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McVicker v Bunnings Group Ltd[2021] QCATA 88

McVicker v Bunnings Group Ltd[2021] QCATA 88

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

McVicker v Bunnings Group Ltd & Anor [2021] QCATA 88

PARTIES:

PAULA LOUISE McVicker

(applicant/appellant)

v

bunnings group limited

diy resolutions pty ltd

(respondents)

APPLICATION NO/S:

APL172-20

ORIGINATING

APPLICATION NO/S:

MCDO 119/19

MATTER TYPE:

Appeals

DELIVERED ON:

9 July 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

  1. Leave to appeal granted.
  2. Appeal allowed.
  3. The decision of the Tribunal dated 20 May 2020 is set aside.
  4. The application is remitted to the Minor Civil Disputes list at Cleveland for determination by another adjudicator/member.
  5. The evidence in the first hearing be evidence in the new hearing with liberty to the parties to present further evidence.
  6. That the parties be provided with a copy of the transcript for the hearing conducted on 13 February 2020 and 30 April 2020.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – LEAVE TO APPEAL – CONTROL OVER PROCEEDINGS – PROCEDURAL FAIRNESS – where the applicant sought to present further evidence despite a direction providing a timetable to file evidence before the hearing – where the Tribunal refused to allow further evidence – where the applicant sought leave to admit fresh evidence in the appeal – whether in refusing the permit the applicant to lead further evidence in the hearing was a denial of procedural fairness – whether fresh evidence should be admitted in the appeal – whether prejudice to the respondents if allowed – whether new hearing should be ordered

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 28, s 29, s 142

Terera & Anor v Clifford [2017] QCA 181.

APPEARANCES &

REPRESENTATION:

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]
    In November 2018 Ms McVicker purchased a do-it-yourself kitchen from Bunnings Group Limited. The kitchens are on display at the Bunnings store and are produced and supplied by DIY Resolutions Pty Ltd through Bunnings’ outlets. The kitchens are supplied as flatpacks for self-assembly and installation by the purchaser. Bunnings/DIY Resolutions supplies comprehensive instructions on the assembly of the kitchen and installation. Neither Bunnings nor DIY Resolutions assembles or installs the kitchens.
  2. [2]
    The flatpack kitchen is called a “Kaboodle Kitchen System” which has various component parts such as benchtops, under bench cupboards, drawer components, overhead cupboards and various types of finishes and closures. The Kaboodle Kitchen catalogue promotes its DIY range being “focused on design, quality and functionality”. It goes on to promote the product by saying:

We give you the whole kit and kaboodle, literally! from advice on design, through to detailed information on assembly and installation – we’ve got everything you need to make the end result everything you hoped it would be and more.

  1. [3]
    After purchasing the kit, Ms McVicker assembled the kitchen from the flatpacks with the assistance of Damon Tester, a carpenter, who she engaged to help her with the installation. Ms McVicker in fact purchased the products using Mr Tester’s Bunnings trade discount “Powerpass Account”. In so far as it might be relevant, the goods were actually sold/invoiced to Mr Tester although paid for by Ms McVicker.
  2. [4]
    After the installation problems arose with the functionality of the kitchen, Ms McVicker contacted both Bunnings and DIY Resolutions for assistance in rectifying problems that she was having with the installed kitchen. In particular, the self-closing drawers were not operating correctly and required a service call by Mr Smith from Bunnings. He accepted there were problems and changed over the runners. The push to open cabinet doors were also problematic and one door at least required replacement. Some of the cabinetry hinges were loose and one had fallen off.
  3. [5]
    Throughout 2019, there were numerous call backs by representatives of both Bunnings and DIY Resolutions to try and rectify issues with the cabinetry; these included Mr Taafle and Mr Cubis, both display and maintenance team members for DIY Resolutions. They also provided service calls to assist after Ms McVicker installed a new benchtop and shifted the cabinetry out from the wall by 100mm. It should also be noted that there was a general complaint with the finish of the cabinetry surface which was discoloured and pitted.
  4. [6]
    Ultimately, Ms McVicker became totally dissatisfied with the product and wanted a replacement kitchen. Despite the assistance provided by both DIY Resolutions and Bunnings, there was an impasse and Bunnings would not agree to a replacement kitchen. As a consequence Ms McVicker commenced a proceeding in the minor civil disputes jurisdiction of the Tribunal claiming damages. The claim was for $21,815.29 being the amount of a full refund of the purchase price for the flatpack kitchen together with the cost of its removal of $3,376, as well as the Tribunal filing fee of $345.85.
  5. [7]
    The application was defended by Bunnings and DIY Resolutions. Both Ms McVicker and DIY Resolutions and Bunnings filed extensive material in the minor civil dispute proceeding which included statements of evidence, information in respect of the installation and assembly of the DIY kitchen, purchase invoices and photographs.
  6. [8]
    After a hearing, the Tribunal made a decision on 20 May 2020 that Ms McVicker’s application be dismissed. The reasons for dismissing the claim are comprehensive and include findings of fact that the problems that Ms McVicker was experiencing in the installed Kaboodle kitchen arose from her own installation, alterations, and failure to adhere to the advice of DIY Resolutions’ representatives, in particular, in respect of the drawer handles. At [99] the learned Adjudicator said that:[1]

