Richards v Phipps
[2012] QCATA 123
•24 July 2012
| CITATION: | Richards v Phipps [2012] QCATA 123 |
| PARTIES: | Jackson Richards (Applicant/Appellant) |
| v | |
| Nathan Phipps t/as Motorsport Solutions Australia (Respondent) |
| APPLICATION NUMBER: | APL291-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Mr Charles Brabazon QC, Member |
| DELIVERED ON: | 24 July 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Allow the appeal.(a) Set aside the order made on 2 August 2011.(b) Remit the matter for a fresh hearing before Mr John Bertelsen, as adjudicator.(c) Reserve any question of costs.(d) |
| CATCHWORDS: | Hearing – parties in person – rules of evidence – no objection to hearsay evidence – evidence rejected without warning Queensland Civil and Administrative Tribunal Act2009, ss 28-29 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
This is a dispute about the construction of a dune buggy. Mr Richards wanted a dune buggy. Mr Phipps agreed to build one for him. He worked on it from October 2009 to March 2010.
Before the job was finished a dispute arose. Mr Richards took possession of the incomplete buggy. He had paid Mr Phipps $10,929. He said that the work was so badly done, that he wanted his money back. Mr Phipps refused to do that.
Mr Richards made a QCAT claim against Mr Phipps. Mr Phipps did not respond. Mr Richards got a judgment by default, for $7,100. Mr Phipps found out about the judgement, and asked that it be suspended, so that he could have a hearing.
That was done. A member then heard their dispute on 27 June and 2 August 2011. Mr Richards asked for the return of his $10,929. Mr Phipps resisted that claim, and asked for $1,000 – the value of a trolley carrying the buggy, and not returned.
The member awarded Mr Richards $50. He dismissed the trolley claim. Mr Richards appealed. He says that the member was wrong to dismiss almost all of his case. Is he right?
Mr Richards and Mr Phipps appeared in person, without legal assistance. They called no other witnesses. Mr Richards went first. He read from three pages of notes, later handed up to the member. He complained of many defects in Mr Phipps work.
After a little time, the member asked Mr Richards about the source of his information about the buggy, and its defects. Mr Richards explained that he was an electrician and that he had made notes of things that others “had told him about the work on the buggy.” He said “that he could not afford an engineer to sit down and write a full report.” He had obtained information from mechanical engineers, boiler makers and a sheet metal worker. He spoke to a welder. He spoke to CAMS – the Confederation of Australian Motor Sports – as the buggy had to be built to satisfy the CAMS off-road standards. He spoke to the Suzuki workshop at Springwood about the mounting of the engine to the body of the vehicle.
The member did not make any immediate comment about those sources of information. Mr Richards continued on presenting his case. The hearing was adjourned to 2 August. Mr Phipps then addressed the member. He spoke from written notes, which he also handed up.
At the end of the submissions, the member immediately gave oral reasons for his decision. He mentioned various parts of the evidence. He was troubled about evidence that was only Mr Richards’ opinion –
“Certainly he has observed and listened to other people but there is no independent evidence of such inadequacy … this is an informed Tribunal and we can take into account the sources of evidence from different places, in particular cases like this where there are issues of inadequacy alleged, rather than pointing to a number of photographs or making your own statements to what is adequate, an independent statement as to what is adequate is appropriate.”
He went on,
“… I asked the question of Mr Richards, did he have any independent evidence, and he answered no, his evidence was a compilation of evidence from other people … that is a problem for Mr Richards in his case… I still have to be satisfied that on the evidence there is sufficient evidence to say that the materials supplied for this job were inadequate… to my mind I have not necessarily been satisfied as to the standard required for that evidence to be accepted… the difficulty with this case has been the lack of particularisation of the evidence. I can only act on the basis of the evidence which … is adequate …
… there is evidence from Mr Phipps which gives a reasonable explanation in a number of areas, such as the powder coating area … I have become aware of the extent … of the enquiries and the work that Mr Phipps actually did.”
The consequences are unfortunate. The member knew what Mr Richards was doing by relying on the expertise of others, who were not called as witnesses. He did not explain that there might be dangers in that course. The evidence was admissible. This Tribunal is not bound by the rules of evidence, and may inform itself in any way it considers appropriate – section 28 of the QCAT Act.
The Tribunal must take all reasonable steps to ensure that a party understands the practices and procedures of the Tribunal – section 29 of the Act.
The Member erred, in not giving proper consideration and due weight to Mr Richards’ evidence, after being told that it was based on the expertise of others, and making no objection to it.
As for Mr Phipps’ evidence – the member said that his evidence gave a reasonable explanation in a number of areas, and “… I have become aware of the extent of the enquiries and the work that Mr Phipps actually did.” That passage follows several observations, at pp60-61 of the transcript, where he refers to work done by Mr Phipps – but comes to no clear conclusion about his efforts to defend himself against Mr Richard’s attacks. His “reasonable explanation in a number of areas” needed to be dealt with in detail, and that was not done.
The dispute must be remitted for a rehearing. It seems appropriate to remit it to the member who heard it first, on 12 August 2010.
The parties might give some thought to ways in which another hearing could be better understood by the adjudicator, who is unlikely to have any particular knowledge of the mechanical issues. An inspection of the vehicle might be helpful – perhaps it could be brought into the QCAT car park – or the member might agree to a view elsewhere. Perhaps some of the issues are now better understood by the parties – in which case, the really contested issues could be the focus of the hearing.
It will be helpful if the hearing is on one occasion, unlike the previous interrupted hearing; I will ask the case manager to endeavour to set it down for a 9am to 1pm hearing.
Order that:
(a) The appeal is allowed.
(b) Set aside the order made on 2 August 2011.
(c) Remit the matter for a fresh hearing before Mr John Bertelsen, as adjudicator.
(d) Reserve any issue about costs.
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