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Lenny Johnston Bulk Haulage Pty Ltd v Lakeside Diesel Services QCATA 124
Lenny Johnston Bulk Haulage Pty Ltd v Lakeside Diesel Services  QCATA 124
Lenny Johnston Bulk Haulage Pty Ltd
Ronald Bunce t/as Lakeside Diesel Services
On the papers
Senior Member Stilgoe OAM
25 August 2015
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – MINOR DEBT – where mechanical work on truck – where work redone 17 months later – where tribunal ordered payment for work redone – where appellant claimed illness prevented him from properly putting his case – whether tribunal should have been aware of appellant’s illness – whether tribunal failed to provide procedural fairness – where claim against person – where appellant claims proper respondent was a company – whether grounds for leave to appeal
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Pickering v McArthur  QCA 294
Clarke v Japan Machines (Australia) Pty Ltd  1 Qd R 404
Chambers v Jobling (1986) 7 NSWLR 1
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
- Lenny Johnston Bulk Haulage Pty Ltd owns an International 2670. In May 2013, Leonard Johnston, principal of Lenny Johnston Bulk Haulage, took the truck to his long-time friend and associate Ronald Bunce. He told Mr Bunce that the tyres were wearing oval and the kingpins needed “doing”. Mr Bunce “did” the kingpins and some other work, charging $2,460.70, which Lenny Johnston Bulk Haulage paid.
- The truck was back with Mr Bunce in September 2014. Once again, there was a problem with the kingpins. Mr Bunce overhauled the kingpins again, this time fitting new bushes. He sent Lenny Johnston Bulk Haulage an invoice for $2,211, which the company did not pay. Mr Bunce filed a claim in the tribunal. The tribunal ordered Lenny Johnston Bulk Haulage pay Mr Bunce the second invoice plus costs.
- Lenny Johnston Bulk Haulage wants to appeal that decision. Mr Johnston says that he was ill on the day of the hearing, and the tribunal failed to provide procedural fairness by adjourning the hearing to another day. He says that the tribunal failed to consider whether the work on the kingpins in September 2014 was warranty work. He says that the tribunal erred in making an order against him individually, when the claim should have been against the company only.
- Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. 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.
Did the tribunal fail to provide procedural fairness?
- Mr Johnston submits that he attended the hearing with an antibiotic drip feed in his right arm. He submits the bottle was obvious, he attempted to tell the tribunal that he was not well enough to proceed, but the tribunal elected to proceed. He submits that he had two major heart attacks around December 2014 (the hearing was in March 2015). He submits that he suffers from a hearing loss and had a stroke in 1988.
- The only evidence provided about Mr Johnston’s medical condition is a letter from the Department of Transport and Main Roads dated 21 January 2015. That letter records that Mr Johnston has been diagnosed with severe congestive cardiac failure which required the implantation of an implantable cardiac defibrillator. The letter is notice of suspension of Mr Johnston’s driver’s licence because the Department formed the view that his medical condition affected Mr Johnston’s ability to drive safely.
- That letter does not speak to Mr Johnston’s ability to understand, and participate in, a hearing in March 2015. It does not assist me in deciding whether the tribunal failed to provide procedural fairness at the hearing.
- In his submissions on appeal, Mr Bunce states that he did not see the bottle Mr Johnston refers to in his submissions. He says that he was not aware that Mr Johnston was unwell.
- The transcript does not support Mr Johnston’s submission that he tried to tell the tribunal he was not well enough to proceed. The tribunal heard from Mr Bunce and then asked Mr Johnston to state his case. Mr Johnston told his story without any apparent difficulty. He did not ask for an adjournment.
- I have listened to a recording of the hearing. That does not support Mr Johnston’s submission that he was disadvantaged in the presentation of his case. During the recording, I heard a lady’s voice, prompting Mr Johnston to provide material to the tribunal. The transcript records, at the end of the hearing, a question by a lady identified as Ms Johnston. It is apparent that Mr Johnston had assistance at the tribunal. I am not persuaded that the tribunal failed to provide Mr Johnston with procedural fairness.
Did the tribunal fail to consider whether the work on the kingpins in September 2014 was warranty work?
- It is true that the tribunal did not directly refer to the issue of a warranty. However, it is apparent from the reasons for decision that the tribunal did not accept Mr Johnston’s submissions on this point. The tribunal noted that there was a period of 17 months between the first invoice and the second invoice, The tribunal noted that the kingpins should have lasted for about five years with regular maintenance but it accepted Mr Bunce’s evidence that, when he worked on them the second time, the kingpins were dry, indicating a lack of maintenance.
- The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions. An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case. The evidence before the tribunal can support its conclusions and I can find no compelling reason to come to a different view.
Did the tribunal wrongly make an order against Mr Johnston personally?
- Mr Bunce issued invoices to “Lenny Johnston Bulk Haulage”. He filed his claim against “Lenny Johnston Bulk Haulage” (not Lenny Johnston Bulk Haulage Pty Ltd) and Mr Johnston personally. The tribunal made an order against “the respondent”.
- It is not unusual for parties in the minor civil disputes jurisdiction to confuse the identity of parties, particularly in cases where the parties have dealt with each other informally. There is a business names search on the tribunal file of the name Lenny Johnston Bulk Haulage, which shows the holder is Mr Johnston, not Lenny Johnston Bulk Haulage Pty Ltd. The only reference to Lenny Johnston Bulk Haulage Pty Ltd is on cheques drawn to pay Mr Bunce’s invoices.
- The tribunal was entitled to find that the proper respondent was Mr Johnston trading as Lenny Johnston Bulk Haulage. There is no error.
- There is no reasonably arguable case that the tribunal was in error. Leave to appeal should be refused.
 QCAT Act s 142(3)(a)(i).
 Pickering v McArthur  QCA 294 at .
 Transcript page 1-5, lines 9 – 11.
 Transcript page 1-12, line 43.
 Transcript page 1-11, line 46 to page 1-12, line 4.
 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
 Chambers v Jobling (1986) 7 NSWLR 1 at 10.
- Published Case Name:
Lenny Johnston Bulk Haulage Pty Ltd v Lakeside Diesel Services
- Shortened Case Name:
Lenny Johnston Bulk Haulage Pty Ltd v Lakeside Diesel Services
 QCATA 124
Senior Member Stilgoe
25 Aug 2015