Pulitano v Murtas Holdings Pty Ltd t/as DMM Mobile Mechanic
[2023] QCATA 58
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- Pulitano v Murtas Holdings Pty Ltd t/as DMM Mobile Mechanic[2023] QCATA 58
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Pulitano v Murtas Holdings Pty Ltd t/as DMM Mobile Mechanic[2023] QCATA 58
Pulitano v Murtas Holdings Pty Ltd t/as DMM Mobile Mechanic[2023] QCATA 58
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Pulitano v Murtas Holdings Pty Ltd t/as DMM Mobile Mechanic [2023] QCATA 58 |
PARTIES: | filip pulitano (appellant) v Murtas holdings pty lte t/as dmm mobile mechanic (respondent) |
APPLICATION NO/S: | APL085-22 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 18 May 2023 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Richard Oliver |
ORDERS: |
|
| APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – FRESH EVIDENCE – where parties contracted to repair a classic vehicle – where terms of the contract were open ended as to the work to be done – where work done and charged for – where dispute as to the work done – where work outsourced – whether the contract contemplated outsourcing the mechanical work – whether the appellant’s contentions about the repair work not supported by probative evidence – whether fresh evidence should be admitted in the appeal Queensland Civil and Administrative Tribunal Act 2009 ss 28 and 142(3)(a)(i) Clarke v Japan Machines (Australia) Pty Ltd [1984] Qld R 404 Rintoul v State of Queensland & Ors [2018] QCA 20 Terera v Clifford [2017] QCA 181 |
REASONS FOR DECISION
- [1]This appeal arises as a result of very loose contractual arrangements between the parties concerning the repair of a classic motor vehicle, a 1967 Fiat Dino. Mr Pulitano is a classic car enthusiast and is the owner of the subject Dino. Mr Murtas, through the respondent company, holds himself out to be an expert in the restoration and repair of classic cars, with a particular expertise with Fiats.
- [2]In March 2019 Mr. Pulitano contacted Mr. Murtas with a view of having some work done on his vehicle because it was misfiring. Mr. Murtas inspected the vehicle at Mr Pulitano's residence and told him that the engine would have to be removed and the cylinder heads repaired, in other words a partial engine rebuild. Mr. Pulitano took the vehicle to Brisbane for the work to be carried out. There was no discussion about the cost or the extent of the mechanical work to be undertaken.
- [3]Subsequently the engine was taken out, the cylinder heads repaired, and the engine put back together. Mr Murtas says he also replaced the oil pump and put in a new clutch kit as it was apparent to him they all needed replacing. Work was completed on 9 November 2019. The delay was partially as a result of sourcing parts for this older vehicle.
- [4]Once the work was finished Mr Murtas took it for a test drive. During the drive the vehicle’s engine overheated because the electric fan was not working properly. This resulted in a blown head gasket and damage to the engine. The heads had to be removed again and another engine rebuild.
- [5]Mr Murtas says he then contacted Mr. Pulitano to explain what occurred on the test drive and the over-heating due to an electrical problem. He also explained that the engine would now require another rebuild, the engine heads would have to be removed and tested and repaired if necessary and put back together. Having explained all of this to Mr Pulitano, he says he was told to go ahead with the work.
- [6]Mr. Pulitano has a different version of events as set out in his response. He says the first inspection was to try and tune the vehicle, then when this didn’t work the vehicle was to be taken to Mr Murtas premises “to fix some seals in the heads”. There was no mention of an engine rebuild. Similarly, there was no mention of an open-ended engagement to do whatever work he considered necessary, in particular replacement of the oil pump and clutch. He also disputes that the temperature gauge was not working because the vehicle had been running for an hour or so when Mr Murtas first inspected the vehicle. When informed of the overheating and the need for further repairs, Mr Pulitano says that he told Mr Murtas “that he should restore the car to condition (sic) it was in prior to him damaging it”. Finally, he was not aware that all, or most, of the work on the vehicle would be subcontracted out to specialist engine repairers.
- [7]On the basis that Mr Murtas assumed he had the go ahead from Mr Pulitano, he then proceeded to undertake the further repairs to the vehicle. He engaged Fleetline Auto Engineering to do the further work on the engine. This was done but some electrical issues arose and Mr Murtas sought permission to do further work, but he says Mr Pulitano did not respond.
- [8]There were some text message exchanges between the parties, it seems. On 14 June 2020 Mr Pulitano asked “how the Dino was going? How much longer to completion?” Then on 19 July 2020 he again sent a text, “is the Dino finished…is it going and when can I pick it up?” Mr Murtas assured him it was, and it could be picked up the following week.
- [9]When Mr Pulitano picked up the car, he was very concerned about the cars performance as it was not running properly, to which he says Mr Murtas agreed, he had difficulty getting the car on to the trailer.
