Smith & McFeeter v Heritage Tree Service Pty Ltd t/a Heritage Tree Care
[2014] QCATA 252
•18 August 2014
| CITATION: | Smith & McFeeter v Heritage Tree Service Pty Ltd t/a Heritage Tree Care [2014] QCATA 252 |
| PARTIES: | John Meint Smith, Gail McFeeter (Applicant/Appellant) |
| v | |
| Heritage Tree Service Pty Ltd t/as Heritage Tree Care (Respondent) |
| APPLICATION NUMBER: | APL202-14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 18 August 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549 |
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
Mr Rowan and Ms Newell are directors of Heritage Tree Service Pty Ltd (Heritage). They are also neighbours of Mr Smith and Ms McFeeter. In February 2013, Mr Smith wanted Heritage to remove storm damaged trees in their property. Heritage provided a written proposal for $12,980. Heritage did the work and rendered an invoice. Mr Smith did not pay.
On 2 October 2013, Heritage filed a claim for the unpaid invoice. On 24 January 2014, Mr Smith and Ms McFeeter filed a claim for damage done by Heritage when carrying out its work. The tribunal heard the two claims together. The tribunal ordered Mr Smith pay Heritage $8,434. Mr Smith and Ms McFeeter’s claim was dismissed.
Mr Smith and Ms McFeeter want to appeal that decision. They say the learned Adjudicator did not give sufficient time to the hearing of their claim. They say the learned Adjudicator failed to provide procedural fairness by accepting new evidence from Heritage at the start of the hearing and not giving Mr Smith and Ms McFeeter an opportunity to consider that material. They say the GPS data was inadmissible. They say the learned Adjudicator failed to require Mr Rowan to provide credible evidence to support his submissions to the learned Adjudicator. They say the learned Adjudicator “gave no credence to the reasonable doubt of neglect of duty of care” by Heritage. They say the learned Adjudicator failed to ask Mr Rowan whether his employee took photos of the alleged damage. They say the learned Adjudicator gave little attention to their photographic evidence. They say the learned Adjudicator failed to give weight to the urgency of after storm work. They say that there is public interest in this proceeding which requires consideration by the appeal tribunal.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] 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.[2]
[1]QCAT Act s 142(3)(a)(i).
[2]Pickering v McArthur [2005] QCA 294 at [3].
Mr Smith and Ms McFeeter have filed fresh evidence with their application for leave to appeal. At the hearing, Heritage produced GPS records of the location of its equipment to demonstrate that it did a particular number of hours work. Mr Smith and Ms McFeeter filed a summary of actual hours they say Heritage spent doing the work. They filed a copy of ASIC records to show that Mr Rowan was wrong in stating he had acquired the Heritage business five years ago. They have filed copies of photos taken in January 2014 and May 2014 to show trees that should have been removed, but were not removed. The photos also show a large mulch heap which, they say, Heritage should have removed under the terms of its quote.
The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Mr Smith and Ms McFeeter have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?[3]
[3]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.
The learned Adjudicator heard Mr Smith and Ms McFeeter give the evidence that is now provided in the summary of actual hours. The learned Adjudicator accepted that Heritage employees might not have been on site for as long as Mr Rowan claimed but the finding was not material to the learned Adjudicator’s decision. The summary will not have an important impact on the result of the case and it should not be admitted.
There are many ways to acquire a business. The fact that a particular company may be newly incorporated is not evidence that Mr Rowan acquired the business at the same time. Mr Rowan’s experience was not a critical finding in the learned Adjudicator’s decision. The ASIC material will not have an important impact on the result of the case and it should not be admitted.
The scope of works was always an important issue in this dispute. The trees and mulch heap existed prior to the hearing and Mr Smith and Ms McFeeter have not explained why they did not produce these photos at the hearing. The evidence should not be admitted. The appeal should be determined on the basis of the evidence before the learned Adjudicator.