….the applicant’s actions were the cause of the dysfunction in the kitchen cabinetry or hardware. The Applicant failed to properly assemble or install the kitchen, which thereafter impacted on the operation of the drawers and cabinets. The Applicant changed her mind about the type of runners and wanted a different style, which was supplied and installed by DIY at no cost to the Applicant. Further, and contrary to specific advice from DIY, the applicant required DIY to install drawer handles that were incompatible with the style of function of cabinetry chosen by the Applicant. Afterwards, the Applicant made significant alterations in the kitchen which adversely affected the structure and alignment of the cabinetry, which in turn caused problems regarding the functionality of the kitchen hardware components. The kitchen’s dysfunction and damage are a consequence of the Applicant’s own actions, and not the result of product defects.

  1. [9]
    Another issue was the discolouration or finish of the cabinetry. Ms McVicker alleged there were bumps, rippling and orange peel effects discovered when the wrapping came off. Photos were tendered which showed this. It was on the basis of this evidence that the learned Adjudicator reached the following conclusion that:[2]

…there is insufficient evidence as to how the effects impact on the overall appearance of the finish. For example, whether the effects are only apparent by close examination and lighting adjustments or if they are obviously apparent when standing away from the cabinetry.

  1. [10]
    Having set out her concerns about the evidence, this led the learned Adjudicator to make a finding of fact that the finish of the cabinetry has some minor imperfections but did not have an adverse effect on the overall appearance of the cabinets. Had she viewed the sample of the cabinetry Ms McVicker took with her to the Tribunal she may have been better informed about the finish. This is dealt with later in these reasons.
  2. [11]
    Furthermore, the Tribunal had “significant reservations about the reliability of the applicant’s claims and evidence”[3] and set out the reasons for that. Although the learned Adjudicator found that the kitchen was ‘dysfunctional’[4] it was not as a result of the product supplied. Therefore, the ultimate finding was that the kitchen products supplied by Bunnings and DIY Resolutions were of acceptable quality and did not infringe the statutory warranties under the Australian Consumer Law. The application was dismissed.
  3. [12]
    On 19 June 2020, Ms McVicker filed an application for leave to appeal or appeal the Tribunal’s decision. Attached to the application are the ‘grounds of appeal’ which make numerous complaints about the decision in a narrative way but are summarised as follows:
    1. (a)
      the Tribunal was in error in not finding that the kitchen product was defective;
    2. (b)
      Ms McVicker was not permitted to lead additional evidence to rebut the evidence of Bunnings and DIY Resolutions;
    3. (c)
      Ms McVicker’s request for her installer to give evidence was refused (Mr Tester);
    4. (d)
      general complaints about the findings of fact made by the learned adjudicator;
    5. (e)
      failure of the Tribunal to accept the physical evidence produced by Ms McVicker to show the condition of the panelling;
    6. (f)
      the conclusion that the product had an acceptable finish;
    7. (g)
      a failure to permit Ms McVicker to respond to all of the evidence of Bunnings and DIY Resolutions.
  4. [13]
    Ms McVicker has filed submissions in support of her grounds of appeal as have Bunnings and DIY Resolutions. In addition, Ms McVicker filed an application to lead fresh or new evidence on 14 September 2020. The attachment to the application lists that the evidence sought to be admitted relates to:
    1. (a)
      Emails attaching photos of handles and commentary on the installation of the handles (PMcV22);
    2. (b)
      Measurement of the thickness of the handles with photos of handles (PMcV 23);
    3. (c)
      Kaboodle promotional material about flatpack products (PMcV 24);
    4. (d)
