Shepherd v Monsour[2022] QCATA 78

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   By an Application for leave to appeal or appeal filed on 16 March 2021 (the Appeal Application), the Applicant seeks leave to appeal against a decision made by the Queensland Civil and Administrative Tribunal (the Tribunal) on 10 February 2021 (the Decision).^[1]
2. [2]
   The Decision was made in a proceeding commenced by the Respondent to this application by an Application for minor civil dispute – consumer dispute filed on 25 February 2019 (the MCD Application).
3. [3]
   By the MCD Application, the Respondent claimed an amount of $3,500.00 together with payment of the filing fee of $120.50.  The Applicant was the only respondent to the MCD Application.
4. [4]
   The hearing of the MCD Application proceeded on 10 February 2021.
5. [5]
   By the Decision, the Tribunal (constituted by an Adjudicator) made the following orders:

1. Within 30 days the Respondent [who is the Applicant on this application] pay the Applicant [who is the Respondent on this application] $3,120.50 being $3,000 for the claim and $120.50 for the filing fee.

2. Upon payment of the amount of $3,120.50 the Respondent is to make arrangements to collect the inverter from the Applicant’s residence in Brisbane.

The Respondent’s claim in the MCD Application

6. [6]
   The Respondent’s claim arose out of a contract pursuant to which the Applicant supplied and installed a solar PV system at the residence of the Respondent.  The installation work was performed by a subcontractor of the Applicant.  The solar system components comprised, primarily, 16 solar panels and a Fronius brand 5kW inverter (the Inverter).
7. [7]
   The Respondent’s claim was in the following terms:

I ordered a Hybrid Inverter and paid for a Hybrid Inverter.

After it was installed I discovered that the inverter is not a Hybrid Inverter as ordered.

I spoke with Nuway Solar about this and requested a refund of the additional costs that I paid for the hybird [sic] inverter, however they refused.

Emails for the original agreement are attached.

The Decision

8. [8]
   The Adjudicator’s Reasons, as recorded in the Transcript of the hearing, relevantly stated:^[2]

ADJUDICATOR …:  … So initially, Dr Monsour had requested a 10‑kilowatt hybrid inverter, but it was Mr Shepherd's recommendation that he get two five-kilowatt inverters. It seems, for some reason, that Mr Shepherd had decided that what would be the best is if Mr Monsour- Dr Monsour just got a new five-kilowatt inverter and then over time, when he decided what type of batteries he wanted, get another inverter, replacing the existing inverter, which was only two years old and had a five-year warranty.

It seems to me that that would be an non-sensical [sic] way to install an inverter, and Dr Monsour says that at no time did he ever agree to any inverter that was not a hybrid inverter, because the whole point of him upgrading the system was so that he could get batteries and take advantage of the government grants. When he tried - when he got someone else to look at the system, he found out also that the inverter he had been given was a single-phase inverter which was not compatible with three-phase power, and therefore, none of the power from the system could be exported back to the grid. Is that all correct, Dr Monsour?

DR MONSOUR: Exactly, 100 per cent.

ADJUDICATOR …: So what he did was he then tried to get a refund and also got the system completely changed by another company. He tried to return the inverter to Mr Shepherd, who would not accept it, and eventually engaged another company who did the work for - and replaced the whole system, and this was done only a couple of months after Mr Shepherd had done the work and also told him that the inverters were not compatible with the batteries, and clearly they were. Clearly, Dr Monsour disclosed the reason he was buying the inverter, and the inverter that he was sold by Mr Shepherd was not fit for the purpose that he required it for, which would be a breach of the Australian Consumer Law, entitling Dr Monsour to a refund.

DR MONSOUR: Yes. Sorry.

ADJUDICATOR …: Yes? What were you saying?

DR MONSOUR: Section 52 of the Trade Practices Act, misleading and false representation - - -

ADJUDICATOR …: Sorry, the Trade Practices Act has been repealed for quite some years now. We now use the Australian Consumer Law. But anyway, it is fine. The goods were not fit for purpose and in breach of the Australian Consumer Law. So I accept that Dr Monsour is entitled to a refund. He does not have an exact invoice, but I have asked Mr Shepherd during the time he was on the phone how much that inverter would be worth, and he agreed $3000 was an accurate figure. So on that basis, Dr Monsour had also claimed, I think, for $500 for rectification of work. There is no receipt for that rectification, so I am not inclined to allow that sum of $500. However, I will allow the filing fee of $120.50.

