Traynor v Sci-Fleet Motors Pty Ltd
[2011] QCATA 328
•24 November 2011
| CITATION: | Traynor v Sci-Fleet Motors Pty Ltd [2011] QCATA 328 |
| PARTIES: | Mr Kevin Traynor t/as Traynor Constructions |
| v | |
| Sci-Fleet Motors Pty Ltd |
APPLICATION NUMBER: APL308 -11
| MATTER TYPE: | Appeals |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Richard Oliver, Senior Member Peta Stilgoe, Member |
DELIVERED ON: 24 November 2011
DELIVERED AT: Brisbane
ORDERS MADE: Leave to appeal refused.
| CATCHWORDS: | MINOR CIVIL DISPUTE – where truck developed rust – where repaired under warranty – whether further repairs required – where dispute about extent of further repairs – whether grounds for leave to appeal – where applicant sought to lead fresh evidence Queensland Civil and Administrative Tribunal Act 2009, ss 137, 138 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Chambers v Jobling (1986) 7 NSWLR 1 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Mr Oliver, Senior Member
In this matter the Appeal Tribunal consisted of Ms Stilgoe, QCAT Member and me. I have had the benefit of reading her reasons in draft. I agree with her reasons, and her conclusions, and the order she proposes.
Ms Stilgoe, Member
Mr Traynor bought a Hino truck from Sci-Fleet Motors Pty Ltd. The truck developed some rust early in its life so Sci-Fleet had the rust removed and the affected areas repainted. The rust reappeared. In addition, Mr Traynor was not happy with the quality or colour of the painting. He wanted Sci-Fleet to pay for rust removal and a total respray of the truck. Sci-Fleet conceded that some further work was needed to address the rust but denied that a complete respray was necessary. Mr Traynor filed an application in the tribunal seeking rectification of the truck, including that it be returned to the original Hino colours plus an extension of the warranty. The learned Adjudicator ordered that Mr Traynor return the truck to Sci-Fleet so that the company could attend to the rust on the rear of the chassis, the rear cross member, the top of the driver’s side window and the lower rear axle, with necessary respraying.
Mr Traynor has appealed the learned Adjudicator’s decision on these grounds:
a) The learned Adjudicator’s decision was influenced by documents produced at the hearing which, despite his request, had not been supplied to Mr Traynor prior to hearing.
b) The reports relied upon by the learned Adjudicator were produced by companies that have an ongoing relationship with Sci-Fleet and, therefore, their reports were not impartial.
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?
With his application for leave to appeal, Mr Traynor provided: a photo album full of photos of the truck; detailed submissions about a report from Pacific Claims; documents about paint colours and evidence of conversations that took place after the learned Adjudicator’s decision.
The appeal tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined[1]. Ordinarily, an applicant for leave to adduce such evidence must satisfy each of the following tests:
a) The evidence could not have been obtained with reasonable diligence for use at the trial;
b) The evidence, if allowed, would probably have an important impact on the result of the case (although it need not be demonstrated that it would be decisive); and
c) That the evidence is credible though it need not be incontrovertible.[2]
[1] Sections 137 and 138 QCAT Act.
[2] Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.
An application for leave to appeal is not, and should not be, an attempt to shore up the deficiencies of a party’s case at the initial hearing. Mr Traynor had filed a DVD of photos before the hearing. The learned Adjudicator asked Mr Traynor on a number of occasions whether he wanted to rely on the photos on the DVD and Mr Traynor said he did not. He cannot now ask the appeal tribunal to have regard to photos that were not put before the learned Adjudicator.
Similarly, Mr Traynor cannot now rely on conversations he has had with others in light of the learned Adjudicator’s findings. I propose to determine the application for leave to appeal solely on the basis of the documents that were before the learned Adjudicator at the hearing.
Mr Traynor complains that he was not given a copy of the report from Pacific Claims and that, if he had been given a copy beforehand, he would have required the report writer to be available at the hearing. It is clear from the transcript that Mr Traynor does not agree with the conclusions in the Pacific Claims report and that he clearly explained why he did not agree with the report.
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.[3]
[3]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.[4] As the High Court said in Fox v Percy:
In such circumstances, the appellate court is not relieved of its statutory function by the fact 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.[5]
[4] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[5] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
The learned Adjudicator’s decision did not depend upon resolving the conflict between Mr Traynor’s evidence and the report from Pacific Claims. Even though the learned Adjudicator read parts of the report into the transcript, it is clear that he formed his view based upon the photos tendered at the hearing, the direct evidence of Mr Traynor and Mr Anderson and a consideration of all written material before him.
The learned Adjudicator was in no doubt that Mr Traynor wanted the truck sandblasted back to bare metal, the rust treated and the truck fully repainted. The learned Adjudicator was not satisfied that Mr Traynor had established his case as he did not provide the tribunal with any independent evidence. If, as Mr Traynor asserts, the reports provided by Sci-Fleet were not independent, then the learned Adjudicator simply made a decision between two versions, either of which may have been influenced by personal preferences.
The learned Adjudicator’s findings can be supported by the evidence and I can find no compelling reason to form a contrary view.
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.
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