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Shorrock v Mechanix Plus & Ors[2019] QCATA 31

Shorrock v Mechanix Plus & Ors[2019] QCATA 31

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Shorrock v Mechanix Plus & Ors [2019] QCATA 31

PARTIES:

CAMIRA SHORROCK

(appellant)

 

v

 

MECHANIX PLUS

(first respondent)

KISMET PTY LTD

(second respondent)

BRIDGESTONE SELECT WYNNUM

(third respondent)

NRMA INSURANCE

(fourth respondent)

APPLICATION NO/S:

APL135-18

ORIGINATING APPLICATION NO/S:

MCDO903-17 (Brisbane)

MATTER TYPE:

Appeals

DELIVERED ON:

6 March 2019

HEARING DATE:

22 February 2019

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

  1. Leave to appeal granted.
  2. The appeal is allowed.
  3. The decision of 29 September 2017 is set aside.
  4. The matter is returned to a differently constituted Tribunal for reconsideration according to law on the papers subject to any further order made by the Tribunal.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where the applicant claimed damages or compensation pursuant to the Australian Consumer Law – where the Tribunal failed to comprehend and determine the applicants cause of action – where the decision of the Tribunal amounted to a fundamental error of law

Competition and Consumer Act 2010 (Cth) Schedule 2: The Australian Consumer Law, s 61(1), s 61(2)

Pickering v McArthur [2005] QCA 294

REPRESENTATION:

 

Applicant:

Self-represented

First and second respondents:

Self-represented by I Becker

Third respondent:

No appearance

Fourth respondent:

Self-represented

APPEARANCES:

 

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

  1. [1]
    The applicant Ms Shorrock owned a Toyota Echo motor vehicle. The second respondent, Kismit Pty Ltd, runs an automotive repair shop trading under the business name Mechanix Plus.
  2. [2]
    In August 2015 Ms Shorrock took her vehicle to Mechanix Plus to have the air-conditioning repaired. Mechanix Plus did the work utilising the services of the third respondent, Bridgestone Select Wynnum (Bridgestone), a specialist in air-conditioning servicing of motor vehicles.
  3. [3]
    Ms Shorrock’s vehicle was returned to her on 25 August 2015. The air-conditioning compressor had been replaced.
  4. [4]
    In March 2016 the air-conditioning system failed again. Mechanix Plus identified the problem as a damaged condenser. Damage was also done to the new compressor. They said they had suggested she replace the condenser when they had done the repairs to the compressor in August 2015. Ms Shorrock said they had not told her to replace the condenser.
  5. [5]
    Ms Shorrock filed a consumer dispute in the Tribunal seeking a refund of the sum of $1,280 that she had paid Mechanix Plus for the repair of the air-conditioning unit and other sundry fees paid including the Tribunal filing fee.
  6. [6]
    The matter came on for hearing before Justices of the Peace.
  7. [7]
    Prior to the matter being heard Mechanix Plus joined Bridgestone and Ms Shorrock’s motor vehicle insurer, NRMA, as respondents.
  8. [8]
    Ms Shorrock’s application was dismissed. It was dismissed with the following reasons given by the Tribunal:

[10]The applicant alleges that the compressor was damaged in the collision of 30 April 2015 and seeks an order that she be refunded the $1280 she paid because the damage arose out of the collision.

[11]This is disputed on the ground that the damage arising out of the collision was not near the compressor.

[13]… as there was no damage to the absorber and front bumper reinforcement, both of which are behind the compressor, there is no evidence as to the nexus between the damage to the compressor and the collision on 30 April 2015.

  1. [9]
    It was no part of the applicant’s claim that the vehicle’s air-conditioning system failed because the car had been involved in a collision. Ms Shorrock’s claim against the repairer Mechanix Plus concerned only the alleged failure of the repairer to inform her appropriately that she should also replace the air-conditioning condenser unit or the repairs to the compressor might be futile and the air-conditioning system fail again.
  2. [10]
    Mechanix Plus claimed that that information was noted in their invoice for the work done and the invoice was handed to her. Ms Shorrock said she was not informed orally about that when she collected her car and in the circumstances the suggested notice contained in the invoice was inadequate to properly apprise her of the necessity of replacing both the compressor and condenser to avoid future failure.
  3. [11]
    In her initiating application Ms Shorrock referred to Mechanix Plus breaching guarantees as to fitness for purpose of the mechanical services provided by them imposed pursuant to ss 61(1) and 61(2) of the Australian Consumer Law.[1]
  4. [12]
    Ms Shorrock wants to appeal the decision by the Justices of the Peace.
  5. [13]
    Given this is an appeal from a decision made in the Tribunal’s Minor Civil Dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.[2]
  6. [14]
    Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.[3]
  7. [15]
    There is clearly an error to be corrected here. The Tribunal entirely misconstrued Ms Shorrock’s cause of action. A cause of action is all the material facts giving rise to a claim enforceable in a court or Tribunal. The Justices of the Peace failed to understand and determine the applicant's cause of action.
  8. [16]
    It is clear there has been a substantial injustice done Ms Shorrock in the Tribunal hearing below which must be corrected. The decision made by the Tribunal amounts to a significant and fundamental error of law not attributable to any misstatement or error on the part of any party to the proceeding.
  9. [17]
    Leave to appeal is granted and the appeal allowed. The decision of the Justices of the Peace made 18 May 2018 is set aside. The matter should be returned to a differently constituted Tribunal for reconsideration.
  10. [18]
    There has been substantial material filed in the proceeding to date. Given the amount of the claim, there has been voluminous material filed. I see no value in hearing yet further evidence and accordingly direct that the matter be determined by a differently constituted Tribunal on the existing papers and evidence taken at the hearing of 29 September 2017 subject to any further order made by the Tribunal.

Footnotes

[1]  Competition and Consumer Act 2010 (Cth), Schedule 2.

[2]  QCAT Act, s 142(3)(a)(i).

[3]  Pickering v McArthur [2005] QCA 294, [3].

Close

Editorial Notes

  • Published Case Name:

    Camira Shorrock v Mechanix Plus, Kismet Pty Ltd, Bridgestone Select Wynnum & NRMA Insurance

  • Shortened Case Name:

    Shorrock v Mechanix Plus & Ors

  • MNC:

    [2019] QCATA 31

  • Court:

    QCATA

  • Judge(s):

    Member Howe

  • Date:

    06 Mar 2019

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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