Milne v DMV Electrical[2022] QCATA 68

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   By an Application for leave to appeal or appeal filed on 13 November 2020 (the Appeal Application), the Applicant seeks leave to appeal against a decision made by the Queensland Civil and Administrative Tribunal (the Tribunal) on 28 October 2021 (the Decision).^[1]
2. [2]
   The Decision was made in a proceeding which was commenced by the Applicant by an Application for Minor Civil Dispute – consumer dispute (the MCD Application) filed on 14 October 2019.
3. [3]
   By the MCD Application, the Applicant claimed an amount of $2,100.00 together with payment of the filing fee of $345.80. The Respondent was the only respondent to the MCD Application.  At the hearing, the Applicant increased the amount of his primary claim to $3,000.00 but reduced the claim for the filing fee to $123.20.^[2]
4. [4]
   The hearing of the MCD Application proceeded on 16 October 2020.
5. [5]
   By the Decision, the Tribunal (constituted by an Adjudicator) dismissed the MCD Application.

The Applicant’s claim

6. [6]
   The Applicant’s claim arose out of electrical work performed by the Respondent, an electrical contractor, on a new shed at the Applicant’s property.
7. [7]
   The Applicant alleged poor or dangerous workmanship on the part of the Respondent.  Ultimately, the Applicant claimed a full refund of the money ($3,000.00) paid to the Respondent for the electrical work.
8. [8]
   There was no dispute that:

   1. (a)
      the Respondent provided a quote dated 6 March 2019 for electrical work in the amount of $2,992.00 (including GST);
   2. (b)
      the Respondent issued a tax invoice dated 28 March 2019, for the work performed, in the total amount of $3,000.00 (GST inclusive);
   3. (c)
      the amount of the invoice was paid in full.
9. [9]
   In the MCD Application, the Applicant identified the following issues with the Respondent’s work (I will apply the Applicant’s numbering below in discussing each of the Items raised):

1. 1.Installed four lights on ground floor instead of six all wired from one circuit instead of 3 banks of 2 lights on three circuits as per plan.

1. 2.Requested wiring for power point be placed inside top hat battens told could not be done, rectified by myself.

1. 3.Two styles of power points were to be used these were laid out and labeled, all mixed between the two floors rectified by owner, power points all at different heights

1. 4.Then told swimming pool wiring would not be completed as trips circuit breaker told cause was old and requires renewal wiring replace by myself- wiring sample kept, the wiring was still quite serviceable the real cause of circuit breaker tripping was screw through cable, have kept wiring as proof (wrongly diagnosed).

1. 5.No compressor power point fitted as per plan they return to fit same but did not fit control switch at fuse panel as per plan, have since discovered power point is only 10amp should be 15amp.

1. 6.Light fitted to stairway starts to flicker, suspect bulb went to change same screw missing from lens holder other two very loose, then discovered lends broken, wiring grommet missing found on floor, worst of all bulb holder grub screw to secure negative wires missing, wires just shoved into bulb holder, replace complete light myself (Have kept light) other lights crooked see photo attachment No.3

1. 7.Fuse panel fitted is too small as no provision for future Expansion – new patio requiring circuit breaker for power and light as per plan, No [sic] fit for purpose, one excuse no room for bigger panel. Proper size measures 259.5mm, fuse panel width 320mm, plenty of space Ref attached No,4 and No.5

1. 8.Light switched for stair way protrudes excessively into stairway, walk into it. Relocated by myself

1. 9.Self drilling screw to secure wiring saddles protrude right through outside sheet. Photograph attached. This is a new building) Refer attachment No.6

1. 10.Power point mounting boxes not secured threw [sic] manufacturers holes and then plugged – screws then into pillar covered by silastic extremely poor work.

1. 11.New light for toilet not wired through manufactures [sic] hole – rough hole cut threw side of new light, have repaired light and wired properly refer No.8.

10. [10]
    By further material dated 22 July 2020 (received by the Tribunal on 27 July 2020), the Applicant identified further issues by providing photographs of each item with the following handwritten notes (I will follow on the previous numbering to identify each further Item):

    1. (a)
       Item 12: Poor wiring connection
    2. (b)
       Item 13: Power point box loose

Power point box attached with counter sunk screws

Manufacturers holes not used

3. (c)
   Item 14: Power box loose can be moved with little pressure eg pushing home plug
4. (d)
   Item 15: Earth wire trapped in light fitting chassis
5. (e)
   Item 16: 1) incorrect screws

2) wrong location

3) only 1½ thread penetration into steel pillars

The Decision

11. [11]
    In dismissing the MCD Application, the Adjudicator’s reasons provided, relevantly:^[3]

I find that although Mr Milne was unhappy with the work and I believe his expectations were that work would be more precise and tidier and to a very high standard, I’m unable to conclude, based on the evidence that I have, that the work was defective. I really need a report or some evidence from someone independent, because the two gentlemen at the hearing just had differing views of things. I’m not able to conclude from the photographs taken that the work was defective.

