Walsh v Atherton Automotive Pty Ltd
[2019] QCATA 8
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Walsh v Atherton Automotive Pty Ltd[2019] QCATA 8
- Add to List
Walsh v Atherton Automotive Pty Ltd[2019] QCATA 8
Walsh v Atherton Automotive Pty Ltd[2019] QCATA 8
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Walsh v Atherton Automotive Pty Ltd [2019] QCATA 8 |
PARTIES: | BENJAMIN HAMILTON WALSH (applicant) v ATHERTON AUTOMOTIVE PTY LTD (respondent) |
APPLICATION NO/S: ORIGINATING APPLICATION NO: | APL216-17 MCDO19/17 (Townsville) |
MATTER TYPE: | Appeals |
DELIVERED ON: | 21 January 2019 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Holzberger |
ORDERS: | 1. Leave to appeal is refused |
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEALLIES – whether the stated grounds of appeal are proper grounds – whether the Tribunal’s findings are findings of fact or mixed law and fact – whether leave should be granted Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 123, 142 Bakker & Kramer v Richards Projects Pty Ltd [2014] QCATA 99 |
REPRESENTATION: |
|
Applicant: | Self-represented |
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]Atherton Automotive Pty Ltd (Atherton Automotive) has applied for leave to appeal and appeal the decision of the Tribunal to order it to pay the sum of $3,069.87 inclusive of
$112.50 in costs to Benjamin Hamilton Walsh (Mr Walsh).
- [2]Atherton Automotive’s grounds for appeal are set out in a document titled ‘Grounds for Appeal’ filed in the Tribunal on 14 September 2017. They are:
- The decision purports to give judgment against Atherton Automotive, Rob Cahill Automotive Pty Ltd and Robert Cahill rather than Atherton Automotive Pty Ltd alone;
- Failure to provide written reasons for the decision, despite a request for reasons; and
- The Tribunal’s findings in relation to the existence of a warranty involved a mistake of law and fact.
- [3]The first two of these are not proper grounds of appeal.
- [4]In its oral decision delivered on 15 June 2017, the Tribunal clearly, and correctly in my view, identified Atherton Automotive as the only one of the three named respondents against whom judgement was to be entered[1] and that is reflected in the written memorandum of decision.
- [5]Failure to deliver written reasons may be a breach of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) but that does not in itself provide a ground for appeal. The timing or nature of Atherton Automotive’s request is not contained in the material before me, but the grounds of appeal document acknowledges receipt of an ‘audio CD’ which would discharge the Tribunal’s obligation to provide written reasons in any event.[2]
- [6]Atherton Automotive asserts that in implying a warranty presumed to be the statutory warranty under Australian Consumer Law, the Tribunal made errors of mixed law and fact.
- [7]Rather than implying a statutory warranty, the Tribunal has found that a contractual warranty existed.
- [8]
- [9]Clearly Atherton Automotive disagrees with that finding, but this ground is based on a misunderstanding of the Tribunal’s decision. It does not involve a question of law or a question of mixed law and fact.
- [10]An appeal on a question of fact or mixed law and fact requires leave of the Appeal Tribunal.[5]
- [11]Findings of fact by a Tribunal generally will not be overturned on appeal unless the Appeal Tribunal is satisfied that there are compelling inferences to the contrary which can be drawn from the evidence.[6] That is not the case here. Leave should not be granted simply to allow a party a rehearing of the facts after remedying deficiencies in their evidence or the way their case was presented.
- [12]Leave to appeal is refused.