Rogers v Thomson
[2024] QCATA 114
•14 October 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Rogers v Thomson [2024] QCATA 114
PARTIES:
JAMES KENNETH ROGERS (appellant)
v
RICHARD LESLIE THOMSON (respondent)
APPLICATION NO/S:
APL294-23
ORIGINATING APPLICATION NO/S:
MCD999-22
MATTER TYPE:
Appeals
DELIVERED ON:
14 October 2024
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Judicial Member Stilgoe OAM
ORDERS:
Leave to appeal is refused
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW where appellant brought claim under the Australian Consumer Law for an alleged failure to service a boat with due care and diligence – where respondent made counterclaim for unpaid invoice – where Tribunal made orders dismissing claim and awarding compensation for counterclaim – where appellant claims the Tribunal failed to provide procedural fairness, made errors of fact and errors of mixed fact and law – where Tribunal heard from the appellant and allowed them to make submissions in reply – where Tribunal’s findings were open on the evidence before it – whether the appellant should be granted leave to appeal
Competition and Consumer Act 2010 (Cth) Sch 2
Queensland Civil and Administrative Tribunal Act 2009 s 142
Chambers v Jobling (1986) 7 NSWLR 1
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Karpik v Carnival PLC [2023] FCA 1280
Kioa v West (1985) 159 CLR 550Pickering v McArthur [2005] QCA 294
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
It is often said that loose lips sink ships, in this case a faulty seal did just that.
In late 2017, James Rogers bought a second-hand boat in a private sale. Shortly after, he took that boat to be serviced by Richard Thomson. The invoice rendered categorised the service as a “major service” and was in the amount of $975.03.
In November 2018, the boat began taking in water while moored. It sank. Mr Rogers lodged a claim with the boat’s insurer for the damage to the vessel, totalling $15,089.75.
The insurer’s loss adjuster determined that the cause of the water ingress was the failure of a seal on the boat’s stern drive. At Mr Rogers’ request, Mr Thomson wrote a letter to the boat’s insurer stating that he did not detect corrosion on the faulty seal during the service.
Mr Rogers alleges that, prior to writing the letter, Mr Thomson apologised for the damage to the boat and stated that he should have replaced the seal.
Though damage stemming from the failure of a seal was excluded from the boat’s insurance policy, Mr Rogers’ insurer offered to pay 50% of the claim. Mr Rogers accepted this offer and was paid $7,044.87.
Around the same time, Mr Rogers brought his boat back to Mr Thomson for the assessment and repair of the boat’s engine. Mr Rogers claims that he was quoted a figure between $1,200.00 and $1,500.00 for the work. Mr Thomson completed the repair work, rendered no invoice, and returned the boat.
In March 2021, Mr Thomson issued an invoice for the repair of the boat’s engine in the amount of $4,829.12. Mr Rogers disputes that amount as being inflated from the original quote.
Mr Rogers applied to the Tribunal seeking damages in the amount of $5,255.13 (later amended to $8,204.88) for breach of contract and, alternatively, compensation under the Australian Consumer Law[1] (“ACL”). He says his loss was caused by Mr Thomson’s failure to properly service the boat which he says caused the boat to sink.
[1]Competition and Consumer Act 2010 (Cth) Sch 2.
In response, Mr Thomson filed a counterapplication seeking $7,347.94, being the invoiced amount and additional fees.
The applications were heard in August 2024. The learned Adjudicator dismissed Mr Rogers’ application and awarded Mr Thomson $4,829.12.
Mr Rogers now wishes to appeal that decision. He says that the learned Adjudicator failed to provide procedural fairness; made erroneous findings of mixed fact and law; and made erroneous findings of fact.
Because this is an appeal from a decision of the Tribunal in its minor civil disputes jurisdiction, leave is necessary.[2] 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.[3]
[2]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 142(3)(a)(i).
[3]Pickering v McArthur [2005] QCA 294, [3].
Did the Tribunal deny procedural fairness to Mr Rogers?
Mr Rogers has not filed submissions relating to this ground, though it is raised in his application for leave to appeal.
As Mason J (as his Honour then was) observed in Kioa v West,[4] the requirements of procedural fairness must be adjusted to the statutory framework governing the Tribunal in question:
What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting: Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 552-3; National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 at 311, 319-321.
In this respect the expression “procedural fairness” more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations …
[4](1985) 159 CLR 550, 584-585.
