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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Midgley v PDD Group Pty Ltd  QCATA 40
pdd group pty ltd
10 March 2020
8 March 2020
Dr J R Forbes, Member
The application for leave to appeal is refused.
APPEAL – APPLICATION FOR LEAVE TO APPEAL – consumer transaction – purchase of ride on mower – respondent as supplier – whether goods of acceptable quality – where failure attributed to faulty air cleaner – whether goods properly maintained by applicant purchaser – whether failure of goods caused by improper servicing of component by applicant – where applicant found by tribunal to have contributed to failure of machine – where liability apportioned on a two-third to one third against supplier - whether that finding open on the evidence – where purpose and limitations of an application for leave set out - where respondent tendered inadmissible material on application for leave – where no error in primary decision – where leave to appeal refused
Queensland Civil and Administrative Tribunal Act 2009 (Qld) section 143
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Clarke v Japan Machines (Australia) Pty Ltd [1984[ 1 Qd R 404
Deputy Commissioner of Taxation v Ahern  2 Qd R 158
Drew v Bundaberg Regional Council  QCA 359
Felton and Anor v Raine and Horne Real Estate  QCATA 330
Fox v Percy (2003) 214 CLR 118
Franklin & Ors v Burleigh Town Village Pty Ltd  QCATA 183
Glenwood Properties Pty Ltd v Delmoss Pty Ltd  2 Qd R 388
Grewal v Di Camillo  VSC 640
JM v QFG  1 Qd R 373
Mickelberg v The Queen (1989) 167 CLR 259
Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611
QUYD Pty Ltd v Marvass Pty Ltd  1 Qd R 41;  QCA 257
Secretary of State for Education and Science v Tameside Metropolitan Borough Council  AC 1014
Secretary to the Department of Premier and Cabinet v Hulls  3 VR 331
Snell v Moynihan  QCATA 316
Thompson and Anor v Jedanhay Pty Ltd [2012[ QCATA 246
W (an infant), In Re  AC 682
REASONS FOR DECISION
- On 22 July 2016 the Applicant (`Midgley’) purchased a $5,000 mower from the Respondent (`PDD). It lasted about nine months. Was the failure caused by some inherent defect, or by Midgley’s poor maintenance, or both? Those are the present questions.
- It is common ground that PDD was the supplier of the mower, and Midgley was a consumer, within the meaning of the Competition and Consumer Act 2010 (Cth) (`the Act’) Division 1, `Consumer Guarantees’.
- By virtue of section 54 of the Act PDD guaranteed that the mower was of acceptable quality.
- In April 2017 the mower’s engine sustained serious damage, rendering it inoperable.
- The essential question is whether the engine was intrinsically defective, or whether Midgley caused or contributed to its collapse by poor maintenance, particularly by cleaning its filter with an air compressor.
- In evidence which the Adjudicator evidently accepted, PDD explained:
[G]oing back 10, 15 years ago, everyone used to blow out the air filters. They were [a] different sort of air filters ... [B]ut now ... you’ve basically got microfilm and there’s a different degree of quality of micros within the filter, and when you put air or you blow them, what happens is they expand. So, therefore, when they expand, dust can get through the holes and it’s not trapped within the air filter. It just goes through the holes and into the engine. ... So how the dirt and dust got into the engine is what caused it to fail.
- While the Adjudicator initially doubted that a customer might reasonably be unaware of this difficulty, the Adjudicator was eventually satisfied that a warning Midgley received meant that he was partly responsible for his own misfortune – that the likelihood of air-compressor damage was reasonably foreseeable -
... the use of the air has contributed and [the tribunal] accepts the evidence of [PDD] that it has contributed and that there should be a one-third reduction of $1,238 from the $3,714.
- From that order PDD now seeks leave to appeal. PPD’s position is that Midgley is entirely to blame for the breakdown. Midgley, on the other hand, does not contest the apportionment of liability.
Purposes and limitations of leave applications
- When dealing with an application for leave to appeal, the tribunal is subject to the following principles.
- Additional evidence is admitted only if it was not reasonably available at the time of the original hearing, and if it would probably have a significant effect on the result. As a Judicial Member explained:
If parties were allowed to continue to submit material following the conclusion of the oral hearing procedural fairness would dictate that the other party have the opportunity to respond – hearings might never come to an end.
- In a tribunal designed for speed and simplicity that is a particular concern.
A search for appellable error
- The object of an application for leave is to decide whether it is reasonably arguable that the decision in question is affected by legal error, or is utterly unsupported by the evidence (itself a form of legal error), or depends on a finding of fact that is not merely debateable, but rationally indefensible. It is for the applicant to identify and establish an arguable point of appeal. The present application does not specify one.
- Then, if leave is granted, the appeal itself may or may not succeed; what is arguable may not, in the final analysis, be accepted.
The primary judge’s function
- An application for leave is not an opportunity to `second guess’ the decision maker’s findings on points of fact or credit. It is not an occasion to repeat or reargue evidence that the adjudicator reasonably rejected, or to present material that could have been put before him, but was not. `Finality in litigation is highly desirable’.
- It is not legal error to prefer one version of the fact to another, or to give less weight to one party’s case than he or she thinks it deserves. Findings of fact are not normally disturbed if they have rational support in the evidence, even when another view is possible.
If there is evidence, or if there are available inferences that compete for a judge’s acceptance, no error of law occurs simply because the judge prefers one version of evidence to another, or one set of inferences to another. That is his function ... Even if the evidence is strongly one way the appeal court may not intervene simply because it reaches a different conclusion and this, even if it regards the conclusion of the trial judge as against the weight of the evidence.