I am able to conclude that it was perhaps untidy. However, Mr Parkinson challenged that some of the photographs were taken after Mr Milne had interfered with the products, for example, attachment number 8, the new light hole cut through side panel. That has been - some cabling and conduit has been removed in order to take that photograph, so it’s not a photo of the work as done by Mr Parkinson for me to draw a conclusion from it.

In the absence of a report from an electrician or a statement or some evidence that the work is defective, I’m not able to conclude that it is defective and, therefore, I’m not able to order a refund to Mr Milne in relation to the work undertaken. It seems to me that this is a case of customer dissatisfaction and I’m not saying that that’s unreasonable of Mr Milne. He had expectations and they weren’t met.

He was unhappy with the response from the contractor when he asked for things to be rectified, but being unhappy from a customer service perspective and untidy work, in my opinion, doesn’t lead me to a conclusion that work was defective within the meaning of the Australian consumer laws and specifically with respect to section [sic] 60 and 61 as they relate to services. So for all of those reasons, I am dismissing the application. Mr Milne, that means you haven’t been successful today.

It comes down to a matter of evidence and I would’ve needed to see electrical - a qualified person giving evidence that the works were defective and in the absence of that and having listened to the evidence and seeing the photographs, there’s just not enough evidence for me to determine otherwise today. So the application is dismissed.

The Grounds of Appeal

12. [12]
    The Grounds of Appeal set out in the Appeal Application are as follows:

1) Adjudicator in her opening statement said she had not read the application

2) During the hearing [sic, of] the case rather than going through application in a logical manner jamp [sic] from one item to something else, pages away back and forth all over the place, some items never discussed

3) Despite actual items/photos some were never examined by the tribunal

4) Respondent continually lied despite physical and photographic evidence

Respondent’s response to the Appeal Application

13. [13]
    By a one page document received by the Tribunal on 4 August 2021 (in response to the Appeal Application), the Respondent stated, relevantly (I exclude any submissions in relation to the mediation between the parties):

A In our opinion the adjudicator was thorough and patient.

B The case was dealt with in an orderly manner.

C Photos supplied by the applicant were not of work that DMV Electrical had performed. Mr Milne has supplied photos of work he had rectified himself. Mr Milne has removed a number of the items we installed.

According to the Electrical safety office only a qualified electrician can perform any type of electrical installation. Mr Milne is not an electrician, so therefore is not aware of the AS3000 rulings and standards in regards to electrical installations and safety.

F … The only dangerous work performed were [sic] done by Mr Milne himself, when he chose to rectify electrical installations done by DMV Electrical.

Applicant’s reply to the Respondent’s response

14. [14]
    The Applicant filed an Application for miscellaneous matters which annexed written submissions.  These submissions, which are to be treated as submissions in the Appeal Application, stated, relevantly (I again exclude any submissions in relation to the mediation):

1. A.The adjudicator did not discuss or examine many of the photographs or physical evidence (parts etc) hence our appeal.

At the start of the proceedings the adjudicator stated she had “not” read the application prior to the hearing

1. B.Strongly disagree, adjudicator flipped from page to page rather than go through the case in a logical manner. As our claim was submitted many items not discussed

1. C.This another down right lie all poor dangerous work. Photographed was done by DMV Electical [sic]. The photos/parts are “ALL” his poor work, also no items were removed (only his rubbish not cleaned from the site which any professional person would do). “NO” rectification work was commenced until DMV Electrical refused to return to the site and discuss or rectify severly [sic] poor work. His parting comment on the phone was “Nay Buddy I am finished at your place and I got my money”

The statement that dangerous work was performed by me (Cliff Milne) please be informed that DMV electrical never returned to site before/during or after work was done. Another untrue statement regarding licencing here is a prime example of the systems failure when a supposed tradesman turning out this standard of work.

There are many job/workers wiring buildings, motor homes, caravans, demountable, signs etc who do not have or require licensing.

As a qualified motor vehicle technician I work with voltages far higher than 240 volt on a daily base.

All electrical parts can be purchased across the counter from retailer/wholesalers even bunnings with no licence required.