      Kaboodle promotional material  about doors and panels ‘thermoformed’ (PMcV 25);
    5. (e)
      Statement of Iva Patricia Milburn dated 27 August 2020, a witness deposing to her observations about the kitchen (PMcV 26);
    6. (f)
      Statement of Cameron James McVicker O'Shea dated 26 August 2020, another witness deposing to his observations about the kitchen being installed and subsequently also his opinion about defects. Importantly, his job is to clean the kitchen and further observations while undertaking this task after the work was finished. (PMcV 27);
    7. (g)
      Statement of Paula Louise McVicker dated 4 September 2020, which is a reiteration of the evidence given at the hearing (PMcV 28);
    8. (h)
      Statement of Damon Tester dated 4 September 2020, the builder who helped Ms McVicker install the kitchen. Although his evidence goes to the factual circumstances of the installation, defects with the drawers, closures and runners and the quality of the finish on the product, he also expresses an expert opinion as a builder of some 30 years’ experience as to the quality of the product.  He states that in April 2020 he was asked to give evidence about these matters by Ms McVicker, was willing to do so in terms of this statement but “was never called by QCAT to allow me to give evidence”. He says he was later informed by Ms McVicker that she was not allowed to call any further evidence. (PMcV  29);
    9. (i)
      There are also statements and emails, the content of which is included in the evidence given at the hearing (PMcV 30 – PMcV 36).
  5. [14]
    I will deal with each of the items of new evidence set out above in sequence save for the last documents in (i). This is not fresh evidence and for that reason, will not be considered in the determination of the application.
  6. [15]
    Whether the Appeal Tribunal should receive fresh evidence is considered having regard to the accepted principles set out by the Court of Appeal in Clarke v Japan Machines Pty Ltd (Australia) Pty Ltd[5] as follows:

The classic statement of what amounts to “special grounds” for reception of further evidence upon an appeal was approved recently by Lord Bridge in Langdale v. Danby [1982] 3 All E.R. 129 at 137–138. Three conditions must be fulfilled. “First it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive: third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.”

  1. [16]
    It is appropriate to consider the application to admit fresh evidence in the appeal before the substantive appeal. The reason for this is that it is determinative of whether the appeal is allowed. Also, that some of this evidence was sought to be led by Ms McVicker in the substantive hearing below but not permitted to do so by the Tribunal. Also, she was not given an opportunity to question some of the respondent’s witnesses, Mr Taafle or Mr Cubis. The transcript of the hearing demonstrates that she was offered little assistance in trying to conduct her case.[6]
  2. [17]
    To put the application for fresh evidence into context, it is also necessary to have regard to what occurred prior to the hearing to appreciate some of the issues that faced Ms McVicker, bearing in mind she is not a lawyer. Both Bunnings and DIY Resolutions sought to have their representatives attend the hearing by telephone and they both filed applications in the Tribunal to do so on 22 January 2020. The reasons being that both Ms Tran (for Bunnings) and Mr Tram (for DIY Resolutions) resided in Victoria. Ms McVicker was given notice of those applications but in an email to the Tribunal opposed their attendance by phone and said:

As Bunnings is a very large company with offices all over Australia and the items were purchased from stores at Capalaba and Manly West which are within 30 minutes drive of the courthouse I cannot understand why a representative from either store or Bunnings Head Office in Mt Gravatt not be able to attend … I would also request DIY Resolution the second respondent to remind (sic) of this as their representative Brian Tran also attended mediation as listed as general counsel on letters he has sent to me.