It appears to me that a factual conclusion cannot be treated as infected by legal error unless it is supported by no evidence whatever, or unless it is clear, beyond serious argument, that it is wrong. That this court merely disagrees with a factual view of a tribunal does not show that a decision based on it is legally erroneous.
- Midgley’s case is that the mower failed completely within nine months of purchase. It first broke down about six months earlier, when a drive belt had to be replaced. But PDD denies liability for the mower’s eventual radical failure. It contends that Midgley’s improper or insufficient maintenance of an air filter caused the oil level in the motor to fall, causing, in turn, the motor’s catastrophic disintegration. It is common ground that fragments of the motor then blew a hole in the crankcase. Consequently the amount of oil in the machine immediately before that terminal event could not be accurately measured. In response to Midgley’s complaint, PDD’s mechanic reported:
[I] found excessive wear in pistons [and] cylinders due to ingestion of debris through air filter leading to engine using oil to excess. This has lowered oil level to a point where oil pump has not been able to lubricate main and big end bearings leading to seizure of big end bearing and destroying connecting rod and crankcase housing.
- Midgley freely admitted that once, at least, he cleaned the filter with an air compressor, before he was warned by DPP’s mechanic: ` Don’t do that. It can damage the air filter.’
- Unchallenged is Midgley’s evidence that, while DPP represented to him that the machine was capable of mowing three acres or more, the lawn upon which it was used was only about one acre in area.
- The Adjudicator noted Midgley’s admission that he used his air compressor on the filter, but was not satisfied that this was the sole or indeed the major cause of the mower’s final collapse:
The Tribunal ... is satisfied that the use of the air compressor has contributed, to some extent, to the engine being dusted or to the dusting of the engine. However, the tribunal’s not satisfied that the act of taking an air filter out, tapping it out and using a 12-volt air compressor on one or more occasions would ... be a sole contributing factor to a $5000 machine containing a reputable Kawasaki FR domestic-use motor - [that was] put by [DPP] as a reliable, quality item ... The Tribunal is not satisfied that the use of the air compressor would alone defeat a claim in regards to durability ... [or] would cause such a catastrophic failure of the engine within a nine-month period.
- In the absence of expert evidence – an absence that the Adjudicator regretted- those were reasonable and available inferences from the evidence available to him. They were findings of fact that he was entitled to make. They may well be conclusions that other reasonable observers would not share, but that is not an indication of appellable error. An appeal tribunal is not entitled to interfere with the primary judge’s supportable findings of fact, or to substitute it own opinion, even if so inclined.
- The Adjudicator was not inattentive to DPP’s evidence on Midgley’s treatment of the air filter, but he declined give it the weight that DPP would have preferred. That was his prerogative - `that is his function’. It is elementary logic that once it was found that Midgley was only partly to blame, and absent any other human intervention, the defect was inherent in the machine as supplied by DPP, and, under the Australian Consumer Law, the legal responsibility of the supplier.
- As already noted, DPP has not identified any specific appellable error, nor do I detect one. The applicant for leave simply reasserts the case that failed at first instance, namely that Midgley so misused the mower that he alone is responsible for the loss.
- There is no prospect of a reasonable argument that an appellable error has occurred. The application for leave to appeal should be refused.
The application for leave to appeal is refused.
 Transcript of hearing 11 July 2019 (`T’) page 23 line 15; page 27 line 17..
 T page 23 lines 19-26.
 T page 23 lines 42-45.
 I.e. the amount quoted for a new engine: T page 44 lines 29-31. In fact, $3,714 minus $1,238 is $2,476, but the minute discrepancy may be disregarded.
 Originating application filed 12 January 2018 part C.
 T page 45 line 4.
 There is no appeal as of right; leave is required by QCAT Act s 143.
 Clarke v Japan Machines (Australia) Pty Ltd [1984[ 1 Qd R 404; Deputy Commissioner of Taxation v Ahern  2 Qd R 158 at 163-164; Mickelberg v The Queen (1989) 167 CLR 259 at .
 Franklin & Ors v Burleigh Town Village Pty Ltd  QCATA 183 at  per Thomas QC.
 Application for leave to appeal filed 25 July 2019 Part C.
 As Mr Stevens for DPP conceded upon oral hearing of this application.
 T page 42 line 40.
 Secretary to the Department of Premier and Cabinet v Hulls  3 VR 331 at ; QUYD Pty Ltd v Marvass Pty Ltd  1 Qd R 41;  QCA 257 at ; Drew v Bundaberg Regional Council  QCA 359 at ; Felton and Anor v Raine and Horne Real Estate  QCATA 330 at .
 Snell v Moynihan  QCATA 316 at ; Thompson and Anor v Jedanhay Pty Ltd [2012[ QCATA 246 at .
 Fox v Percy (2003) 214 CLR 118 at .
 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at ; In Re W (an infant)  AC 682 at 700 per Lord Hailsham; Secretary of State for Education and Science v Tameside Metropolitan Borough Council  AC 1014 at 1025; Glenwood Properties Pty Ltd v Delmoss Pty Ltd  2 Qd R 388 at 389.
 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151 per Kirby P (emphasis added); Grewal v Di Camillo  VSC 640 at .
 JM v QFG  1 Qd R 373 at 391 per Pincus JA.
 Report and quotation by PDD dated 15 April 2017.
 T page 25 line 21.
 T page 24 line 47.
 T page 6 lines 19-20.
 T page 5 line 20; page 8 lines 35-38.
 T page 43 lines 24-42.
 T page 21 line 19; page 33 line 36.
 Azzopardi v Tasman UEB Industries Ltd (above).
- Published Case Name:
PDD Group Pty Ltd v Gerard Midgley
- Shortened Case Name:
Midgley v PDD Group Pty Ltd
 QCATA 40
10 Mar 2020