Mann v Foote[2024] QCATA 28

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   By an Application for leave to appeal or appeal filed on 2 November 2022 (the Appeal Application), the Applicant (Mr Mann) seeks leave to appeal, and to appeal, a decision made by the Queensland Civil and Administrative Tribunal (the Tribunal) on 14 October 2022 (the Decision).
2. [2]
   The Decision was made in a proceeding commenced by the Respondent to the Appeal Application (Ms Foote) by an Application for minor civil dispute – consumer/trader dispute; property damage caused by a motor vehicle, filed on 16 May 2022 (the MCD Application).
3. [3]
   Ms Foote claimed the cost of repairing engine damage that had been sustained to a 2018 Toyota Hilux motor vehicle (the vehicle) as a result of a lack of oil in the engine in circumstances where the vehicle had been serviced by Mr Mann earlier in the week. The amount of the claim was $8,422.50 (including a filing fee of $127.50). Mr Mann trades as ‘Richies Mechanical’.
4. [4]
   The hearing of the MCD Application proceeded on 14 October 2022. By the Decision, the Tribunal (constituted by an Adjudicator) ordered that Mr Mann pay Ms Foote the sum of $8,422.50 within 28 days. In summary, the Adjudicator found that the engine damage was caused because there was not enough oil to lubricate the engine following the service by Mr Mann.

The Grounds of Appeal

5. [5]
   The Grounds of Appeal set out in the Appeal Application are stated as follows:

I am appealing this decision as I feel the adjudicator was not aware of most of the facts/evidence submitted by myself prior to hearing. A key piece of evidence was given to the adjudicator in and black and white (dipstick screenshot) and needed to be seen in colour. He never confirmed if the oil was visible on the photo.

RACQ advised [Ms Foote] to continue driving the vehicle after she was aware there was a problem.

The adjudicators knowledge of engines and their requirements was very limited, and I feel this affected the outcome.

6. [6]
   In supporting written submissions, Mr Mann set out the following reasons:

• I provided a detailed 4 page statement that I do not feel was fully acknowledged prior to the hearing.
• A black and white photo of the dipstick was supplied to [the Adjudicator] to consider (I am unsure if the oil would be as visible on a black and white photo) and he never confirmed if he could see the oil on the dipstick or not. I have included a coloured photo of this with this application as visible proof that there was oil in [Ms Foote’s] engine when it was at the side of the road.
• The car travelled almost 200km before there was any issue. Some of these KMs were on a highway at speeds up to 110km/hr and some were where the car was full of camping equipment and towing a trailer and 2 motorbikes.
• RACQ advised her to carry on driving it! With a noisy engine, Which she did for a further 15-18km.
• The low oil pressure light did not come on until Beaudesert. The adjudicator said in his summary that it came on at Tambourine which was incorrect. This information regarding when the low oil pressure light came on is important.
• No damage reported by the engine repairer at the top part of the engine. There would be damage to the top part if there was no oil.
• The engine builder obviously considered the low oil pressure warning system to be working correctly as nothing related to this was replaced.
• The engine has done almost 300,000km. Something inside the engine failed that day.

7. [7]
   Mr Mann also contended that the ‘summary’ at the end of the hearing (which is plainly a reference to the Adjudicator’s oral reasons) was ‘confusing’ as some of it was inaccurate from what had been discussed during the hearing.

The Order sought

8. [8]
   Mr Mann seeks an order that the Decision be ‘overturned’.

Leave to appeal is required

9. [9]
   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.^[1]
10. [10]
    As to the Tribunal’s approach to an application for such leave, I respectfully adopt the following observations of Judicial Member DJ McGill SC:^[2]

… 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)

11. [11]
    Further, as was said by Justice Daubney, President, in Berry v Treasure & Anor:^[3]

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)

12. [12]
    Before turning to the merits of the Grounds of Appeal, it is necessary to deal with further evidence sought to be adduced by each of the parties.

The further evidence

Mr Mann’s further evidence

13. [13]
    On the Appeal Application, Mr Mann sought to rely upon the following further evidence:

    1. copies of text messages between Mr Mann and Ms Foote in relation to ‘extras’ contained in a quotation Mr Mann provided to Ms Foote in relation to repairs to the vehicle;
    2. a copy of an invoice from Mr Mann (Richies Mechanical) to Ms Foote dated 9 November 2021 in relation to the service performed by Mr Mann;
    3. a copy of an invoice from Exchange Engine Supplies for the repair work performed by it on the vehicle;
    4. a copy of Mr Mann’s work diary as at 9 November 2021 (this was said to be relevant to the dispute on the Appeal Application as to whether the service took place on 9 or 10 November 2021);
    5. a copy of a schedule of insurance which Mr Mann submitted showed that he had available insurance coverage for the claim made by Ms Foote.