I would just say in respect of Mr Shepherd, although I found that he, well, had difficulty in remembering what had happened, he did not provide any evidence of the conversations or any evidence from his installer how that installation came to take place, and he tried to a [sic] abrogate all responsibility to the installer, which he is not entitled to do because, as he accepted, the contract was between him and Dr Monsour.

So in respect of the evidence, where the evidence that Dr Monsour and Mr Shepherd contradict each other, I preferred the evidence of Dr Monsour. There were a couple of occasions when Mr Shepherd would say something, Dr Monsour would say something else, and then Mr Shepherd would say, "Yes, Dr Monsour is right". So it is clear that he did not have a great recollection. So I will make an order, then, that within 30 days, the respondent pay the applicant $3120.50, being $3000 for the inverter and $120.50 for the filing fee. The other order will be, Dr Monsour, that on receipt of the funds, you will send the inverter back to Mr Shepherd.

9. [9]
   In summary, the Adjudicator found that the solar system supplied by, and installed on behalf of, the Applicant was not reasonably fit for the purpose made known by the Respondent and, consequently, did not comply with s 61 of the Australian Consumer Law.

Leave to appeal is required

10. [10]
    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.^[3]
11. [11]
    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)

12. [12]
    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)

The Grounds of Appeal

13. [13]
    The Grounds of Appeal set out in the Appeal Application are stated as follows:

I had not prepared my case for defending the claim because I was under the belief that QCAT did not conduct a Court case. That it was purely an attemp [sic] to mediate and I had no intention to do so. 

During the hearing, the adjudicator asked me a question and as I began to answer there was a loud click and the phone went dead. In case she could hear me I continued answering the question. When I finished, there was another click and the line was re‑opened. The adjudicator said she did not hear me.

Please see attached notes pertaining to above. **

** My wife was 2 metres from the phone & she heard the clicks. The adjudicator admitted she did not hear my answer but did not give me the opportunity to repeat my answer.

I believe the hearing was biased and unjust toward [sic] me.

14. [14]
    Endeavouring to give the stated Grounds of Appeal some legal framework, I consider that the complaints can be characterised as involving:

    1. (a)
       an alleged denial of natural justice by reason of:

       1. the hearing proceeding without the Applicant having properly prepared on the basis that the Applicant believed he was appearing at a mediation (Ground 1);
       2. the Applicant was not given an opportunity to repeat a submission made during the time that the telephone line between the Tribunal and the parties had been disconnected (Ground 2);
    2. (b)
       alleged bias on the part of the Adjudicator (Ground 3).

Further evidence

15. [15]
    The Applicant seeks to put into evidence three documents in relation to the solar system being:^[6]

    1. (a)
       the contract dated 3 December 2018 for the supply and installation of the solar system (the Contract);
    2. (b)
       a Certificate of Compliance and Safety (the Compliance Certificate);
    3. (c)
       a Solar PV STC Assignment Form (the Assignment Form).
16. [16]
    In cases where, as here, leave to appeal under s 143(3)(a)(i) is required, the issue of whether leave to adduce further evidence should be granted requires, in my view, consideration at two stages.  First, whether further evidence may be adduced in respect of the application for leave to appeal.  Second, if leave to appeal is granted, whether the evidence may be relied upon in deciding the appeal.
17. [17]
    As to the first issue, it is settled law that the Appeal Tribunal does have a discretion to adduce further evidence on an application for leave to appeal.
18. [18]
    In Underwood v Queensland Department of Communities (State of Queensland),^[7] it was said:^[8]

[38]  The Appeal Tribunal, in deciding whether to receive the applicant’s further evidence, applied part of the definition of “reopening ground” in s 137 of the QCAT Act. Under that section and s 138 a party is given a right to apply to QCAT for a proceeding to be reopened if a “reopening ground exists”. A reopening ground relevantly exists where:

“…the party would suffer a substantial injustice if the proceeding was not reopened because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard and decided”.

