Smart State Vehicle Rental Pty Ltd v Tri Asset Protection Systems Pty Ltd

[2013] QCATA 16

CITATION: Smart State Vehicle Rental Pty Ltd v Tri Asset Protection Systems Pty Ltd [2013] QCATA 16

PARTIES:	Smart State Vehicle Rental Pty Ltd trading as Smart State Rentals (Applicants/Appellants)
v
Tri Asset Protection Systems Pty Ltd (Respondent)

APPLICATION NUMBER: APL223-12

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON: 30 January 2013

DELIVERED AT: Brisbane

ORDERS MADE: Leave to appeal refused.

CATCHWORDS:

MINOR DEBT CLAIM – where magistrate ordered rectification work at first instance – where rectification work not done – where access for rectification work not provided – where magistrate made money order – whether grounds for leave to appeal

PROCEDURE – whether failure to comply with rule in Browne v Dunn constituted failure to provide natural justice – whether change in orders at the second hearing constituted failure to provide natural justice

EVIDENCE – where new evidence – where new evidence of defect that arose after hearing – whether new evidence should be admitted on the application for leave to appeal

Queensland Civil and Administrative Tribunal Act 2009, s 28(3)(b)
Queensland Civil and Administrative Tribunal Rules 2009, rr 48, 49

Browne v Dunn (1893) 6 R 67, applied
Chambers v Jobling (1986) 7 NSWLR 1, cited
Commissioner of Taxation v Baffsky [2001] NSWCCA 332, cited
Fox v Percy (2003) 214 CLR 118, cited
PS Business Holdings v Duncan & Anor [2010] QCATA 19, cited

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

1. Tri Asset Protection Systems Pty Ltd (‘Tri Asset’) installed a Rhino Line flooring in the wash bays at Smart State Vehicle Rental Pty Ltd (‘Smart State’).  Smart State did not pay for the installation so Tri Asset filed a minor debt claim for $21,617.55.  Smart State opposed the application, saying that the work was defective, incomplete and needed to be totally redone.

2. On 23 April 2012, after hearing evidence from both parties, a Magistrate sitting as a member in the minor civil disputes jurisdiction of the Tribunal, ordered Tri Asset to rectify the flooring.  The learned Magistrate adjourned the hearing to a date to be fixed.

3. The dispute came back before the learned Magistrate on 19 June 2012.  Tri Asset had not rectified the flooring.  The learned Magistrate heard further evidence and then ordered Smart State pay Tri Asset $20,000 in full satisfaction of the claim and filing fees.

4. Smart State has filed an appeal and application for leave to appeal the learned Magistrate’s decision.

1. Because this is an appeal from a decision of the Tribunal in its minor civil dispute jurisdiction, leave is necessary.  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; 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.  Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?

1. Smart State says that the learned Magistrate gave inadequate reasons for his decision because it is not clear how he dealt with the extent, or causes, of the defective work.  Smart State also says that it was not given procedural fairness because Tri Asset did not observe the rule in Browne v Dunn[1]. It also says that it was not given the opportunity to provide further evidence on the cost of rectification, given that the learned Magistrate’s original decision was to require rectification.  Finally, Smart State says that there is new evidence of defects which, if known to the learned Magistrate at the time, would have produced a different result.

   [1] (1893) 6 R 67.

Inadequate reasons

1. Smart State complains that the learned Magistrate made no findings about the cause or extent of the defects.  It says that it cannot tell whether the evidence that other parties had contributed to the defects affected the learned Magistrate’s decision.  Smart State says that findings about the defective work are relevant in determining whether the entire works should be replaced.

2. In the Tribunal’s minor civil disputes jurisdiction, giving immediate oral decisions accords with the spirit and purpose of the QCAT Act. The Appeal Tribunal should be slow to criticise oral reasons for decision without acknowledging the circumstances in which they are given, or the pressure of the learned Magistrate’s caseload. In an analogous situation, Spigelman CJ remarked in Commissioner of Taxation v Baffsky[2] that it ‘is not appropriate to parse and analyse judgments given on an ex tempore basis by judges of the District Court, who have a considerable caseload.’[3]

   [2] [2001] NSWCCA 332.

   [3] Ibid [49].

3. The learned Magistrate’s reasons for decision canvass a number of difficulties he faced in making a decision.  This was the second time that the parties had appeared before him.  Tri Asset had not rectified the floor in compliance with the order of 23 April 2012.  Smart State did not provide access to allow an inspection and/or rectification until Tri Asset listed the dispute for directions.

4. Tri Asset’s evidence was that only 5% of the floor was affected and that could have been due to the intervention of third parties.  Smart State said that 80% of the floor was affected and it wanted the floor replaced.  The learned Magistrate noted that Mr Kinsey, for Smart State, would not be satisfied with anything less than a full replacement of the floor.  The learned Magistrate had no evidence of the cost of repair, even though, in a response filed in November 2011, Smart State indicated that it was obtaining quotes.

5. Ultimately, the learned Magistrate decided that the dispute needed to be finalised.  He found that at least two thirds of the work was in good repair.  He decided that any order should favour Tri Asset.  It is implicit in his reasons for decision that he accepted Tri Asset’s evidence that the defective work was limited to 5%.