Ms Foote’s further evidence

14. [14]
    On the Appeal Application, Ms Foote sought to rely upon the following further evidence:

    1. a USB which contained, relevantly, a video of the dipstick taken out of the engine at the service station at Beaudesert;
    2. a statement of Ms Foote dated 10 November 2022;
    3. a copy of two colour photos of the dipstick (one taken from the video) and one taken of the dipstick at a subsequent date;
    4. a copy of text messages with Mr Mann allegedly in response to being sent the video that it ‘looks empty’’;
    5. a copy of screenshots of Ms Foote’s work diary said to show her commitments for, relevantly, 9 to 13 November 2021.

Applicable principles

15. [15]
    In relation to an application to adduce further (fresh) evidence on an application for leave to appeal or appeal, I respectfully adopt the following observations of Senior Member Howard in Alderton & Anor v Wide Bay Constructions Pty Ltd:^[4]

[37] In QCAT, if an appeal is allowed on a question of law only, the appeal tribunal may not rehear the proceeding. An appeal allowed on a question of fact or mixed law and fact, proceeds by way of rehearing before the appeal tribunal.

[38] Fresh evidence may be allowed in appeal proceedings that proceed by way of rehearing, but only in limited circumstances. Although I am not determining the application for leave to appeal or the appeal, I observe some relevant underlying principles. The appeal process is for correcting error made by the original decision-maker. It is not an opportunity for a party to present their case again in order to achieve a different outcome, or reargue it, merely because the party does not like or agree with the outcome/decision of the original tribunal. Where required, leave to appeal will generally only be granted when there is a reasonably arguable case of error in the primary decision; reasonable prospects of substantive relief and there is a necessity to grant leave to correct a substantial injustice.

[39] The principle of finality in litigation counts against admitting fresh evidence on appeal. Parties are expected to act in their own interests and make their own case fully in the first hearing.

[40] In an application for leave to rely upon fresh evidence concerning evidence that did not exist at the time of the original hearing, to succeed, an applicant must generally show as follows:

a) That the evidence could not have been available with reasonable diligence for the original hearing;

b) That if it was allowed to be relied upon it probably would have had an important impact on the result of the case; and

c) That the evidence is credible.

(citations omitted)

16. [16]
    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.^[5]

Decision in relation to the further evidence

17. [17]
    I allow the following further evidence:

    1. a video of approximately 7 seconds contained on the USB showing the state of the dipstick taken from the engine at the service station at Beaudesert;
    2. the copy of the tax invoice from Engine Repair Supplies.
18. [18]
    With respect to the video, each of the parties was content for the video to be shown at the hearing and the USB admitted as an exhibit (Exhibit 1). Importantly, at the original hearing, each of the parties submitted a screenshot from the video which was said to support the respective contentions of the parties; in the case of Ms Foote that no oil was shown, and in the case of Mr Mann that oil could be seen. In the circumstances, I consider it appropriate that the original evidence (of the video) be admitted into evidence.
19. [19]
    With respect to the tax invoice, a copy of the tax invoice formed part of the material submitted by Ms Foote at first instance. The copy of that invoice on the Tribunal file is not particularly clear. It is for that reason that I admit the clearer version of that document submitted by Mr Mann.
20. [20]
    As to the balance of the evidence, I refuse to allow that evidence because in each instance the respective parties have not established that the evidence could not have been available with reasonable diligence for the original hearing (and, on their face, it appears clear that such evidence would have been available with reasonable diligence). For completeness, even if that evidence had been allowed, I consider that such evidence would not have been decisive in the outcome of the Appeal Application.

