Woztec Automotive v Freeman
[2014] QCATA 305
•3 November 2014
| CITATION: | Woztec Automotive v Freeman [2014] QCATA 305 |
| PARTIES: | Woztec Automotive (Applicant/Appellant) |
| v | |
| Darren Freeman (Respondent) |
| APPLICATION NUMBER: | APL315-14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe OAM |
| DELIVERED ON: | 3 November 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal granted. 2. Appeal is allowed. 3. The decision of 4 July 2014 in MCD255/13 is set aside. 4. Woztec Automotive shall pay Darren Freeman $2,902.97 within 28 days. |
| 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 Freeman had a 1989 Nissan EXA with a blown engine. In May 2012, he asked Woztec Automotive to fit a replacement engine. In July 2012, on the advice of Woztec, Mr Freeman bought an engine and delivered the car and the engine to Woztec.
There was some toing and froing between the parties between July and November 2012. The parties were in dispute about who was to secure parts and what work was needed. They were also in dispute about the cost of the work. Mr Freeman wanted the car back, finished. Woztec wanted to be paid for the work it had done.
In November 2012, Mr Freeman called at Woztec to collect the car. Woztec, through Mr Baxter, told Mr Freeman he could take the car on payment of outstanding costs. On 3 December 2012, Woztec filed an application for a minor debt. On 11 March 2013, the tribunal ordered Mr Freeman pay Woztec $497.03.
Mr Freeman did not pay Woztec although he says that he tendered that amount but it was refused.
In June 2013, Woztec had to leave its premises. It left Mr Freeman’s EXA behind. It seems that the car was sold for scrap. In any event, by the time of the hearing, the EXA was gone and Mr Freeman could not get it back.
Mr Freeman then filed an application to be reimbursed the amounts he spent on the car and the value of the lost EXA. The tribunal ordered Woztec pay Mr Freeman $5,661.20.
Woztec wants to appeal that decision. It says the learned Member failed to give Mr Baxter an opportunity to defend himself properly because she had other matters to attend to that day. It says the learned Member refused to hear all of Mr Baxter’s submissions. It says that the learned Member allowed a support person to speak on behalf of Mr Freeman. It says Mr Baxter was denied the opportunity to cross-examine Mr Freeman or his witnesses. It says Mr Freeman failed to provide evidence to support his claim. It says Mr Freeman was unjustly enriched by the learned Member’s decision. It says Mr Freeman failed to provide evidence as directed by the tribunal but the learned Member still ruled in his favour. It says the learned Member failed to consider the effect of a repairer’s lien.
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].
Both parties have filed fresh evidence with their submissions to the appeal tribunal. Relevantly, they have both filed pictures of the EXA showing its condition. Woztec has filed a transcript of a conversation between Mr Baxter, Mr Freeman and Mr Freeman’s partner that took place on 28 November 2012. It has also filed copies of documents from Gumtree, a recent photo of Mr Freeman, and copies of text messages sent by Betty Sills.
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 the parties 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.
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 Freeman did tell the learned Member that he could not produce photos because they were on a damaged hard drive[4]. In the context of this dispute, that is a poor excuse. The application was first heard on 3 February 2014. It was reopened on 24 April 2014 and adjourned on 16 May and 18 June 2014. At the conclusion of the hearing on 18 June 2014, the learned Member gave the parties leave to file any further material. I find it difficult to accept that the failure of a hard drive was a good reason for that length of time.
[4]Transcript page 1-10, lines 18 – 36.
Mr Baxter produced photos and valuations at the hearing[5]. Woztec does not explain why I should accept this fresh material now. I note, too, that the material from Gumtree was accessed after the learned Member’s decision. The transcript and the text messages merely show the level of animosity between the parties; they do not go to the issue before either the learned Member or me. That evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Member.
[5]Transcript page 1-30, line 19.
The learned Member did tell Mr Baxter that she had other matters[6]. In the context of the hearing as a whole, I do not consider that this one comment constituted a lack of procedural fairness. Mr Freeman’s initial submissions constitute fourteen pages of transcript. With some interruptions by Mr Freeman, Mr Baxter’s submissions constitute about twenty pages of transcript before the learned Member makes that comment. Even after the learned Member’s comment, Mr Baxter continued to address her. There is no basis for Mr Baxter’s submissions that he did not have an opportunity to defend himself properly or that the learned Member refused to hear all his submissions.
[6]Transcript page 1-35, lines 26 – 27.
