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Scapehold Pty Ltd v Hughes QCATA 140
Scapehold Pty Ltd v Hughes  QCATA 140
Scapehold Pty Ltd
11 September 2015
Senior Member Brown
21 September 2015
MINOR CIVIL DISPUTE – defective motor vehicle – where evidence not given under oath or affirmation – whether party attending hearing by telephone disadvantaged – where change of name of respondent at hearing – whether findings of Adjudicator against the weight of evidence
Competition and Consumer Act 2010 (Cth), Schedule 2 s 54, s 259,
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 57, s 95, s 142
Cachia v Grech  NSWCA 232
Casey v Repatriation Commission (1995) 39 ALD 34
Cerednic v Freeman & Ors  QCATA 025
Fox v Percy (2003) 214 CLR 118
Glenwood Properties Pty Ltd v Delmoss Pty Ltd  2 Qd R 388
In Re W (an infant)  AC 682
Kuenstner & Anor v Ray White Murrumba Downs  QCATA 169
Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611
QUYD Pty Ltd v Marvass Pty Ltd  1 Qd R 41
Secretary of State for Education and Science v Tameside Metropolitan Borough Council  AC 1014
Secretary, Department of Social Security v Jordan & Jiang  155 ALR 236
Gerhard Fischer, Director of Scapehold Pty Ltd
REASONS FOR DECISION
What is this appeal about?
- Simon Hughes bought a Subaru WRX (‘the Subaru’) from Scapehold Pty Ltd trading as Gerhards Quality Cars (‘Gerhards’). The Subaru had a number of mechanical defects. Mr Hughes pursued a minor civil dispute claim in the Tribunal against Gerhards. An Adjudicator awarded Mr Hughes damages totalling $11,698.60. Gerhard appeals against the decision of the Adjudicator.
- The hearing was conducted on 17 March 2015. Mr Hughes attended in person. Mr Fischer, a director of Gerhards, attended the hearing by telephone from the Australian Capital Territory where the business operated.
- Gerhards had earlier sought an adjournment of the hearing. That application was refused and Gerhards was given leave on 11 March 2015 to attend the hearing by telephone.
- Gerhards did not object to giving evidence by telephone either following the decision of 11 March 2015 or before or during the hearing.
- It is apparent from a reading of the transcript that the Adjudicator was conscious of the need to ensure that Mr Fischer was able to hear and to be heard during the hearing.
- Early in the hearing, the Adjudicator invited Mr Fischer to use a landline rather than the mobile telephone he was using. Mr Fischer declined this invitation, advising the Adjudicator that the landline would be interrupted by the sound of incoming calls. Accordingly, for a period of time at least, Mr Fischer attended the hearing by mobile phone.
- The Adjudicator however identified that this was ultimately unsatisfactory and requested that Mr Fischer attend the hearing using a landline which he subsequently did.
- At no time during these two episodes did Mr Fischer advise the Adjudicator that he was having any difficulty attending the hearing by telephone.
- The only witnesses at the hearing were Mr Hughes and Mr Fischer.
- The Adjudicator did not require the parties to give their evidence under oath. The hearing was conducted in a manner involving the Adjudicator asking questions of the parties, and the parties were given the opportunity to give their evidence, ask questions of the other party and refer to relevant documents.
- In addition to the oral evidence of the parties, the Adjudicator considered the material filed in the Tribunal by the parties including quotes for repairs to the Subaru, letters from mechanical experts expressing views about the relevant issues and email and other communications between the parties and the ACT Office of Regulatory Services Fair Trading.
The Adjudicator’s findings
- The Adjudicator gave oral reasons for his decision at the conclusion of the hearing as is the general practice in the minor civil disputes jurisdiction of the Tribunal. The Adjudicator made a number of findings:
- a)That the Tribunal had jurisdiction to hear and determine the application by Mr Hughes;
- b)That the Australian Consumer Law (‘the ACL’) applied in respect of the claim by Mr Hughes;
- c)That there was a serious problem with the Subaru’s engine which required the engine to be rebuilt;
- d)That it was appropriate that the engine be rebuilt rather than simply replaced by a standard engine as the engine in the Subaru had been modified for performance purposes and had been sold to Mr Hughes on this basis;
- e)That the engine of the Subaru was not fit for the purpose for which it was supplied in breach of the guarantee as to acceptable quality pursuant to s 54 of the ACL;
- f)That Mr Hughes was not obliged to return the Subaru to Gerhards and had elected to remedy the defect in accordance with s 259(2)(i) of the ACL;
- g)That it was reasonable, in accordance with s 259(2)(i) of the ACL, for Mr Hughes to recover the cost of the engine rebuild on the basis that he was entitled to be put in the position in which he should have been if the contract had been performed by Gerhards;
- h)That the drive shaft was defective and was not durable in breach of s 54(2)(e) of the ACL;
- The Adjudicator gave judgement for Mr Hughes in the total amount of $11,698.60 comprising:
- Engine rebuild cost $10,200.00
- Drive shaft repair cost $ 1,039.00
- Towing fees $ 165.00
- Filing fee $ 294.60
What does Gerhards say?