The learned Adjudicator allowed Mr Rogers and Mr Thomson to state their cases whilst referring to their evidence. The learned Adjudicator questioned both parties on their evidence and Mr Rogers was allowed to respond to Mr Thomson’s submissions.[5]
[5]T1-10, lines 3-8.
The hearing of the matter was brief, but this reflects the workload of the Tribunal and its requirement to deal with matters expeditiously. There is no reasonable argument that the Tribunal denied Mr Rogers procedural fairness.
Did the Tribunal make errors of fact and law?
Mr Rogers states that the Tribunal erred in finding that the initial service on the boat was not a major service. He says the Tribunal then misapplied s 60 of the ACL by not finding that Mr Thomson had breached the requirement to render the service with due care and skill.
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.[6] An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.[7]
[6]Dearman v Dearman (1908) 7 CLR 549, 561; Fox v Percy (2003) 214 CLR 118, 125-126.
[7]Fox v Percy (2003) 214 CLR 118, 128; Chambers v Jobling (1986) 7 NSWLR 1, 10.
The invoice in question states that the works rendered were a major service. The items on the invoice include the parts used, including oil and other spark plugs, and labour.
During the hearing, the learned Adjudicator commented that the invoiced items “did not look like a major service”[8] and questioned Mr Rogers on whether he had asked for a major service.[9] Mr Rogers did not provide submissions or evidence on what a ‘major service’ would entail. He did not provide evidence, outside of his own verbal and written submissions, that he had requested a major service, and conceded that it “did not seem like [he] did receive that service”.[10]
[8]T1-4, lines 11-12.
[9]Ibid, lines 7-9.
[10]Ibid, lines 4-5.
Mr Thomson submitted that the service was a routine tune-up.[11] His letter to the insurer also notes that the service was routine. The learned Adjudicator placed significant weight on a letter sent to Mr Rogers by Mr Thomson in June 2021, in which Mr Thomson stated, inter alia, the service was routine.
[11]T1-8, lines 5-7.
The invoices rendered by Mr Thomson, who is a sole trader, appear, with respect, ad hoc. They contain a letterhead but are inconsistent in their formatting and appear to be typed by Mr Thomson, rather than electronically generated. This, in my view, would support an inference that the ‘major service’ heading on the invoice was inaccurate or an error.
It is also significant that Mr Thomson’s version of events was consistent with written material pre-dating the applications to the Tribunal. Conversely, Mr Rogers relied largely on his own written and verbal submissions.
On the evidence before the Tribunal it was reasonable for the learned Adjudicator to place more weight on Mr Thomson’s evidence and make a finding that the original service was not a ‘major service’. I am not convinced they were in error to do so.
I am also not convinced that the Tribunal erred in not finding that Mr Thomson breached s 60 of the ACL. There was no clearly articulated argument before the Tribunal as to whether the service actually provided by Mr Thomson was in breach of s 60.
As noted by the learned Adjudicator, Mr Rogers failed to provide evidence establishing that Mr Thomson’s work led to the loss suffered, a necessary element when establishing a claim for damages for a breach of s 60.[12]
[12]Karpik v Carnival PLC [2023] FCA 1280, [773]-[775].
The only evidence filed on the cause of the damaged seal attributed the fault to “age and wear and tear” and noted there was also a failure in the bilge pump, which would have pumped the incoming water out of the boat had it been operational.
I am not convinced there was an error on these grounds and leave to appeal is refused on them.
Did the Tribunal make a different error of fact?
Mr Rogers argues that the Tribunal erred in finding that Mr Thomson had not given a verbal quote between $1,200.00 and $1,500.00. He says that the Tribunal overlooked Mr Thomson’s statement that he provided a verbal quote that was “a little low” and that his computer crashed. He also says that the suburb listed on the invoice is incorrect.
Once again, the learned Adjudicator’s findings were based on their consideration of the evidence and their preference of the evidence provided by Mr Thomson. The Tribunal relied on the June 2021 letter in which Mr Thomson stated that the verbal quote was for $4,500.00. That was a finding open to the learned Adjudicator on the material before them.
Mr Rogers has not pointed the Appeal Tribunal to material that compellingly contradicts the Tribunal’s findings. There is no basis to grant leave to appeal on this final ground.
Orders
1.Leave to appeal is refused.
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