicator, with which an appeals Tribunal should not interfere. Essentially the Adjudicator preferred the evidence of McGown, which he was perfectly entitled to do; his preference is quite understandable.

2. The appellant has not demonstrated any basis for a grant of leave to appeal, and I discern none. The application will be dismissed. Order accordingly.

   ORDERS

   Leave to appeal is refused.