  1. [18]
    On considering both applications and the objections, the Tribunal made an order on 23 January 2020 as follows:
  1. The first and second respondents are given leave to attend the hearing by telephone.
  2. The respondent companies may appear by fully employed in-house counsel.
  3. All evidence on which the parties intend to rely must be filed and served at least 7 days prior to hearing.
  1. [19]
    It is the last part of the order which then became troublesome for Ms McVicker. The deadline for filing material by all parties was 6 February 2020 with the hearing to commence on 13 February 2020. Bunnings and DIY Resolutions filed their material in response to the application on 5 February 2020. However Ms McVicker sent her material to the respondents by express post. After receiving the respondents’ material, Ms McVicker sent further material in reply to the respondents the day before the hearing. She sought to rely on this at the hearing, which of course was not in compliance with the order of 23 January 2020. This became problematic for Ms McVicker.
  2. [20]
    Ms McVicker met with resistance from the Tribunal at the very start of the hearing when she sought to have the respondents’ witnesses attend the hearing so she could question them. Mr Smith was in attendance but Mr Taafle and Mr Cubis were not. The latter two witnesses were both involved in trying to address problems that Ms McVicker was having after the kitchen was installed. Upon raising this issue Ms McVicker was vigorously questioned by the Tribunal about the reasons for wanting these witnesses available and what she intended to ask them.[7]
  3. [21]
    Mr Taafle’s evidence is contained in the statement he made on 20 January 2020. It was important for the respondents’ case that all of Ms McVicker’s problems were of her own making. His evidence related to his attendance at the premises to inspect the installed kitchen and various steps he undertook to assist Ms McVicker. His involvement in relation to the rectification work undertaken was between December 2018 and June 2019. In particular, on the last visit he makes observations about noting that Ms McVicker had performed further work on the kitchen and the benchtop had been replaced and the cabinetry been moved out by about 100mm. This conclusion, untested was obviously detrimental to Ms McVicker’s case.
  4. [22]
    Mr Cubis’s evidence is contained in his statement dated 20 January 2020, and of a similar nature. He attended the premises and made observations about the lack of number of screws in the drawers and also the fact that the handles on the drawers that Ms McVicker wanted to use were not suitable. Again this evidence was particularly relevant in rebutting Ms McVicker’s complaints.
  5. [23]
    The respondents relied on a statement from Ian Murfit, the General Manager – Supply Information Technology of DIY Resolutions. His evidence went to the quality of finish of the kitchen about which Ms McVicker complained by reference to photographs taken of other kitchens supplied by Ikea and Freedom. This evidence went in without giving Ms McVicker any opportunity to question Mr Murfit about his opinion.
  6. [24]
    Then attached to the submissions by Ms Tran, for DIY Resolutions, there is a statement from Mike Smith who is the Home Services State Sales Manager. His evidence goes to his dealings with Ms McVicker. He was available at the hearing and questioned by Ms McVicker.
  7. [25]
    Also attached to those submissions there is other evidence including statements and emails from individuals of DIY such as Andrew Wood, and Margaret Walford. Essentially, the submission relied upon all DIY Resolutions’ evidence filed on 5 February 2020 which Ms McVicker had to address at the hearing.
  8. [26]
    Returning then to the statements of Mr Taafle and Mr Cubis the learned adjudicator raised the issue that the applications to have them attend were not provided to Bunnings and DIY Resolutions within the seven days. The following exchange is relevant to Ms McVicker’s understanding of how the hearing process operated:

Adjudicator: Thank you. Right. I notice – and I just want to ask the applicant why did you post these documents rather than email them to the respondents?

Ms McVicker: It’s what QCAT told me to do. When I rang the helpline, they said to keep hold of them until they had been processed and then send them. But I didn’t get any notification of process, so I thought I need to send them. So I sent them yesterday. I was having problems getting larger emails through to the respondents.

  1. [27]
    Then, when questioned about what she wanted to know from those witnesses[8] this caused Ms McVicker, it appears from the transcript, to become somewhat flustered and said:

To be honest…..not prepared….I wasn’t too sure.

  1. [28]
    And then the learned adjudicator went on to say:

Adjudicator: It’s my decision as to whether I grant this application of yours. So I want to know why this witness should be here. And if you’re just going to say ‘asking questions’ – well, I mean, I don’t know. Why is it so important that they be ordered by this Tribunal to leave their place of business and to come here for this hearing?

