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Hall v Harvey's Towing Services[2016] QCATA 77

Hall v Harvey's Towing Services[2016] QCATA 77

CITATION:

Hall v Harvey’s Towing Services [2016] QCATA 77

PARTIES:

Anthony Bruce Hall

(Applicant/Appellant)

v

Harvey’s Towing Services

(Respondent)

APPLICATION NUMBER:

APL008 -16

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane 

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

20 May 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Leave to appeal granted.
  2. Appeal allowed.
  3. The decision of 9 December 2015 is set aside.
  4. The claim filed 20 November 2015 is returned to the tribunal, differently constituted, for rehearing.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – CONSUMER CLAIM – where truck towed to yard – where truck had broken windscreen after collection by owner – where tribunal did not take evidence from owner – where tribunal allowed case to be run by person with no apparent entitlement to appear – where tribunal took notice of hearsay evidence – whether grounds for leave to appeal

Dearman v Dearman (1908) 7 CLR 549

Fox v Percy (2003) 214 CLR 118

Pickering v McArthur [2005] QCA 294

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

  1. [1]
    After an accident on the Gateway Motorway on 31 July 2015, at the request of the Queensland Police Service, Harvey’s Towing Services took possession of an Izuzu truck owned by Gloria Hall. On 24 September, 2015, Ms Hall collected the truck. She noticed a crack in the windscreen that did not exist on 31 July 2015. Ms Hall’s husband, Barry Hall, filed a claim for the cost of a replacement windscreen. The Tribunal dismissed his claim.
  2. [2]
    Mr Hall wants to appeal that decision. 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]
  3. [3]
    Mr Hall says that the Tribunal ignored his evidence and wrongly relied on hearsay evidence.
  1. [4]
    The Appeal Tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[3]  An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[4] 
  1. [5]
    There are some troubling aspects to the way in which the Tribunal handled this dispute. It identified early in the hearing[5] that Ms Hall, as owner of the truck, was a proper applicant. It did not identify why Mr Hall should have been a party. The Tribunal allowed Mr Hall to speak. It identified Ms Hall as a witness but did not ask her to give evidence. In a case where the dispute revolves around the credibility of the witnesses, the Tribunal’s failure to ask Ms Hall to give evidence is mystifying.
  1. [6]
    The Tribunal received hearsay evidence from “Tony” that the windscreen was not cracked when the truck left Harvey’s yard.[6] Although the Tribunal stated that it did not rely on that evidence,[7] citing that same evidence, the tribunal found Mr Hall’s evidence inconclusive. It is apparent the Tribunal did rely on hearsay evidence to some extent in circumstances where the evidence potentially had an important impact on the result of the case and it could not be tested by cross-examination.
  1. [7]
    I am satisfied that the Tribunal did not provide the parties with procedural fairness in the way it received, and dealt with, the evidence. Leave to appeal should be granted.
  1. [8]
    I am tempted to dismiss the appeal. As I mentioned, Mr Hall did not explain why he is entitled to the cost of the windscreen. The truck sat in Harvey’s yard for longer than is usual. As at December 2015, over two months after the Halls collected the truck, the windscreen hadn’t been replaced. However, because the Tribunal erred in law, the appeal should be allowed and the matter should be returned to the Tribunal for rehearing.
  1. [9]
    Both parties are now on notice about the deficiencies in their cases. They should both have all necessary witnesses attend the hearing. Mr Hall should explain why he should be a party and why, if it has not occurred, the Tribunal should give damages for a repair that is now approaching twelve months old.

Footnotes

[1]   QCAT Act, s 142(3)(a)(i).

[2] Pickering v McArthur [2005] QCA 294 at [3].

[3] Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.

[4] Chambers v Jobling (1986) 7 NSWLR 1 at 10.

[5]  Transcript page 1-5, lines 30 – 31.

[6]  Transcript page 1-18, lines 16 – 20.

[7]  Transcript page 1-24, lines 8 – 10.

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Editorial Notes

  • Published Case Name:

    Hall v Harvey's Towing Services

  • Shortened Case Name:

    Hall v Harvey's Towing Services

  • MNC:

    [2016] QCATA 77

  • Court:

    QCATA

  • Judge(s):

    Senior Member Stilgoe OAM

  • Date:

    20 May 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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