The transcript does not support an allegation that the learned Adjudicator did not give Mr Smith and Ms McFeeter to put their claim for damages. The evidence about their claim starts at page 1-23. The learned Adjudicator put each of the claims to Mr Smith and Ms McFeeter and asked them for their evidence. At page 1-30 of the evidence, Mr Smith and Ms McFeeter refer the learned Adjudicator to evidence of a dispute between the parties that had no relevance to the matters the learned Adjudicator had to decide. The learned Adjudicator called the parties back to the issues before him at page 1-32. The parties took another diversion at page 1-39. The learned Adjudicator called them back to the issues at page 1-42. I am satisfied that the learned Adjudicator gave Mr Smith and Ms McFeeter an adequate opportunity to put their claim.
Heritage did produce fresh evidence at the start of the hearing. Mr Rowan filed an affidavit setting out his version of events. There were several printouts of GPS records for the vehicles Heritage used in the job. These printouts are large documents consisting of a time and date, address, a speed, zone, alert type and odometer reading. Mr Rowan helpfully highlighted the sections of the printouts that referred to this dispute. Even so, they are of limited assistance. Heritage also filed copies of emails between its office and Mr Smith’s insurer.
When Mr Smith received these documents, he said ‘Excuse me Member’[4]. The learned Adjudicator told Mr Smith that he would have his turn to speak. That opportunity came only moments later[5]. Mr Smith did not ask the learned Adjudicator for an adjournment. Instead, he started to tell the learned Adjudicator his version of events. The learned Adjudicator received the same volume of documents and he did not pause to consider them. Mr Smith could have asked for an adjournment. He did not. He cannot now claim the learned Adjudicator’s actions caused him disadvantage.
[4]Transcript page 1-5, line 10.
[5]Transcript page 1-5, line 17.
I have already indicated that the learned Adjudicator did not rely on the GPS evidence. It was admissible, in that Mr Rowan produced it from his vehicle records. It appears, however, that it was of little value. The learned Adjudicator’s decision to accept the evidence is not a ground for appeal.
Mr Smith and Ms McFeeter’s submissions show some confusion about who needs to prove what at a hearing. Heritage had to prove, and did prove, an agreement to do work, an invoice and a failure to pay. Mr Smith and Ms McFeeter had to prove that Heritage was negligent or breached its contract, that breach caused loss and the quantum of that loss. Because Mr Smith and Ms McFeeter had the onus of proof, Heritage did not have to produce witnesses or photographs that might have helped Mr Smith and Ms McFeeter prove their case. Mr Smith and Ms McFeeter could have applied for an order that Heritage produce documents, or they could have asked the tribunal to issue a notice for witnesses to attend. They did not do either of those things. The learned Adjudicator was not in error in failing to make Heritage produce evidence.
The learned Adjudicator did consider Heritage’s duty of care to Mr Smith and Ms McFeeter. In his reasons for decision, the learned Adjudicator considered each of their claims[6]. He did not discount that Heritage owed a duty of care to Mr Smith and Ms McFeeter, Instead he found that there was no evidence to support a breach of that duty of care.
[6]Transcript pages 1-48 to 1-49.
The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[7] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[8]
[7]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[8]Chambers v Jobling (1986) 7 NSWLR 1 at 10.
It is implicit in Mr Rowan’s evidence that he denied receiving any photos of damage from ‘Jared’[9]. I see no utility in the learned Adjudicator asking Mr Rowan a specific question about photos in the context of the evidence already before the tribunal.
[9]See, transcript pages 1-27, 1-30, 1-33, 1-34, 1-40 to 1-41.
The learned Adjudicator did look at the photographs. He commented that the photo of the shed did not support Mr Smith and Ms McFeeter’s claim[10]. The photograph of the fallen trees, the gate, house and fence add nothing to their claim. There is a pile of mulch but the claim relating to that was for Ms McFeeter’s own labour. The photographs did not assist, or impede, the learned Adjudicator’s decision.
[10]Transcript page 1-48, lines 25 – 26.
Mr Smith and Ms McFeeter say the learned Adjudicator failed to give weight to the urgency of attending to the storm work and yet, almost 18 months after the storm, they have not taken the remedial action they say was necessary. There is no basis for leave to appeal on this ground.
There is no public interest in this dispute that would justify leave to appeal. There is nothing in the transcript to persuade me that the learned Adjudicator should have taken a different view of the facts.
There is no reasonably arguable case that the learned Adjudicator was in error. Leave to appeal should be refused.
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