Ms McVicker: It’s not. Sorry. I – I can proceed without it. I ---

Adjudicator: Well I did suggest to you that I might consider asking the respondents if those people might be available on the phone if you wanted to ask them questions.

Ms McVicker: I – be honest, I’m not prepared. I didn’t have my questions ready. I had questions regarding their affidavit and their version of events.

Adjudicator: No. I’m not talking about now.

Ms McVicker: Yes.

Adjudicator: This matter – I don’t – I haven’t decided whether it will proceed. But the – if those – if those people were to be available on the phone for you to ask them questions about their statements would that

Ms McVicker: That would be fine.

Adjudicator: Meet your requirements.

Ms McVicker: Yes.

  1. [29]
    As it transpired those witnesses were available, however the point is that whether they were attending on the phone or in person, Ms McVicker had every right to cross-examine them on the evidence they gave in their affidavits. She was not alerted to this and in any event, they were never called. The Tribunal did not query Ms McVicker later in hearing about whether she still wanted to question them. It is obvious from the transcript that Ms McVicker was confused about the process and no assistance was given to her from the bench.[9]
  2. [30]
    There was further questioning of Ms McVicker by the Tribunal when she sought to provide further evidence of the type she now wishes to have admitted in the appeal.[10] Ms McVicker told the Tribunal that she received the respondents’ documents on ‘last Friday’ which was 7 February (hearing on Thursday13 January) and the documents she wanted to present were in response.[11]  These included photos of the Kaboodle website and printouts. Also emails about the ‘over the top’ handles, which are said to have caused problems. It seems she gathered this evidence earlier in the week and emailed it to the respondents on 12 February. This evidence was rejected because it came in too late after the deadline of 6 February.
  3. [31]
    Against this background the Tribunal was about to hear further from Ms McVicker then there was this exchange:[12]

Adjudicator: Unless there are any objections, I’ll take a statement from Ms Vickers (sic) about the nature of – no, we have – sorry. Do you want to speak to the witnesses, Kubis (sic) and Taffe (sic)?

Ms McVicker: I can proceed without it if it-----

Adjudicator: Right. Because----

Ms McVicker: Its (sic) fine. I don’t want to------

Adjudicator: Otherwise, its (sic) going to be and (sic) adjournment.

  1. [32]
    At this point, Ms McVicker backed away from wanting to question Cubis and Taafle and the hearing progressed with Ms McVicker giving some brief evidence.
  2. [33]
    Mr Tram was then invited to present his case. However, at that point he made a strange preliminary ‘administrative submission’ for leave to make a summary dismissal application upon hearing the applicant’s evidence.[13]
  3. [34]
    The hearing then progressed, and Mr Smith was questioned by Ms McVicker. She was cross-examined by Mr Tram At the end of the cross-examination, during all of which Mr Smith was in the hearing room, he was called to give further evidence by Ms Tran (for Bunnings). At the end of the examination in chief (through a series of leading questions) the Tribunal sought to conclude for the day with the matter part heard.
  4. [35]
    At this point, Ms McVicker queried whether, on the adjourned date, she would be allowed to submit additional evidence. The response was ‘no it is part heard’. She then went on to say:

Ms McVicker: the panel that I wanted to use as a demonstration obviously I couldn’t submit that to anybody else because par – a big part of my claim-----

Adjudicator: Well, no because -----

Ms McVicker: ---is the finish of the product.

Adjudicator: --- the other parties are on the phone. They can’t see the panel and so you can’t demonstrate to them all right? So no----

Ms McVicker: Okay

Adjudicator: -- you can’t bring that, it would be unfair. Okay. That (sic) the order. I’m adjourning it part heard, but thank you parties.

  1. [36]
    The second day of the hearing was largely taken up in discussion, questioning of Ms McVicker and reliance on evidence where the witnesses were not made available for cross-examination, for example Mr Murfit. Questions were put to Ms McVicker about comparing her cabinetry to other brands, the utility of which is difficult to understand. She was in effect cross-examined a second time.
  2. [37]
    Towards the end of the ‘evidence’ Ms McVicker raised the issue again about further evidence. This was in response to the Tribunal’s question of her about whether she had ‘finished on installation and alterations to the kitchen issue’.[14] It was at this point that Ms McVicker told the Tribunal that she had her builder available to give evidence. There was further discussion where the deadline for filing evidence was raised again and then the following:[15]

Ms McVicker: Sorry, I just want to clarify. You don’t want the builder to appear as a witness.

