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Ryan Cost Consultant Pty Ltd v Hamblin QCATA 99
Ryan Cost Consultant Pty Ltd v Hamblin & Anor  QCATA 99
Ryan Cost Consultant Pty Ltd
Robert Bartley of Tarampa Motors
On the papers
Senior Member O'Callaghan
18 February 2016
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where appellant's witnesses not available at hearing – where appellant claimed denied procedural fairness – whether grounds for leave to appeal
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 28, 142
Pickering v McArthur  QCA 294
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
- Greg Ryan purchased a 1988 four wheel drive vehicle from Allan Hamblin. He bought it to give to his nephew to drive to Tasmania. The purchase was subject to Mr Hamblin providing a ‘satisfactory roadworthy report’.
- Mr Hamblin engaged Tarampa Motors (Mr Bartley’s business) to inspect the vehicle and carry out any necessary repairs to enable Mr Hamblin to provide the safety certificate. A safety certificate was provided by Mr Bartley and Mr Ryan completed the purchase of the vehicle for a total sum of $8,000.00. He took possession of the car.
- Having completed the purchase he took it to another mechanic, Jay Watson of Superior Auto Group, to service the vehicle and to ensure it was safe to drive to Tasmania. A mechanic, Antonio Neroni, an employee of Mr Watson carried out the service on the vehicle. He found items which he considered needed to be rectified. Mr Ryan had that work done and asked Mr Neroni to indicate which of the items of work he considered were necessary to ensure the safety of the vehicle. The cost of those works was $2,758.00.
- Mr Ryan commenced proceedings against Mr Hamblin and Mr Bartley claiming either or both of them were liable to compensate him for the cost of those repairs. The Tribunal dismissed the claim essentially on the basis that Mr Hamblin had provided a safety certificate which he was contracted to do, and they were not satisfied that Mr Bartley had been deficient or careless in the issue of the safety certificate. They considered that the other items identified by Mr Neroni were items of work outside that work which was required under the relevant code of practice to bring the vehicle to a state where a safety certificate could be issued.
- Mr Ryan wants to appeal that decision.
- His complaints in summary are that:
- The material that he filed by email prior to the hearing, namely the affidavits of Mr Watson and Mr Neroni were not properly considered by the Tribunal;
- QCAT did not respond to his request for information as to how he could arrange his witnesses to attend the hearing via phone, and consequently he did not make arrangements for the witnesses to be available;
- The Tribunal at the hearing did attempt to contact the witnesses, but they were not available, and in those circumstances he says, the Tribunal should have offered Mr Ryan the opportunity to adjourn the hearing so that his witness could be available to give evidence in response to that of Mr Bartley.
- His argument is essentially that he was denied procedural fairness, which has meant that he has suffered a substantial injustice.
- 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 when 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 the error.
- I have concluded, having read the transcript, that Mr Ryan was not denied procedural fairness as he suggests. I will address each of the issues raised by Mr Ryan in his application:
- The failure of the Tribunal to consider the affidavit material
- It is correct that the affidavits of Mr Neroni and Mr Watson were apparently not on the file at the time the hearing commenced. However, it is wrong to suggest the material was not considered by the Tribunal.
- Indeed the Tribunal was at pains to make sure that each defect identified by Mr Neroni in his affidavit was put to Mr Bartley for him to comment on.
- Pages 16 to 20 of the transcript record the Tribunal taking Mr Bartley through Mr Neroni’s affidavit.
- Mr Ryan is then given the opportunity to put to Mr Bartley and cross-examine Mr Bartley on the issues raised by Mr Neroni. He does so for some six pages of the transcript.
- The failure of QCAT to respond to Mr Ryan’s request in emails asking whether there were facilities to have his witnesses appear by phone
- Mr Ryan complains that his request for information about how Mr Neroni and Mr Watson could give evidence by phone were ignored. He says consequently his witnesses were not available and he has suffered an injustice because those witnesses would have been able to rebut Mr Bartley’s evidence. Mr Ryan says the Tribunal should have offered to adjourn the hearing when attempts to telephone his witnesses were unsuccessful.
- It is correct that in conducting proceedings the Tribunal must ensure that the rules of natural justice are observed, and that it ‘must ensure that so far as is practicable, that all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts’.
- It is also required ‘…to act with as little formality and technicality, and with as much speed as the requirements of this Act, and enabling Act and the rules and a proper consideration of the matter before the tribunal permit.’
- The transcript does not reveal any failure to provide natural justice. The Tribunal had before it the affidavits of Mr Neroni and Mr Watson and gave the evidence careful consideration. That evidence was put to Mr Bartley by the Tribunal and Mr Ryan was given plenty of opportunity to put to Mr Bartley all of the evidence from Mr Neroni in relation to the issues he found in servicing the car.
- Mr Ryan has to take responsibility for the conduct of his case. He was clearly alive to the issue that having provided affidavits it was appropriate that his witnesses attend the hearing, hence his enquiry to QCAT Registry about whether they could attend by phone.