[39]  Under s 139, where a reopening ground exists and where that ground could be “effectively or conveniently dealt with by reopening the proceeding” the Tribunal may grant the application to reopen. Sections 136 to 141 inclusive, however, do not apply to appeals. Section 143 of the QCAT Act which provides for applications for leave to appeal is silent as to the Appeal Tribunal’s ability to receive additional evidence. Section 147, which relates to appeals to the Appeal Tribunal on a question of fact or on a question of mixed fact and law, provides that “The appeal must be decided by way of rehearing, with or without the hearing of additional evidence as decided by the appeal tribunal.” The test contained in the definition “reopening ground” in s 137, as a general proposition, is a useful enough guide for the Appeal Tribunal to apply on application for leave, but it would not be correct in law for the Tribunal to fetter its discretion by rigidly applying a test which expressly applies to proceedings at first instance but not to appeals.

(citation omitted)

19. [19]
    As to the second issue, the QCAT Act distinguishes between appeals on a question of law only (see s 146) and appeals on a question of fact or mixed law and fact (see s 147).  Under s 147, the appeal must be decided by way of rehearing, with or without the hearing of additional evidence as decided by the Appeal Tribunal (see s 147(2)).  However, in an appeal under s 146, further evidence is not admissible.^[9]  In my view, this may raise a potential anomaly in a case where leave is granted to adduce further evidence on the application for leave to appeal but the Appeal Tribunal is precluded from considering that evidence on an appeal under s 146 (if leave to appeal is granted).
20. [20]
    The Tribunal’s power to allow fresh evidence (on appeal) is not a mechanism by which parties can repair the holes in their original case.^[10]
21. [21]
    I will address below the question of whether leave to adduce the further evidence should be granted.

Should leave to appeal be granted?

22. [22]
    Given that Ground 3 raises an allegation of bias, I consider that it is appropriate to deal with this Ground first.^[11]

Ground 3

23. [23]
    The Applicant has failed to identify whether he is alleging actual bias or apprehended (or “ostensible”) bias and, further, the Applicant has not articulated the basis upon which he makes the allegation of bias (or that the Adjudicator acted unjustly).
24. [24]
    Allegations of bias, whether actual or ostensible, constitute a challenge to the very validity of a judicial decision; such allegations involve an assertion that the administration of justice has failed.^[12]
25. [25]
    Bias connotes the absence of impartiality; it may not be an adequate term to cover all cases of the absence of independence.^[13]
26. [26]
    A convenient frame of reference for characterising cases involving disqualification by reason of the appearance of bias is by reference to:  interest; conduct; association; and extraneous information.^[14]  In the present case, I consider that the only potential category is that of conduct.
27. [27]
    In the context of actual bias, such a finding is a grave matter; an allegation of actual bias must be distinctly made and clearly proved; such a finding should not be made lightly; and cogent evidence is required.^[15]
28. [28]
    Where there is an allegation of actual bias by prejudging the matter, the state of mind described must be one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.^[16]
29. [29]
    On a perusal of the Transcript, I can find no basis for even a faintly arguable case of actual bias on the part of the Adjudicator.
30. [30]
    In the context of apprehended bias, the High Court has said:^[17]

Where, as here, a question arises as to the independence or impartiality of a judge, the applicable principles are well established, and they were not in dispute. The apprehension of bias principle is that “a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”. The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial – that it is conducted by an independent and impartial tribunal. Its application requires two steps: first, “it requires the identification of what it is said might lead a judge… to decide a case other than on its legal and factual merits”; and, second, there must be articulated a “logical connection” between that matter and the feared departure from the judge deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.

(citations omitted)

31. [31]
    The Applicant has not identified the basis upon which it can be concluded that the Adjudicator decided the case other than on its legal and factual merits (much less identifying the requisite “logical connection” between any such matter and the asserted departure from the Adjudicator deciding the case on its merits.).
32. [32]
    It may be that the Applicant relies on the matters the subject of Grounds 1 and 2 in order to found the allegation of bias.  If so, I consider that those grounds (which are addressed below) do not support any finding of a reasonable apprehension of bias on the part of the Adjudicator.  I consider that those matters should properly be considered in the context of whether the Applicant was denied natural justice in the course of the conduct of the hearing.
33. [33]
    In my view, in relation to Ground 3, the Applicant has not established that 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 that Ground 3 raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage.  I refuse leave to appeal in relation to Ground 3.
34. [34]
    I now turn to Grounds 1 and 2.