Adjudicator: Ms McVicker. I – there were orders issued.

---------------------------

Adjudicator: All parties had notice of the hearing and they – all parties had an opportunity to present whatever additional information or evidence they wanted to submit. The tribunal is not going to accept any further evidence on the ground that, one, all parties had an opportunity to present their case and two, that it would be a denial of procedural fairness to the respondents to accept at this point intime and (sic) further evidence. So unless you want to say something else then I don’t want to have to repeat it.

Ms McVicker: Can I – yeah. Sorry. It was my understanding that you wanted him to attend. So I arranged for that. Sorry. Apologies. Can I go back to ---

  1. [38]
    I will proceed on the basis that the reference to ‘builder’ is a reference to Mr Tester, whose evidence is part of the fresh evidence sought to be admitted. This evidence is part factual and part expert to the extent that he relies on his experience in coming to his opinion about the quality of the product but importantly the finish. It is not an independent expert report and does not comply with the Expert Evidence Practice Direction 4 of 2009. However it is still relevant to the issues in dispute, particularly the finish, and should have been admitted. Any prejudice to the respondents could have been cured with an adjournment.
  2. [39]
    In considering the admission of the fresh evidence whether it was reasonably available with due diligence, clearly it was.  Would the evidence, if admitted have an important influence on the case, again clearly it would. In particular, the physical cabinetry component showing the finish, and the builder’s evidence may well have assisted Ms McVicker. To a lesser extent the information from the website in documents (a) – (d). It need not be decisive. It is evident from the transcript and some of the exchanges referred to above, Ms McVicker received no help in presenting her case from the Tribunal.
  3. [40]
    The Tribunal has a statutory obligation under s 28 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) to observe the rules of natural justice and to ensure all relevant material is disclosed to the Tribunal. Under s 28(4) the Tribunal may admit into evidence the content of any document despite noncompliance with any time limit. Under s 29 the Tribunal must take reasonable steps to ensure parties understand the practices and procedures. This includes the right to provide opportunities to question (cross-examine) relevant witnesses and proceed with the hearing in a methodical way to avoid confusion and uncertainty about the process. It must ensure, as a matter of procedural fairness, that a party has presented all the evidence that it intends to rely upon.
  4. [41]
    It is readily appreciated that the Tribunal’s work in the minor civil disputes jurisdiction can be onerous.[16] Civil disputes are allocated minimal time and some are complex and time consuming, such as this case. They often require the adjudicator to reserve the decision and more often than not a transcript is not made available. Even so, the parties must still be afforded procedural fairness and unfortunately in this case, despite the Tribunal’s best efforts to deal with the case in a way that was fair, just economical, informal and quick,[17] that has not been achieved.
  5. [42]
    It is not expected that a hearing should be conducted with the formality of a trial in a court, but the sequence of evidence or submission to be given along the lines of a trial is certainly a reasonable, sensible method of conducting a hearing. That is, the applicant give evidence and put in all documents and other evidence to be relied on. Questioning of a witness can be conducted and concluded. Similarly, the respondent gives evidence and documents go in as needed. The production of all documents at the commencement of the hearing is also acceptable, as occurred here. In some situations, due to time constraints, the hearing is inquisitorial so the decision maker can quickly get to the heart of the issues that have to be decided. However, it is still useful to have a clear demarcation of both parties’ cases rather than a situation where there is no order to conduct of the hearing.
  6. [43]
    Both Bunnings and DIY Resolutions oppose the admission of fresh evidence. They essentially rely on the reasons given by the Tribunal for its refusal to admit the evidence. Of course if it is admitted it would be prejudicial to them. They argue Ms McVicker had every opportunity to prepare her case before the hearing and directions were made to ensure this would be achieved. However, this fails to take into account that Ms McVicker is self-represented and clearly unsure of the hearing process as is apparent from the transcript.
  7. [44]
    For the reasons stated the fresh evidence set out in paragraph [13] (a) – (d) and (g) – (h) should be admitted in the appeal. This would of course lead to prejudice to both Bunnings and DIY Resolutions who both should have an opportunity to contest this evidence if they so desire. Ultimately a new hearing is required to ensure fairness to all parties.
  8. [45]
    I would also find that despite the admission of this evidence, which would go to the substantive appeal, Ms McVicker has also been denied procedural fairness in seeking to have the evidence sought to be admitted here, rejected in the hearing below. Even if this was only confined to the cabinetry component she sought to provide to the Tribunal showing the discoloration, the result would be the same. To be clear, even if the evidence was not admitted in the appeal, the conclusion is that Ms McVicker has been denied procedural fairness in the manner in which the hearing was conducted.
  9. [46]
    Finally, an appeal from the minor civil dispute jurisdiction is not an appeal as of right. Section 142(3)(a)(i) of the QCAT Act provides that in respect of a decision in a proceeding for a minor civil dispute an appeal may be made only if the party has obtained the appeal Tribunal’s leave to appeal. Leave to appeal will usually only be granted when there is a reasonable argument that the decision was attended by error, or an appeal is necessary to correct a substantial injustice caused by the error.[18]Here the principal ground of appeal is a denial of procedural fairness which necessarily involves a question of law.
  10. [47]
    I have therefore come to the conclusion that Ms McVicker has been denied procedural fairness in the manner in which the hearing was conducted and her evidence rejected. As this has resulted in a substantial injustice to the applicant, and it involves a question of law, leave to appeal should be granted. The appeal should be allowed with a direction that the matter be remitted to the minor civil disputes tribunal for hearing by a different adjudicator. I would also direct that the evidence already given in the first hearing be the evidence in the new hearing with both parties at liberty to lead further evidence. To facilitate this I will direct the parties be provided with a copy of the transcript.