This paragraph is a total distraction or in Qcat correspondence language “Ambushed”. The question/claim is not about who performed the rectification work, but why the work was bad/dangerous that it required rectification in the first place. “That’s what this claim is about”

1. D.Mediation was very professionally handled by Qcat, however the respondents attitude demeanor [sic] left a lot to be desired – use of a mobile phone. When all parties specifically asked not to do so by the mediator at the start of mediation.

1. E.…

1. F.Regarding AS3000 standard it has many sections Residencial, [sic] industrial, commercial etc. However throughout the document some 800 pages long there are statements about “All work must be performed in accordance with recognized electrical/engineering practices or words to that effect.

Leave to appeal

15. [15]
    An appeal against a decision by the Tribunal in a proceeding for a minor civil dispute may be made only if the party has obtained the Appeal Tribunal’s leave to appeal (s 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)) (the QCAT Act).
16. [16]
    As to the Tribunal’s approach to an application for such leave, I respectfully adopt the following observations of Judicial Member DJ McGill SC:^[4]

… As a general proposition, when leave to appeal to the Appeal Tribunal is required, it will be granted only where there is a reasonable argument that the decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error, or where the appeal raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage.  In deciding whether grounds for leave to appeal have been shown, it is relevant to consider that the proceeding was a minor civil dispute, and the obligation on the Tribunal was to make orders it considered to be fair and equitable to the parties to the proceeding in order to resolve the dispute: the QCAT Act s 13(1). The Tribunal was also required to comply with the QCAT Act s 28 and s 29.

(citation omitted)

17. [17]
    Further, as was said by Justice Daubney, President, in Berry v Treasure & Anor:^[5]

There is no automatic right of appeal against minor civil dispute decisions. I respectfully adopt and endorse the following observations by the former President, Justice Alan Wilson, in Durrand v Karaolis:

The Queensland Parliament has made it clear, in the QCAT Act, that so far as possible minor civil disputes of this kind are to be resolved by a simple procedure which is speedy, inexpensive and final. That conclusion is reinforced by the fact that before a party can appeal a decision in this jurisdiction it must obtain leave from the Appeal Tribunal … In other words, there is not an automatic right to appeal these decisions; rather, an applicant must first establish that it has a right to a grant of leave.

(citation omitted)

Should leave to appeal be granted?

Ground 1

18. [18]
    The Applicant contends that the Adjudicator in her opening statement said she had not read the “application”.  In my view, the Applicant has not demonstrated any arguable error in this regard.
19. [19]
    First, this contention is not borne out by the Transcript.  The Adjudicator said the following shortly after the commencement of the hearing:^[6]

Right. Okay. And, I mean, the beauty of when people send documents in, I’ve had a chance to look at them and read them. So I’ll just hear from Mr Milne first and then we’ll speak to you, Mr Parkinson. I mean, Mr Milne, I think your allegation is the works were either defective or illegal or just simply not satisfactory. You obtained a quote first.

20. [20]
    The Adjudicator’s observations made to, and her questioning of, the Applicant immediately before and after the above comment, demonstrate that the Adjudicator was conversant with the MCD Application and the Applicant’s material.
21. [21]
    Second, even if the Adjudicator had not read the application prior to the hearing, this of itself would not amount to an appellable error.  In my view, it would only amount to such an error if the Adjudicator had decided the matter without regard to the matters raised by the MCD Application.  In my view, this was not the case.

Ground 2

22. [22]
    This ground appears to comprise two elements, first, a complaint about the manner in which the Adjudicator conducted the hearing, specifically by not dealing with the individual complaints in a logical or sequential manner and, second, the alleged failure to discuss some items raised by the Applicant.  I consider that the second aspect of this ground can conveniently be dealt with in conjunction with Ground 3.
23. [23]
    Section 28 of the QCAT Act provides:

3. (1)
   The procedure for a proceeding is at the discretion of the tribunal, subject to this Act, an enabling Act and the rules.

3. (2)
   In all proceedings, the tribunal must act fairly and according to the substantial merits of the case.

3. (3)
   In conducting a proceeding, the tribunal —

1. (a)
   must observe the rules of natural justice; and

2. (b)
   is not bound by the rules of evidence, or any practices or procedures applying to courts of record, other than to the extent the tribunal adopts the rules, practices or procedures; and

3. (c)
   may inform itself in any way it considers appropriate; and

4. (d)
   must act with as little formality and technicality and with as much speed as the requirements of this Act, an enabling Act or the rules and a proper consideration of the matters before the tribunal permit; and

5. (e)
   must ensure, 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.

3. (4)
   Without limiting subsection (3)(b), the tribunal may admit into evidence the contents of any document despite the noncompliance with any time limit or other requirement under this Act, an enabling Act or the rules relating to the document or the service of it.