Ground 1

35. [35]
    This Ground raises a contention that the hearing proceeded without the Applicant having properly prepared because the Applicant believed he was appearing at a mediation.
36. [36]
    There is some support for the Applicant’s contention that he believed that the hearing was a mediation.  At one point during the hearing the Applicant said to the Adjudicator:^[18]

“Are you trying to mediate or are you trying to back me into a corner?”

37. [37]
    In his Written Submissions, the Applicant contends that he did not submit any evidence for the hearing because he had been wrongly advised that the second hearing of the case was “simply a final attempt to achieve a mediation between both parties”. However, the Applicant has not provided any details of the circumstances in which he was so advised, including any documentation evidencing such advice.  Further, the Applicant sought an adjournment of the hearing by an Application for miscellaneous matters dated 5 February 2021.  By that Application, the Applicant sought to “postpone the hearing to a later date”.  Whilst the Applicant’s reference to the “hearing” is not necessarily inconsistent with a belief that the hearing was in fact a mediation, it reinforces the need for the Applicant to have identified the basis for his stated belief that he would be appearing at a mediation.
38. [38]
    In any event, in response to the Applicant’s reference to “mediate” as noted above, the Adjudicator made it clear that the hearing was not a mediation, rather it was an “actual hearing”.^[19]
39. [39]
    The Applicant did not seek an adjournment on the basis that he had not prepared a case in response because he believed that the hearing was a mediation.  The Adjudicator proceeded to question both parties in relation to the respective version of events relied upon by each party.
40. [40]
    Further, during the course of the hearing, the Adjudicator pointed out that the only document that the Applicant had filed in the Tribunal was the Application by which the Applicant had sought an adjournment.  The Adjudicator asked whether it was a case that the Applicant had otherwise not filed a single document with the Tribunal.^[20]
41. [41]
    The Applicant’s response was as follows:^[21]

MR SHEPHERD: Well, I guess so. You are looking at what I filed. I mean, when I filed it, it was quite a long time ago, wasn't it? How am I supposed to remember what I filed and what I didn't file? I am - I am nearly 82 years of age, young lady. You don't have the best memory when you get to my age, and look, I really have to go. If you decide that I have done the wrong thing by Dr Monsour, that is your 15 judgement. I said - I - I - I have a clear conscience. I did absolutely nothing whatsoever to try and con the man or do him a disservice, and I am very sorry it has got to be so, but I really do have to go now.

42. [42]
    In the circumstances set out above, I consider that there is no reasonable argument that the Adjudicator denied the Applicant natural justice by continuing to hear and determine the matter.
43. [43]
    I will now address the further evidence sought to be relied upon by the Applicant.
44. [44]
    In this context, the Adjudicator made a finding that the Respondent disclosed the reason he was buying the Inverter, namely that it would be able to be used with a battery.  Such an inverter was described as a “hybrid inverter”.  There was no dispute that the Inverter provided was not a hybrid inverter and was not compatible with a battery.  At the core of the case was whether the Respondent had made known that the Inverter was to perform that function.  The Adjudicator was satisfied that the Respondent did make that known.  The Respondent denied the proposition that the Applicant told him that it was best to get a 5kW inverter which was not a hybrid inverter and wait until more batteries came on to the market and then replace the existing (original) inverter.^[22]  This issue turned on a finding of credit as between the Respondent and the Applicant.  The Adjudicator found that the Applicant “did not have a great recollection” of events.^[23]  There is no direct challenge to that finding.
45. [45]
    With respect to the three documents the Applicant seeks to adduce by way of further evidence, it is evident that each of the documents would have been available to the Applicant at the time of the hearing.  In any event, I have perused the documents and I consider that none provides a reasonably arguable basis for overturning the Adjudicator’s findings.