- [10]Through the whole of this process costing for the work was never discussed. On 1 August 2020 the respondent issued an invoice to Mr Pulitano for $15,648.00. Included in the invoice is $8,888.02 for the cost of subcontractors charges. The respondent charged a “mark-up” on these charges of $2,720.28. It would therefore seem, for his own work Mr Murtas (or the respondent) charged $4,039.60, although at the hearing there as a concession that there was an overcharge of $1,000.00 by mistake, so this reduces the respondent charge to $3,039.60.
- [11]Mr Pulitano did not pay the invoice because of his various complaints about the work as summarised above. As a result, the respondent commenced the proceeding in the minor civil disputes jurisdiction of the Tribunal to recover the cost of the work. As already mentioned, in summary, the parties various positions in relation to what occurred are set out in annexures to the application and the response. Despite Mr Pulitano’s complaints about the work there is no counter-claim or set off.
- [12]The application came on for hearing on 7 March 2022 before a tribunal adjudicator. I have a transcript of the hearing and the reasons for the decision. Both parties attended by telephone because it was during the pandemic period. Each party put their case, which was consistent with what was raised in the application and the response.
- [13]When dealing with Mr Pulitano’s complaints he was asked what evidence he had to support his position that the work on the car was not up to standard or defective. His reply was:
I’ve really got none. No evidence except Mr Murtas’ word, right that he – none. Because, really, I’ve got no evidence whatsoever to say that Mr Murtas – right – all I can say is that before it was given to him there was no issues (sic).[1]
- [14]When queried further about the “issues”, Mr Pulitano did say:
The car is in worse condition now than when it was taken to him. The engine has to be – had had to be stripped down again and rebuilt.[2]
- [15]When asked about that evidence to support what he was saying, it then transpired that Mr Pulitano was not expecting that the proceeding being conducted that day was a final determination of the claim:
I can't get a statement from the [indistinct] because, you know, [indistinct] sorry to sort of stop for a minute. This conference call here, right, was it ever notified to us? To me? Because I got no knowledge or documentation just for this conference call being actually scheduled I have seen a letter………….all I got was a letter saying that was going to be a conference call, right, no dates, no nothing.[3]
- [16]He was asked about the hearing notice on the file which demonstrated that the notice was sent to him advising him of the date and time of the hearing. When Mr Murtas said he had received the hearing notice with the date and the time, Mr Pulitano said:
Sorry, I might’ve misread it or – never mind, anyway. You’re here and you’re there.[4]
- [17]The obvious effect of this statement is that Mr Pulitano was, in the circumstances, prepared to proceed with the hearing. Although later[5] in the hearing he said that the engine had been stripped down and he was waiting for a report from the mechanic as to what was wrong with it. He also referred to work undertaken by Blitz Autowork which was confined to performance tests (all cylinders in spec), replacement spark plugs, ignition coil and engine oil. There is no suggestion from the information on the Blitz Autowork invoice that there were major problems with the engine.[6]
- [18]In the absence of any other evidence as to the condition of the vehicle as alleged by Mr Pulitano, and on the basis, it seems that he was content to proceed with the hearing, and after giving reasons, ordered that Mr Pulitano pay the respondent $15,057.00 which included the filing fee.
- [19]On 13 April 2022 Mr Pulitano filed an application for leave to appeal or appeal. The grounds of appeal are that Mr Pulitano was denied natural justice in the manner in which the hearing was conducted. More precisely they are that:
- (a)the appellant did not receive notice of the hearing and;
- (b)the appellant’s material was not before the tribunal, or in the alternative, was refused by the tribunal;
- (c)the appellant was unable to call witnesses that had sworn statements in support of the appearance case;
- (d)the appellant was at a disadvantage due to not having prepared for the conduct of the hearing on 7 March 2022
- (a)
- [20]Other grounds of appeal include that the hearing proceeded when the appellant was not in position to proceed; the tribunal was in error when it considered that the tribunal hearing was to be conducted with the “least degree of formality”; and that the appellants evidence ought to have been admitted at the hearing or alternatively the hearing adjourned.
- [21]After the application for leave to appeal was filed Mr. Pulitano filed an application to lead fresh evidence in the appeal. This evidence is annexed to an affidavit of Gabriel Hutchinson, a solicitor from Clutch Legal. It includes statements from witnesses proposed to be called establish the facts that Mr Pulitano was asserting before the learned adjudicator. That evidence includes:
- (a)Statement of Filip Pulitano undated;
- (b)Statement of Stephen Heinrich dated 31 March 2022;
- (c)statutory declaration of Ronald McCallum dated 30 March 2022;
- (d)statutory declaration of Simon Pulitano directed 30 March 2022;
- (e)statutory decoration of Anna Pulitano dated 30 March 2022;
- (a)
- [22]I will first deal with the application to lead fresh evidence. The general principles for leading fresh evidence in an appeal are well established.[7] Fresh evidence will only be accepted if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily an applicant for leave to adduce such evidence must satisfy each of the following tests:
- (a)The evidence could not have been obtained with reasonable diligence for use at the trial;
- (b)The evidence, if allowed, would probably have an important impact on the result of the case (although it need not be demonstrated that it would be decisive);
- (c)That the evidence is credible though it need not be incontrovertible
- (a)
- [23]The statement from Mr Pulitano, does nothing more than reiterate the evidence, in a little more detail, that he gave at the hearing and the case asserted in the response. He contends that based on the report of Mr Heinrich the cost to rebuild the engine to the appropriate standard would be about $20,000. However, there is no quote from a repairer to support this. If a counterclaim is to be asserted, his estimate of cost is not probative.
