Pershouse v Kydren Holdings Pty Ltd
[2022] QCA 179
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- Pershouse v Kydren Holdings Pty Ltd[2022] QCA 179
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Pershouse v Kydren Holdings Pty Ltd[2022] QCA 179
Pershouse v Kydren Holdings Pty Ltd[2022] QCA 179
[2022] QCA 179
COURT OF APPEAL
MORRISON JA
DALTON JA
JACKSON J
Appeal No 5552 of 2022
QCATA No 193 of 2019
PETER PERSHOUSE Applicant
v
KYDREN HOLDINGS PTY LTD Respondent
ACN 605 453 389
BRISBANE
MONDAY, 19 SEPTEMBER 2022
JUDGMENT
JACKSON J: This is an application for leave to appeal from a decision of the appellate tribunal of the Queensland Civil and Administrative Tribunal refusing the applicant leave to appeal to the appellate tribunal from the decision of the tribunal at first instance.
On 5 September 2016, the underlying proceeding was brought by the applicant filing an application for determination of a minor civil dispute, being a consumer dispute.[1] The principal subject of the dispute was whether the applicant was indebted to the respondent for work done and materials supplied as an automotive mechanic.
The relief applied for was an order that an invoice by the respondent to the applicant dated 12 February 2016 for $2,541 was not due and payable,[2] an order for the return of the applicant’s car, over which a lien was asserted by the respondent, and orders that the respondent pay damages and costs.
On 16 May 2019, the proceeding was heard by the Magistrate at Bundaberg in his capacity as a member of the tribunal. The evidence reproduced for this application included the application with its 11 page statement of reasons why the applicant was seeking orders from the tribunal, the applicant’s affidavit and 18 attachments that were before the tribunal, and the transcript of the hearing.
The hearing took approximately 14 minutes. The tribunal found that the vehicle was given to the respondent. It worked on the motor that was originally in the vehicle and a replacement motor purchased by the applicant as a reconditioned motor and put it in the vehicle. There was more work done on the second motor. The tribunal found that the respondent was entitled to send the invoice and was entitled to payment of that bill. The tribunal found that the sum of $2,541 was due and owing on that invoice, and the applicant’s claim for relief from payment of the invoice for that amount was dismissed.[3]
On 22 July 2019, the applicant applied to the appellate tribunal for leave to appeal the decision of the tribunal below.[4] The application for leave included two pages of summary of the application, the facts, the law and the proposed grounds of appeal, and the material before the tribunal below.
On 13 April 2022, the appeal tribunal decided to refuse leave to appeal. A decision was made on the papers by a judicial member.[5] The appeal tribunal gave a seven page written decision refusing leave to appeal.[6] The appeal tribunal concluded that the crucial issue in the case was what the applicant instructed the respondent to do. That involved a conflict of evidence, and the outcome in the tribunal demonstrated that the member preferred the evidence of the respondent that it had instructions for all the work done, notwithstanding that the reasons given by the tribunal could and should have been better expressed.
The appeal tribunal concluded that there was no good reason shown to interfere with that finding by the tribunal below. The appeal tribunal continued that it followed that the test for granting leave to appeal to the appeal tribunal had not been met, and leave was refused. Because the matter was a minor civil dispute, leave to appeal to the appeal tribunal was required. The test applied by the appeal tribunal was that leave would only be granted where there was a reasonable argument that the decision was attended by error and an appeal was necessary to correct a substantial injustice caused by that error, or where the appeal raised the question of general importance upon which further argument, and a decision of the appeal tribunal, would be to public advantage.[7] The appeal tribunal also observed that it would not usually disturb findings of fact on appeal if the evidence was capable of supporting the finding, and it was not contrary to compelling inferences.[8]
The appeal tribunal’s reasons for decision are detailed and logical. The judicial member identified central issues as being whether the respondent was asked to do all the work done, as to which there was a conflict of evidence, and whether the respondent should have tested the replacement engine more thoroughly before it was installed, as to which there was also a conflict of evidence.
The judicial member identified that the tribunal below resolved the conflict by accepting the evidence of the respondent.[9] Having observed that the reasons of the member could, and should, have been better,[10] the judicial member found that it was clear enough that the tribunal below resolved the crucial factual issue, whether or not the respondent was instructed by the appellant to install the replacement engine, in favour of the respondent. The judicial member held that the decision was plausible and no good reason had been shown to interfere with it.[11]
From that point, the judicial member concluded that the decision of the tribunal below followed inevitably and that, notwithstanding the inadequate reasons, a rehearing was neither necessary nor appropriate.[12] As to the issue that the respondent should have conducted tests on the engine that could be undertaken when it was not working, the judicial member found that the applicant’s case lacked evidentiary support.[13]
On 11 May 2022, the applicant filed an application for leave to appeal to this Court from the appellate tribunal’s decision.[14] Such an appeal may be made only on a question of law,[15] and only if leave to appeal to this Court is obtained.[16] The applicant’s reasons to justify the grant of leave to appeal to this Court is set out in 11 numbered paragraphs contained in the application for leave to appeal to this Court. Some of the proposed grounds do not require any comment as being obviously untenable. Others show misconceptions on the part of the applicant as to the applicable law.