The Contract

46. [46]
    In the Contract (which comprised a signed Tax Invoice), the Inverter was described as a “Fronius International Vers. with Datamanager”.  The Contract also stated that “the Fronius Inverter will be set to zero-export”.  In my view, there is nothing on the face of the Contract which would bring to the attention of the Respondent that the inverter which was to be supplied would not be a hybrid inverter or would not be compatible with a battery.

The Compliance Certificate

47. [47]
    The Compliance Certificate concerned the certification of “Testing and Compliance” and “Testing and Safety” in accordance with ss 227 and 26 respectively of the Electrical Safety Regulation 2013.  Again, there is nothing on the face of this document that would indicate to the Respondent that the Inverter was not a hybrid inverter or would not be compatible with a battery.

The Assignment Form

48. [48]
    One function of the Assignment Form was to effect an assignment of the Respondent’s rights to create “STC’s” to “REC Services Pty Ltd”.
49. [49]
    By the Assignment Form, the installer, Mr McDonald, confirmed that the stated local, State (or Territory) government requirements had been met in relation to the system that was installed.  It contains “System Details” including a reference to the Inverter Manufacturer, the Inverter Series and the Inverter Model Number. 
50. [50]
    The Assignment Form purports to be signed by the Respondent and witnessed by the installer, Mr McDonald.  However, the Respondent, in his Submissions dated 21 October 2021 and received by the Tribunal on 2 November 2021, states that this was the first time he had seen that form, that the signature on the Form was not his signature, and that as at the date of the document the Respondent was in Maryborough.  In comparing the signature on the Assignment Form with the Respondent’s signature on the Contract (which the Respondent does not dispute), it is obvious that those signatures are substantially different and there would be no proper basis for concluding that the Assignment Form was in fact signed by the Respondent, at least in the absence of evidence from Mr McDonald.  No such evidence has been sought to be adduced by the Applicant.  In these circumstances, no weight could be given to the document.
51. [51]
    Further, while the Assignment Form refers to the system being connected to an electricity grid “without battery storage”, that statement appears to reflect the fact that no battery was installed at the time of installation of the panels and the Inverter.  I consider that there is nothing on the face of the Assignment Form which would bring to the attention of the Respondent that the Inverter (which had then been installed) was not a hybrid inverter or that the Inverter was not compatible with a battery.
52. [52]
    For the reasons set out above at paragraphs [38] to [51], I refuse leave to the Applicant to adduce the further evidence.
53. [53]
    In relation to Ground 1, I consider that the Applicant has not established that 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 that Ground 1 raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage.  I refuse leave to appeal in relation to Ground 1.
54. [54]
    I now turn to Ground 2.

Ground 2

55. [55]
    Ground 2 raises a contention that the Applicant was not given an opportunity to repeat a submission made during the time that the telephone line between the Tribunal and the parties had been disconnected.
56. [56]
    A perusal of the Transcript indicates that there was an occasion during the hearing that the telephone line between the Tribunal and the parties was disconnected.^[24]
57. [57]
    I accept that immediately after the telephone connection was re-established, the Adjudicator did not invite the Applicant to repeat what he had just said (and the Adjudicator proceeded to raise with the Respondent the substance of the Applicant’s version of events^[25]).
58. [58]
    However, the Applicant does not identify:

    1. (a)
       the approximate period of the disconnection; or
    2. (b)
       the content or general content of the statements he made during that period.
59. [59]
    Further, in my view, the Applicant was subsequently given a reasonable opportunity to state his case (and to repeat his earlier statement, if in fact it was not subsequently restated by the Applicant in the submissions he did make).^[26]
60. [60]
    In circumstances where the Applicant has not established that he was denied a reasonable opportunity to repeat (and did not, in fact, repeat the substance of) whatever statement he made during the period of the telephone disconnection, I am of the view that the Applicant has failed to demonstrate a reasonable argument that he was denied natural justice in the sense of being denied a reasonable opportunity to be heard.
61. [61]
    In relation to Ground 2, I consider that the Applicant has not established that 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 that Ground 2 raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage.  I refuse leave to appeal in relation to Ground 2.

Orders

62. [62]
    For the Reasons set out above, I consider that:

    1. (a)
       the Application for leave to adduce further evidence should be refused;
    2. (b)
       leave to appeal should be refused.

I order accordingly.