- The grounds of appeal identified in the application for leave to appeal filed by Gerhards are:
- a)The evidence of the parties was not given under oath;
- b)Mr Hughes made unnecessary repairs to the Subaru resulting in a new engine which was not required;
- c)Even if a new engine was required, Mr Hughes could have ‘negotiated a trade price’ for the new engine;
- d)Gerhards had given Mr Hughes the opportunity to return the vehicle which offer was declined;
- e)Mr Fischer was unable to attend the hearing in person and being required to attend the hearing by telephone resulted in Mr Fischer finding it difficult to express his point and demonstrate his evidence and he was therefore disadvantaged in the presentation of his case.
- Gerhards written submissions in support of the application for leave to appeal are largely a re-statement of the evidence given before the Adjudicator. The submissions do not identify any error said to have been made by the Adjudicator.
- During the course of the hearing of the application for leave to appeal, Mr Fischer for Gerhards clarified the grounds of appeal upon which the applicant relies. Those grounds are:
- a)The Adjudicator erred in ordering at the commencement of the hearing that the name of the respondent be amended from ‘Gerhard’s Quality Cars’ to Scapehold Pty Ltd trading as Gerhard’s Quality cars”;
- b)The Adjudicator erred in not requiring the witnesses to give their evidence under oath;
- c)The Adjudicator erred in permitting the hearing to proceed with Mr Fischer giving evidence over the telephone as a result of which Mr Fischer was disadvantaged and thereby was not afforded procedural fairness or was otherwise denied natural justice;
- d)The Adjudicator’s findings of fact in relation to the defects in the Subaru were against the weight of the evidence.
What does Mr Hughes say?
- The written submissions by Mr Hughes are brief as were his oral submissions at the hearing of the application for leave to appeal. Essentially, he supports the findings of the Adjudicator.
- To appeal the decision of the Adjudicator, Gerhards must first obtain the leave of the Tribunal. Leave to appeal will only be granted in circumstances where:
- a)There is a reasonably arguable case of error in the primary decision;
- b)There is a reasonable prospect that the appellant will be granted substantive relief;
- c)Leave is necessary to correct a substantial injustice to the appellant as a result of error;
- d)There is a question of general importance upon which a decision of the appellate tribunal would be to the public advantage.
Ground 1 – The change of name of the respondent at the hearing
- At the commencement of the hearing, the Adjudicator correctly identified that the application had been brought naming a business as the respondent. After discussion between the parties, it was agreed by Mr Fischer that the holder of the relevant ABN as identified in the material relating to the sale of the Subaru to Mr Hughes was Scapehold Pty Ltd. Mr Fischer agreed that Scapehold Pty Ltd traded as Gerhard’s Quality Cars.
- Following this exchange, the respondent to the claim was amended by the Adjudicator to the present applicant.
- This course of action was entirely appropriate. Mr Fischer did not argue on the application for leave to appeal that Gerhards was in any way prejudiced by the amendment. Mr Fischer agreed during the hearing that the present applicant was the correctly named respondent. There was no error on the part of the Adjudicator.
Ground 2 - Evidence not given under oath
- Gerhards says that the Adjudicator erred in not requiring the parties to give their evidence under oath.
- The Tribunal may accept evidence under oath or otherwise. Failing to take evidence under oath does not necessarily compromise the integrity of the information given at Tribunal hearings. The relevance, if any, of the failure to have the parties give their evidence under oath or affirmation will depend upon the nature of the proceedings, and the presence of any factual disputes or issues involving the credit of parties who gave evidence.
- It was a matter for the Adjudicator to determine whether the evidence of the parties was given under oath or otherwise.
- In Secretary, Department of Social Security v Jordan, it was found that the Administrative Appeals Tribunal was entitled to have regard to evidence which was both taken under oath and not taken under oath in coming to its conclusions and that it was a question of the Tribunal weighing the evidence.
- In proceedings before a Tribunal the criterion for admissibility of material is relevance rather than the rules of evidence.
- It is apparent from the transcript that both parties were given the opportunity to give their evidence comprehensively. Both parties made reference to, and relied upon, written material filed in the Tribunal.
- It is apparent from his decision that the Adjudicator carefully considered and weighed the evidence before him before making his decision. He considered in detail the evidence of both Mr Hughes and Mr Fischer, weighing up their respective versions of events. He considered the totality of the material before the Tribunal making extensive reference to that material and what the parties had to say about the material.
- There is no demonstrated error on the part of the Adjudicator in relation to this ground.
Ground 3 – the requirement for Mr Fischer to give telephone evidence
- Gerhards says that it was disadvantaged by Mr Fischer being required to attend the hearing by telephone.
- It is appropriate to reflect upon the events leading up to the hearing.
- The parties were advised of the hearing date of 17 March 2015 by a Notice of Hearing posted to each of them on 17 February 2015.
- On 6 March 2015, Gerhards filed an application in the Tribunal seeking an adjournment of the hearing on the basis that Mr Fischer was required to travel to Queensland from the ACT, the business had experienced unexpected staff shortages, and it was therefore not a convenient time for Mr Fischer to attend the hearing. By a decision of the Tribunal on 11 March 2015, the application for an adjournment was refused. Gerhards was given leave to attend the hearing by telephone. The decision was consistent with the Tribunal dealing with matters in a manner which is accessible, fair, just, economical, informal and quick.