- [24]The proposed evidence from Simon Pulitano and Anna Pulitano relate to events in 2018 concerning the operation of the vehicle. Clearly this evidence would have been available to Mr Pulitano to submit to the tribunal prior to the hearing of the application. Similarly, the evidence of Mr McCallum corroborates the evidence of Mr Pulitano about driving the car to Noosa in 2018, and the condition of the car when collected from Mr Murtas in 2020. This evidence would have been available to submit the hearing also.
- [25]The only new evidence is that of Mr Heinrich. His report as to the condition of the engine is dated 31 March 2022. It is unclear as to whether this is the person who is stripping down the engine referred to by Mr Pulitano in the hearing, however Mr Pulitano does say in his new evidence statement that he has “now engaged” Mr Heinrich to strip down the engine an prepare a report. It would seem this was done after the hearing. The difficulty with admitting this evidence is that it could have been obtained with due diligence before the hearing. I accept that it could well have an impact on the outcome of the hearing, it is just that Mr Pulitano did not properly prepare his case for the hearing.
- [26]When one then turns to the grounds of appeal, being a denial of natural justice, it does seem that Mr Pulitano was caught off guard, and although he seems to accept that he received the hearing notice, he concedes he must have misread it. Despite this, in his own words, he was content to continue with the hearing by the using the words referred to in [16] above.
- [27]The grounds of appeal also refer to the fact that his evidence was not before the tribunal and he “was unable to call witnesses that had sworn statements in support of the appearance case”. The fact of the matter is that there were no sworn statements prepared before the hearing and that is self-evident by the dates on the statements.
- [28]Mr Pulitano did not apply for an adjournment. One can understand when parties are acting for themselves that they may not be familiar with their rights to an adjournment if not ready to proceed. Also, under s 29 of the Queensland Civil and Administrative Tribunal Act 2009 the tribunal is obliged to ensure that parties understand the tribunal’s procedures. However, given Mr Pulitano’s concessions about the hearing notice, the lack of any suggestion of a counterclaim or witnesses that Mr Pulitano wanted to call, there was nothing to alert the learned adjudicator that the proceeding should be adjourned.
- [29]As for the comment that the matter proceed with the “least degree of formality” it is obvious from the transcript that the proceeding was conducted in the usual way by giving both parties an opportunity to present their respective positions. Mr Pulitano was queried as to whether there was any further evidence about the work done on the engine. His answer is set out in [13] above. The learned adjudicator, in the circumstance had little choice but to continue with the hearing and make a decision.
- [30]Having canvassed the way the proceeding was conducted, considered the application to lead fresh evidence and grounds of appeal there is no demonstrated basis for a grant of leave to appeal. As this is an appeal brought under s 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 in respect of a decision in a proceeding for minor civil dispute an appeal may be made only if the party has obtained leave of the tribunal. In Rintoul v State of Queensland & Ors [2018] QCA 20 at [10] the Court of Appeal reiterated the general principles:
The principles governing a grant of leave to appeal are well-established. In short, an applicant for leave to appeal must show:
- (a)the appeal is necessary to correct a substantial injustice;
- (b)there is a reasonable argument that there is an error to be corrected.
There must be reasonable prospects of success to warrant a grant of leave. Therefore, in deciding whether to grant leave to appeal the Court usually makes some preliminary assessment of the prospects of the proposed appeal[8]
- [31]In respect of the application to lead fresh evidence, as I said the report of Mr Heinrich would seem to establish that there are significant problems with the engine. If this can be sheeted home to the respondent Mr Pulitano can take the appropriate legal action to recover any damages as he may be advised to take against the respondent. He may be met with an Anshun estoppel argument in that he should have counter-claimed in the original proceeding, but the full extent of the damage was not known until the report was to hand. Also, unlike litigation in the courts, minor civil disputes are, mainly, dealt with expeditiously in the tribunal which sometimes does not give a party sufficient time to fully prepare a defence, and in this case a counterclaim. Particularly when parties are self-represented.
- [32]Although one could take the view that the mark up on outsourced work was somewhat excessive, this is an appeal and not a retrial of the issues before the tribunal adjudicator. Also, there was no evidence adduced at the hearing which would lead to a conclusion that there was any restriction on the part of the respondent to outsource the work. It could not be said to be part of the contractual arrangement, despite Mr Pulitano’s assumptions.
- [33]The appeal tribunal makes the following orders:
- (a)The application to lead fresh evidence is dismissed.
- (b)Leave to appeal is refused.
- (a)