Walsh v Atherton Automotive Pty Ltd

[2019] QCATA 8

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Walsh v Atherton Automotive Pty Ltd [2019] QCATA 8

PARTIES:

BENJAMIN HAMILTON WALSH

(applicant)

v

ATHERTON AUTOMOTIVE PTY LTD

(respondent)

APPLICATION NO/S:

ORIGINATING APPLICATION NO:

APL216-17

MCDO19/17 (Townsville)

MATTER TYPE:

Appeals

DELIVERED ON:

21 January 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Holzberger

ORDERS:

1. Leave to appeal is refused

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL

LIES – whether the stated grounds of appeal are proper grounds – whether the Tribunal’s findings are findings of fact or mixed law and fact – whether leave should be granted

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 123, 142

Bakker & Kramer v Richards Projects Pty Ltd [2014] QCATA 99

REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

APPEARANCES:

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

1. Atherton Automotive Pty Ltd (Atherton Automotive) has applied for leave to appeal and appeal the decision of the Tribunal to order it to pay the sum of $3,069.87 inclusive of

   $112.50 in costs to Benjamin Hamilton Walsh (Mr Walsh).

2. Atherton Automotive’s grounds for appeal are set out in a document titled ‘Grounds for Appeal’ filed in the Tribunal on 14 September 2017. They are:

   a)The decision purports to give judgment against Atherton Automotive, Rob Cahill Automotive Pty Ltd and Robert Cahill rather than Atherton Automotive Pty Ltd alone;

b)Failure to provide written reasons for the decision, despite a request for reasons; and

c)The Tribunal’s findings in relation to the existence of a warranty involved a mistake of law and fact.

1. The first two of these are not proper grounds of appeal.

2. In its oral decision delivered on 15 June 2017, the Tribunal clearly, and correctly in my view, identified Atherton Automotive as the only one of the three named respondents against whom judgement was to be entered1 and that is reflected in the written memorandum of decision.

3. Failure to deliver written reasons may be a breach of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) but that does not in itself provide a ground for appeal. The timing or nature of Atherton Automotive’s request is not contained in the material before me, but the grounds of appeal document acknowledges receipt of an ‘audio CD’ which would discharge the Tribunal’s obligation to provide written reasons in any event.2

4. Atherton Automotive asserts that in implying a warranty presumed to be the statutory warranty under Australian Consumer Law, the Tribunal made errors of mixed law and fact.

5. Rather than implying a statutory warranty, the Tribunal has found that a contractual warranty existed.

6. Mr Walsh’s evidence is that Atherton Automotive, through Mr Cahill, gave a verbal 12 month warranty on the job.3 Mr Cahill denies this. The Tribunal favoured Mr Walsh’s version of events and made a finding to that effect.4 That finding was open to the Tribunal on the evidence before it.

7. Clearly Atherton Automotive disagrees with that finding, but this ground is based on a misunderstanding of the Tribunal’s decision. It does not involve a question of law or a question of mixed law and fact.

1. Transcript p 38, lines 20-27.

2. QCAT Act s 123.

3. Transcript p 14 lines 7-45; p 15 lines 1-10.

4. Transcript p 39 lines 24-25.

1. An appeal on a question of fact or mixed law and fact requires leave of the Appeal Tribunal.5

2. Findings of fact by a Tribunal generally will not be overturned on appeal unless the Appeal Tribunal is satisfied that there are compelling inferences to the contrary which can be drawn from the evidence.6 That is not the case here. Leave should not be granted simply to allow a party a rehearing of the facts after remedying deficiencies in their evidence or the way their case was presented.

3. Leave to appeal is refused.

1. QCAT Act s 142.

2. Bakker & Kramer v Richards Projects Pty Ltd [2014] QCATA 99.