- On 16 March 2015, Gerhards emailed 17 pages of additional material to the Tribunal which was before the Adjudicator at the hearing.
- The hearing commenced at 2.19pm on 17 March 2015. At no time during the hearing did Mr Fischer raise with the Adjudicator any concerns at the manner in which the hearing was being conducted. Mr Fischer did not seek an adjournment of the matter or indicate to the Adjudicator that he was unable to effectively present his case by telephone link.
- Shortly after the hearing commenced, the Adjudicator indicated to Mr Fischer that there were some issues with the clarity of the telephone connection. The Adjudicator asked Mr Fischer whether there was a landline that he could use. Mr Fischer indicated that this would be problematic.
- Subsequent to this, the Adjudicator advised Mr Fischer that it would be necessary for Mr Fischer to use a landline as the clarity of the phone connection was not adequate. Mr Fischer thereafter attended the hearing via a telephone landline.
- The transcript reveals that the Adjudicator was careful to ensure that, during the hearing, each party was given the opportunity to present their arguments and refer to relevant material. This included material which Mr Fischer relied upon which Mr Hughes asserted he had never received. The Adjudicator was careful to ensure that Mr Hughes was given the opportunity to consider the material during the course of the hearing.
- There is no evidence that Gerhards was disadvantaged as a result of Mr Fischer attending the hearing by telephone. There is no demonstrated error on the part of the Adjudicator in conducting the hearing with Mr Fischer attending and giving his evidence by telephone.
Ground 4 – findings against the evidence
- Whilst not expressed in the Application for Leave to Appeal or the grounds of appeal in this manner, during the course of oral argument, Mr Fischer agreed that his final ground of appeal was that the Adjudicator had preferred the evidence presented by Mr Hughes. Mr Fischer said that:
- a)The Adjudicator should not have accepted the evidence of Scorpion All Wheel Drive as it was Mr Fischer’s view that Scorpion’s evidence was implausible;
- b)the Adjudicator should not have accepted the evidence of Mr Hughes regarding the failure of the drive shaft and should have taken into consideration that the drive shaft had only failed after Scorpion had worked on the Subaru;
- c)the Adjudicator should have preferred the evidence of Mr Fischer in relation to the cost of the repair works to the Subaru.
- The matters articulated by Mr Fischer all relate to findings of fact. It is not an error giving rise to a ground of appeal to prefer one version of the facts to another, or to give less weight to one party’s case than he or she thinks it deserves. Findings of fact will not be disturbed if they have rational support in the evidence, even if another reasonable view is available. Where reasonable minds may differ, a decision is not erroneous simply because one conclusion has been preferred to another possible view.
- It was open to the Adjudicator to make the findings he did on the evidence before him. The Adjudicator accepted the evidence presented by and on behalf of Mr Hughes that the Subaru’s engine was problematic from the time he took delivery of the vehicle.
- It was open to the Adjudicator to accept the evidence presented by Mr Hughes, including the evidence of Scorpion, that the engine of the Subaru was defective and not fit for the purpose.
- Mr Fischer led no evidence at the hearing that the cause of the problem with the drive shaft was in any way associated with the engine works performed by Scorpion.
- It was open to the Adjudicator to make the finding on the evidence that the drive shaft was defective and not durable.
- There was no error on the part of the Adjudicator.
- Gerhards has been unable to establish any error on the part of the Adjudicator. There is no question of general importance in relation to which a decision of the Appeal Tribunal would be to the public advantage. The application for leave to appeal is dismissed.
- The application for leave to appeal is dismissed.
 Transcript of proceedings, p 1-5, line 17
 Transcript of proceedings, p 1-22, line 5.
 Competition and Consumer Act 2010 (Cth)– Schedule 2.
 QCAT Act s 142(3)(a)(i).
 QUYD Pty Ltd v Marvass Pty Ltd  1 Qd R 41.
 Cachia v Grech  NSWCA 232.
 Op cit 5.
 Glenwood Properties Pty Ltd v Delmoss Pty Ltd  2 Qd R 388.
 QCAT Act ss 57 and 95.
 Secretary, Department of Social Security v Jordan & Jiang  155 ALR 236, 245.
 Cerednic v Freeman & Ors  QCATA 025.
 QCAT Act ss 57 and 95.
 Op cit 9.
 Casey v Repatriation Commission (1995) 39 ALD 34 at .
 Transcript p 5.
 Transcript p 22.
 Kuenstner & Anor v Ray White Murrumba Downs  QCATA 169.
 Fox v Percy (2003) 214 CLR 118 at 125 – 126.
 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at ; In Re W (an infant)  AC 682 at ; Secretary of State for Education and Science v Tameside Metropolitan Borough Council  AC 1014 at .
- Published Case Name:
Scapehold Pty Ltd v Hughes
- Shortened Case Name:
Scapehold Pty Ltd v Hughes
 QCATA 140
Senior Member Brown
21 Sep 2015