For example, the applicant attacked the judicial member’s finding that the decision of the member below was plausible on the footing that what was required was compelling proof or proof beyond reasonable doubt. The applicant also contended that it is self-evident common knowledge that does not require expert evidence that there are numerous gaskets and seals where there are small amounts of brake, clutch and power steering fluid or engine oil, which tend to leak over time without necessarily causing failure of parts on the motor, and that motor parts are designed in a way and located in places that if oil does leak, it will not necessarily interfere with the operation of the parts or cause their failure. Third, the applicant contended that not having the necessary equipment to run the replacement engine on a stand meant that the respondent’s services were not fit for purpose.
None of these points would arguably give rise to an appeal on a question of law only. In any event, none of them is reasonably arguable, in my view.
The applicant’s central contention in the proposed grounds in support of leave to appeal is that the judicial member ought to have referred the matter back to the tribunal below for further reasons because the member failed to give proper reasons.
A failure to give adequate reasons in a judicial proceeding where there is a right of appeal from the decision is usually an error of law.[17] However, the application for leave to appeal to the appeal tribunal sought an order that the decision of the tribunal below be set aside and substituted with a declaration that “the respondent had not met his burden under the consumer law to authorise a lien” and order some damages. It did not seek an order that the proceeding be remitted to the tribunal below for further reasons, and there was no consideration as to whether there was power to make such an order of remitter.
It is a jurisdictional requirement that the proposed appeal to this Court would be on a question of law only. As well, this Court’s discretion to grant leave is to be exercised in accordance with the orthodox principle, namely, where it is shown that it ought to be granted as it is necessary to correct a substantial injustice and there is a reasonable argument that there is an error of law to be corrected.[18]
With the exception of the ground of appeal as to the adequacy of the tribunal member’s reasons, none of the grounds advanced by the applicant as justifying a grant of leave would give rise to an appeal to this Court on a question of law only. As the summary of the judicial member’s reasons already given shows, the fundamental dispute before the tribunal and on the application for leave to appeal to the appeal tribunal, was one of fact. As well, the applicant had the right to apply for written reasons of the tribunal below but did not do so.[19]
But even if the applicant were able to distil or reduce his many complaints to an identifiable question of law on which leave to appeal might be granted for an appeal on a question of law only, it is not established that a grant of leave to appeal to this Court is necessary to correct a substantial injustice or there is a substantial argument that there is an error of law to be corrected that would affect the final result.
It may be added that both the statutory requirement for leave to appeal from a refusal of leave to appeal to the appellate tribunal to this Court, and the statutory requirement for leave to appeal to the appeal tribunal from the tribunal below, are deliberate legislative limits that apply to any appeal from the decision of a small claim, that is, a minor civil dispute, by QCAT. They reflect a clear legislative intention that the finality of a decision of the tribunal at first instance should be favoured at the expense of full rights of appeal by way of rehearing de novo or by way of rehearing on the evidence below that apply in other legislative contexts. That is because of the real risk of oppression and unjustifiable expense in the pursuit of appellate proceedings where the decision at first instance concerns only a small amount of money (in this case, approximately $2,500 as the central amount) and that decision is intended to be resolved by an informal proceeding[20] that is not required to be conducted in accordance with the laws of evidence,[21] and is to be conducted with a view to dealing with matters in a way that is economical and quick.[22]
For those reasons, in my view, the application for leave to appeal should be dismissed.
DALTON JA: I agree.
MORRISON JA: I also agree. The order of the Court is that the application for leave to appeal is dismissed. Thank you, Mr Pershouse and Mr Benko. Adjourn the Court.
Footnotes
[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 12.
[2] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 13(2)(a)(ii).
[3] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 13(1).
[4] Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 26, 142(1) and 142(3)(a)(i).
[5] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32(2).
[6] Pershouse v Kydren Holdings Pty Ltd [2022] QCATA 42
[7] Pershouse v Kydren Holdings Pty Ltd [2022] QCATA 42 [2]; Crime and Corruption Commission v Lee [2019] QCTA 38 [12]; Campbell v Queensland Building and Construction Commission [2021] QCATA 34 [17].
[8] Pershouse v Kydren Holdings Pty Ltd [2022] QCATA 42 [2]; Craig v Mark Kelada Auto Sellers [2016] QCATA 48 [13].
[9] Pershouse v Kydren Holdings Pty Ltd [2022] QCATA 42 [12].
[10] Pershouse v Kydren Holdings Pty Ltd [2022] QCATA 42 [16].
[11] Pershouse v Kydren Holdings Pty Ltd [2022] QCATA 42 [17].
[12] Pershouse v Kydren Holdings Pty Ltd [2022] QCATA 42 [18].
[13] Pershouse v Kydren Holdings Pty Ltd [2022] QCATA 42 [19].
[14] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 150(1).
[15] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 150(3)(a).
[16] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 150(3)(b).
[17] Pettitt v Dunkley [1971] 1 WLR 376, 381-382, 385, 388. Compare Elwick v Freeman [2018] VSC 234, [26]-[51].
[18] Pivovarova v Michelsen (2019) 2 QR 508 [38].
[19] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 122.
[20] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28(3)(d).
[21] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28(3)(b).
[22] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3(b).