24. [24]
    I accept that a number of the items raised by the Applicant were not dealt with in the same order as they appeared in the Applicant’s material.  However, the addressing of some of the items in a different order from that submitted by the Applicant does not, in my view, provide any basis for a conclusion that the Applicant was not afforded natural justice, including being given a reasonable opportunity to be heard.  The Transcript reveals not only that the Applicant made various submissions in relation to the items the subject of discussion between the Adjudicator and the parties, but that the Adjudicator also gave the Applicant two opportunities to say anything further in relation to his case.
25. [25]
    The Adjudicator said:^[7]

All right. What else did you want to add, Mr Milne, in relation to your case? What else did you want to tell me?

26. [26]
    The Adjudicator later said:^[8]

All right. Sorry, Mr Milne. I interrupted you asking extra questions. What else did you want to say in relation to your case before I make my decision?

27. [27]
    In my view, the Applicant has not made out any arguable error in this regard.

Ground 3

28. [28]
    This ground raises a complaint that some of the items and photos submitted by the Applicant were never examined by the Adjudicator.  The second matter noted in relation to Ground 2 above appears to be encompassed by this ground.
29. [29]
    The Applicant has not identified the specific items or photographs that he contends were not considered by the Adjudicator.
30. [30]
    On my perusal of the material and the Transcript, I consider that the Adjudicator addressed with the parties the following items raised by the Applicant: Item 1;^[9] Item 3;^[10] Item 4;^[11] Item 5;^[12] Item 6;^[13] Item 7;^[14] Item 9;^[15] Item 10;^[16] Item 11;^[17] Item 12;^[18] Item 13;^[19] Item 14;^[20] Item 15;^[21] and Item 16.^[22]
31. [31]
    The only items I cannot find an express reference to in the course of the hearing are Items 2 and 8.  Each of these items was contested by the Respondent.^[23]  As noted above, the Applicant was provided with two opportunities to make any further submissions in support of his case.  I consider that the Applicant was not denied a reasonable opportunity to present his case in relation to Items 2 and 8.  Further, in light of the reasons given by the Adjudicator, I consider that there is no realistic prospect that the canvassing of the two items in the course of the hearing could have led to a different outcome.
32. [32]
    I also note that each of the alleged issues was rectified or relocated by the Applicant personally.^[24]  There is no evidence that there was any cost to the Applicant in doing so.  Given this, I am of the view that even if those items had been accepted by the Adjudicator as evidencing a failure to comply with the Australian Consumer Law, there would not have been a proper basis for awarding the Applicant some monetary compensation in relation to Items 2 and 8. 
33. [33]
    In my view, in relation to Ground 3, the Applicant has not established that the Decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error.

Ground 4

34. [34]
    The contention that the Respondent continually “lied” despite physical and photographic evidence faces two difficulties.
35. [35]
    First, the contention raises a question of fact, one involving an issue of credit.
36. [36]
    In relation to interfering with findings of fact on appeal, it was said by the High Court in Robinson Helicopter Company Inc v McDermott:^[25]

But a court of appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by “incontrovertible facts or uncontested testimony”, or they are “glaringly improbable” or “contrary to compelling inferences”.

37. [37]
    This is a high bar to clear.^[26]
38. [38]
    In her Reasons, the Adjudicator said:^[27]

I find that although Mr Milne was unhappy with the work and I believe his expectations were that work would be more precise and tidier and to a very high standard, I’m unable to conclude, based on the evidence that I have, that the work was defective. I really need a report or some evidence from someone independent, because the two gentlemen at the hearing just had differing views of things. I’m not able to conclude from the photographs taken that the work was defective.

39. [39]
    The Adjudicator concluded that she could not be satisfied that the work was defective based on the photographs before her.
40. [40]
    In my view, having considered the material before the Adjudicator and the Transcript of the hearing, I cannot be satisfied that, applying the principle in McDermott, there is a proper basis for overturning any of the findings of the Adjudicator, much less justifying a finding that Mr Parkinson of the Respondent “lied”.  Given that the Adjudicator was faced with the competing positions between the Applicant and Mr Parkinson (a licensed electrician), and in the absence of any expert evidence from an independent electrician, I consider that the Adjudicator’s conclusion is unassailable.

Conclusion

41. [41]
    In my view, the Applicant has failed to establish that there is either a reasonable argument that the Decision was attended by error and that an appeal is necessary to correct a substantial injustice caused by that error, or that the appeal raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage.  I consider that leave to appeal should be refused.

Orders

42. [42]
    For the Reasons set out above, leave to appeal is refused.