Footnotes

[1]Reasons [99].

[2]Reasons [102].

[3]Reasons [97].

[4]Reasons [98].

[5][1984] 1 QdR 404.

[6]QCAT Act s 28 & 29.

[7]T10 l10.

[8]T10, L10.

[9]QCAT Act ss 28 & 29.

[10]Paragraph [13] (a) – (d) above.

[11]T13 L25.

[12]T15 L20.

[13]T17 L35 – 45.

[14]T2:43 L 25.

[15]T2:44 L 25.

[16]Huckstep Enterprises Pty Ltd v Harding ATF Blair Harding Trust [2020] QCATA 140, [2] – [4]; also Australian Furniture Relocations Pty Ltd v Eco Builder Pty Ltd [2020] 106 QCATA 92.

[17]QCAT Act s 3.

[18]Terera & Anor v Clifford [2017] QCA 181.

Close

Editorial Notes

  • Published Case Name:

    McVicker v Bunnings Group Ltd & Anor

  • Shortened Case Name:

    McVicker v Bunnings Group Ltd

  • MNC:

    [2021] QCATA 88

  • Court:

    QCATA

  • Judge(s):

    Member Richard Oliver

  • Date:

    09 Jul 2021

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Australian Furniture Relocations Pty Ltd v Eco Builder Pty Ltd [2020] 106 QCATA 92
1 citation
Jump To
Cite 1 - [2020] 106 QCATA 92
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404
1 citation
Jump To
Cite 1 - [1984] 1 Qd R 404
Huckstep Enterprises Pty Ltd t/as Global Coating Solutions v Harding as trustee of the Blair Harding Family Trust [2020] QCATA 140
1 citation
Jump To
Cite 1 - [2020] QCATA 140
Langdale v Danby (1982) 3 All. E.R. 129
1 citation
Jump To
Cite 1 - (1982) 3 All. E.R. 129
Terera v Clifford [2017] QCA 181
2 citations
Jump To
Cite 1 - [2017] QCA 181
Cite 2 - [2017] QCA 181

Cases Citing

Case NameFull CitationFrequency
Hobson v Grant [2025] QCATA 632 citations
Revolve Property v Walsh [2021] QCAT 2562 citations
Tuck v Kanti-Paul [2024] QCATA 572 citations
Willis v Varghese [2025] QCATA 702 citations
1

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