6. It easy to look at the learned Magistrate’s decisions in hindsight and wish for reasoning that is more explicit.  I understand Smart State’s disappointment that the learned Magistrate did not make specific findings that may have pointed the way to future claims but I am not persuaded that the learned Magistrate’s reasons for decision are deficient to the extent that he fell into error.

Procedural fairness

1. The rule in Browne v Dunn is that if one party is going to assert a different version of events from the other, witnesses for the opposing party who are in a position to comment on that version should be given, by the cross-examiner, the opportunity to do so.  Smart State’s complaint is that Tri Asset did not put any contrary propositions to Mr Corby when he gave evidence in April 2012.

2. Tri Asset was not given an opportunity to inspect the flooring before it cross-examined Mr Corby.  It would have been difficult for it to put any contrary proposition to Mr Corby if it had not seen the floor.  Even if the learned Magistrate required compliance with the rule, there was no realistic possibility that Tri Asset could have put contrary propositions to Mr Corby.

3. The Tribunal is not bound by the rules of evidence or any practices or procedures applying to a court of record.[4]  Although the application of the rule in Browne v Dunn might be good practice, it is not universally applied and, indeed, should be applied with caution.[5]

   [4] QCAT Act, s 28(3)(b).

   [5]See Supreme and District Courts Benchbook, Direction 32.2.

4. I do not consider that the failure to apply the rule in this dispute amounted to a failure to give procedural fairness.

5. The essence of Smart State’s second complaint about procedural fairness is that it was taken by surprise; from the breach of an order that Tri Asset rectify the floor, the learned Magistrate proceeded to determine the claim for payment, for which there was no evidence.

6. Smart State says that the change in approach, when it had complied with the previous decision, was unfair.

7. That submission is disingenuous.  Smart State did not comply with the learned Magistrate’s order to provide access until Tri Asset applied to re-list the hearing.  Although Smart State says that it was prepared to have Tri Asset rectify the floor, ‘albeit unhappily,’ it did not allow Tri Asset access, despite two requests.  It should have been tolerably clear to the parties at the resumed hearing that rectification of the floor was no longer an option.

8. Smart State also complains that it had no opportunity to source quotes for the rectification.  That, too, is a disingenuous submission.  By failing to respond to two requests for access, Smart State must have formed the intention to deny Tri Asset the opportunity to rectify the floor.  The only other way to resolve the dispute was by the payment of money.  Smart State foreshadowed that it would be obtaining quotes.  It has not explained why it failed to do so before the resumed hearing.  I am not persuaded that the ‘surprise’ alleged by Smart State amounted to a lack of procedural fairness.

9. It is important to consider the Tribunal process in its minor debt claims jurisdiction.  A respondent to a minor debt claim cannot bring a counter application.[6]  If there are circumstances that suggest there might be a counterclaim, the presiding member may order that the circumstances be dealt with as a separate minor debt claim and give directions as are appropriate.[7]

   [6]        Queensland Civil and Administrative Tribunal Rules 2009, r 48(3) (‘QCAT Rules’).

   [7]        Ibid, r 49(1).

10. The combined effect of rr 48 and 49 of the QCAT Rules is that a counterclaim is no defence to a claim for a minor debt.  The debt to Tri Asset is properly payable and Smart State has a separate claim for damages which it can progress through separate proceedings.

1. It is not for the Appeal Tribunal to substitute its decision unless the learned Magistrate was demonstrably wrong in his interpretation of the facts.  An Appellate Tribunal may interfere if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.[8]  As the High Court said in Fox v Percy[9]:

In such circumstances, the appellate court is not relieved of its statutory functions by the fact that 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.[10]

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

[9] (2003) 214 CLR 118.

[10] Ibid 128 per Gleeson CJ, Gummow and Kirby JJ.

1. The learned Magistrate’s decision can be supported by the evidence before him.  I am not persuaded that the evidence was so compelling that the learned Magistrate should have come to a different decision.

The new evidence

1. Smart State says that on 10 July 2012, it discovered new defects in the floor that were not discoverable by reasonable diligence before the first hearing.

2. The test for when new evidence will be allowed on appeal is, as Smart State acknowledges, ‘when it could not, by reasonable diligence, have been obtained for the original hearing, is credible, and might have produced the opposite result.’[11]

   [11]        PS Business Holdings v Duncan & Anor [2010] QCATA 19 at [16].

3. Mr Kinsey’s new evidence is that he inspected the floor on 20 July 2012 and noticed a new defect.  He said that he inspected the bay on a number of occasions prior to the resumed hearing but that the new defect was not present until 10 July 2012.

4. Mr Kinsey’s new evidence is not evidence that should be allowed on appeal.  The test for new evidence presupposes that the defect existed at the time of the hearing and Smart State was simply unable to produce evidence of it at the hearing.  That is not the case here.  Smart State could not have provided the new evidence at the hearing because it simply did not exist.  The new evidence may give rise to a claim against Tri Asset but it does not justify giving leave to appeal.

1. There is no question of general importance that should be determined by the Appeal Tribunal; there is no reasonably arguable case that the learned Adjudicator 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.