- Having received no reply from the Registry, Mr Ryan should have made sure they were either at the hearing or at least available by phone. Indeed, Mr Ryan acknowledged as much to the Tribunal at the hearing.
- On page 31 of the transcript at line 25, Mr Ryan was asked by the Tribunal whether he wanted to call his witnesses. He said he wanted to telephone Mr Neroni. The Tribunal telephoned Mr Neroni at his workplace and the response was that ‘he’s got a day off today… he’s in tomorrow if that helps’.
- Mr Ryan says in response, ‘I apologise, Ms Griffiths, I did notify both gentleman [my emphasis]’.
- The Tribunal then obtained Mr Naroni’s mobile number and called it. Mr Naroni could not be contacted.
- Mr Ryan again apologised, ‘I apologise for that Ms Griffiths’.
- Mr Ryan was then asked by the Tribunal ‘whether there was any other evidence?’ Mr Ryan continued at this point to cross-examine Mr Bartley about his inspection of the vehicle.
- When again asked whether there was anything else he wanted to say, he made the point:
… I’m not a motor mechanic. I didn’t do the inspection. Mr Naroni did. Unfortunately his evidence conflicts with Mr Bartley’s in serious matters…
And he hasn’t been examined or cross-examined. His affidavit is unchallenged.
- From this exchange I am satisfied that despite no response from the Tribunal when he asked to have telephone facilities available, Mr Ryan was aware that his witnesses should be available to attend the hearing. Attempts were made to contact the witness. Despite not being available, their evidence was considered carefully by the Tribunal and put to Mr Bartley in cross-examination by Mr Ryan and through questions from the Tribunal.
- Indeed, the Respondents Mr Hamblin and Mr Bartley were disadvantaged in that Mr Neroni’s evidence was admitted and considered by the Tribunal despite them not having the opportunity to cross-examine Mr Neroni. Mr Hamblin commented ‘… I had a lot of questions I wanted to put to Mr Neroni too.’
c) The Tribunal should have offered to adjourn the hearing
- Mr Ryan at no stage requested an adjournment to allow his witnesses to be present.
- The Tribunal commented when Mr Neroni was not available, ‘well he’s not available. We work with the evidence we’ve got on the day, I guess. He’s not available. We tried his office and his mobile so that is it’. Mr Ryan replied at this point ‘thank you’. He did not suggest that that process was in any way unfair and that he wanted an adjournment to ensure that his witnesses could be available to be cross-examined.
- It is also noted that Mr Ryan advised the Tribunal earlier in the hearing (during cross-examination of Mr Bartley) that he had another witness outside the hearing room who had inspected the parts taken from the vehicle. He said at transcript page 24, line 20 ‘Ms Griffiths, I do have a witness I wish to call who is a motor mechanic…’. After cross-examination of Mr Bartley was finished, the Tribunal enquired of Mr Ryan ‘… do you want to bring your witnesses and…your witness in and…’ and again at line 15 ‘Mr Ryan, did you want to bring your witness in if he’s sitting outside?’.
- Mr Ryan responded, ‘Ms Griffiths, I think I’ll let the evidence stand on what is available to Your Honour’. In those circumstances Mr Ryan can not complain that he was denied the opportunity to provide rebuttal evidence.
- Accordingly, in circumstances where:
- Mr Ryan knew he should have had his witnesses available;
- The Tribunal made attempts to contact the witnesses by phone;
- Mr Ryan had a witness available who had inspected the parts taken from the car and he declined the Tribunal’s offer to have the witness give evidence;
- Mr Ryan cross-examined the Respondents and was able to put to the Respondents (particularly Mr Bartley) his witnesses assessment of the case;
- No request was made to adjourn proceedings;
I find that there has been no denial of procedural fairness and Mr Ryan has not suffered a substantial injustice.
- The Tribunal was entitled, as it did upon considering all of the evidence before it, to find that Mr Hamblin had complied with the agreement in providing the safety certificate issued by Mr Bartley, and that Mr Bartley had not acted ‘carelessly’ in issuing the certificate. It was entitled to find that he assessed the safety of the vehicle against the relevant standard and code of practice and found it to be satisfactory.
- Leave to appeal is refused.
 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) s 142(3)(a)(i).
Pickering v McArthur  QCA 294, at .
 Transcript 1-14, line 10.
 QCAT Act s 28(3)(a).
 Ibid s 28(3)(e).
 Ibid s 28(3)(d).
 Transcript 1-34, at line 33.
 Transcript 1-34, at line 36.
 Transcript 1-36, at line 10.
 Transcript 1-38, line 16.
 Transcript 1-31, line 4.
- Published Case Name:
Ryan Cost Consultant Pty Ltd v Allan Hamblin and Robert Bartley of Tarampa Motors
- Shortened Case Name:
Ryan Cost Consultant Pty Ltd v Hamblin
 QCATA 99
Senior Member O'Callaghan
18 Feb 2016