Mr Freeman asked the learned Member if she wanted “Betty” to speak[7] and the learned Member said she did not[8]. Despite this, the learned Member did allow Ms Sills to speak for Mr Freeman. The learned Member was in error. Ms Sills did not have leave to represent Mr Freeman. She was not sworn in as a witness. She was not impartial.
[7]Transcript page 1-5, line 46.
[8]Transcript page 1-6, line 1.
However, I do not consider the learned Member’s failure to silence Ms Sills, or otherwise deal with her, amounted to a lack of procedural fairness. The transcript shows[9] that Ms Sills engaged Mr Baxter in conversation and he did not object. Mr Baxter’s partner, Ms Lewis, also engaged in what appears to be a lively debate[10]. The learned Member tried to call the parties to order[11] but a three-way debate continued for some time. Although the learned Member’s handling of the hearing was not ideal, I do not find it grounds for leave to appeal.
[9]E.g. page 1-28 line 34 to page 1-29 line 13.
[10]Transcript page 1-31.
[11]Transcript page 1-31, line 47.
The tribunal is not bound by the rules of evidence[12] and it may refuse to allow cross-examination[13]. My reference to the paragraphs of the transcript showing the debate between the parties also takes care of Woztec’s submission that Mr Baxter was not allowed to cross-examine Mr Freeman’s witnesses. He could, and did, question Ms Sills. Mr Freeman participated in that conversation. There was no request for cross-examination and the transcript shows that the learned Member had enough evidence to make a decision.
[12]QCAT Act s 28(3).
[13]Ibis s 95(2)(b).
Mr Woztec submits that Mr Freeman did not supply photographs of the condition of the car before it entered the workshop, a letter from Sergeant Gabriel, a letter from Nissan Indooroopilly or evidence that the engine supplied was not the correct engine. The issue for the learned Member was what compensation, if any, Mr Freeman should get because his car had been scrapped. Only the photos were relevant to that issue. Mr Freeman’s failure to provide the additional evidence does not necessarily mean that the learned Member’s decision was in error.
Woztec submits that the learned Member failed to consider the effects of a repairer’s lien. That, too, is true but Woztec’s reliance on a lien has a number of problems. Firstly, if the owner of the goods tenders payment, the person relying on the lien must hand over possession. There is evidence that Mr Freeman did tender payment[14]. Secondly, a lien depends upon possession. Once possession is lost, for example by leaving it at premises you no longer occupy, the right to the lien is also lost. Thirdly, a party exercising a lien over goods cannot charge for keeping possession of them.[15] Mr Freeman was entitled to recover his car. It is not enough to say that it was “abandoned” if Woztec is claiming a lien, particularly where there is no evidence that Woztec called on Mr Freeman to collect his car before Woztec vacated.
[14]Transcript page 1-11, lines 16 – 20.
[15]Bowenbrae Pty Ltd & Anor v Flying Fighters Maintenance and Restoration Pty Ltd [2009] QDC 91 at [18].
Woztec’s real complaint is that the learned Member overvalued the EXA.
The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[16] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[17]
[16]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125 – 126.
[17]Chambers v Jobling (1986) 7 NSWLR 1 at 10.
The learned Member had three pieces of evidence from Mr Freeman and two from Mr Baxter. She noted the parties’ dispute about the condition of the EXA. She explained why she preferred Mr Freeman’s valuations[18]. She took account of Mr Baxter’s submissions about the poor condition and chose the lowest valuation. The evidence can support the learned Member’s finding and I can find no compelling reason to come to a different view.
[18]Reasons for decision page 1-3, line 41 to page 1-4, line 3.
However, I have come to the conclusion that Mr Freeman was not also entitled to a refund of the costs he paid Woztec. The EXA could only have had a value of $3,400 – according to Mr Freeman’s documents – if it was in running condition. If Woztec had not performed work on the EXA then it is likely that Mr Baxter’s assessments would have been more realistic. If Mr Baxter had not performed the work, then the car could not have been worth $3,400. Mr Freeman’s loss would then have been the lower quotes – for $200 to $300 – plus the cost of repairs. Therefore, in my view, the learned Member erred in giving Mr Freeman double compensation; once for the car as repaired and then for the cost of repairs.
Leave to appeal should be granted and the appeal allowed. The decision of 4 July 2014 is set aside. Woztec Automotive should pay $3,400 less $497.03 as ordered in the previous dispute, giving a net figure of $2,902.97. Woztec Automotive shall pay Darren Freeman $2,902.97 within 28 days.
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