The Adjudicator’s findings

21. [21]
    The Adjudicator provided lengthy oral reasons.^[6]
22. [22]
    In my view, critical to the Decision, was the Adjudicator’s acceptance of the evidence of Ms Foote, the evidence of a witness Mr Melvin, and a report from Exchange Engine Supplies (the ESS Report).^[7]
23. [23]
    It is convenient to set out the material findings of the Adjudicator and the evidence accepted by the Adjudicator.
24. [24]
    Mr Mann serviced Ms Foote’s vehicle on 9 November 2021.^[8] On the Appeal Application, Ms Foote sought to establish that the service took place on 10 November 2021. For the reasons set out above, I have not allowed any further evidence on this issue. In any event, I consider that there could be no challenge to this finding given that, at the hearing below, Ms Foote accepted that the service took place on 9 November 2021.^[9]
25. [25]
    The service by Mr Mann would have included the drainage and replacement of oil in the engine.^[10]
26. [26]
    The following Saturday, Ms Foote was in the process of travelling towards Beaudesert when the vehicle developed a mechanical fault sufficient for her to call RACQ.^[11]
27. [27]
    On the advice of RACQ, Ms Foote drove her vehicle to a service station at Beaudesert.^[12]
28. [28]
    In relation to Mr Melvin’s evidence, the Adjudicator said:^[13]

He volunteered to assist Ms Foote as she seemed quite distressed. Mr Melvin has provided a statement which says that he, being an enthusiastic amateur, checked the dipstick on four occasions and could not find a visible oil line after any of those attempts. That is suggestive of the fact that the oil was not present. Mr Melvin's son then further assisted by purchasing a 10-litre tin of oil and added approximately seven litres on the dipstick. An attempt was made to restart the car but the loud noise indicating a clear defect was still present and the vehicle was, thereafter, towed.

29. [29]
    Mr Melvin’s statement also included the following:

… After adding ~7L the oil was clearly visible on the dipstick ...

30. [30]
    The Adjudicator noted a dispute between the parties as to whether Ms Foote had driven slightly in excess of 200 kilometres (as submitted by Mr Mann) or no more than about 40 kilometres as stated by Ms Foote.^[14] As I read the Reasons, the Adjudicator did not make a specific finding in relation to the actual kilometres travelled, but the Adjudicator said that he was inclined to accept what Ms Foote said.^[15]
31. [31]
    The Adjudicator found that until the ‘red light’ came on, there was no suggestion of there being any defect in the vehicle.^[16]
32. [32]
    The Adjudicator accepted the evidence contained in the ESS Report.^[17]
33. [33]
    The relevant content of the ESS Report is as follows:

Vehicle presented to our workshop not running and engine was undable [sic] to be turned manually.

Our company removed the engine and disassembled this engine and physically inspected the engine, this engine had a failure due to a lack of oil, the engine was clean and had obviously been serviced well with no evidence of sludge, the pick up was clean, there was a slight rear main seal weep however nothing that suggested that the oil had leaked out internally, with the video you showed us of the dipstick and the inspection of this engine we do in fact concur with your suggestion that there was not enough oil in this engine to lubricate it. The main bearings had damage and the damage got worse throughout the engine as the oil ran out towards the end of the line until the last conrod bearing where there was no oil to lubricate this and the bearing had completely disintegrated and damaged the con rod itself and the crankshaft journal and because there was no bearing left the piston was hitting the cylinder head. This engine bad to be fully reconditioned to repair this damage and as discussed with you one conrod had to be replaced because it was destroyed that much it was not able to be machined to be repaired.

Our company had sent out the injectors to have them tested and checked to eliminate the possibility of fuel being the issue with this engine and the diesel specialist has ruled that out and the pistons are here for you to proved [sic] that this was not the case, all the bearings, pistons and the conrod that was damaged beyond repair are here for you so there is no confusion about the cause of this engine failure, I have sent you photos of the pick up and other pictures of everything we had to put back in the engine ...

34. [34]
    The Adjudicator did not accept Mr Mann’s suggested explanation as to why the engine failed so soon after the service and accepted the conclusion expressed in the Report that the engine damage was as a result of a lack of oil.^[18]

Analysis

35. [35]
    In my view, Mr Mann’s challenge to the Decision involves a challenge to the findings of fact.
36. [36]
    I consider that there is no demonstrable basis for overturning the factual findings made by the Adjudicator.
37. [37]
    In relation to the lack of oil in the engine when the vehicle was stopped at the service station at Beaudesert, Mr Melvin checked the dipstick on four occasions and could not find a ‘visible oil line’ after any of those attempts, and after seven litres of oil was added to the engine ‘the oil was clearly visible on the dipstick’. Not only did Mr Melvin observe no visible oil line initially, he also noted the change in the appearance of the dipstick after the adding of the oil. With respect to the video, I was unable to discern any readily identifiable deposit of oil sufficient to rebut Mr Melvin’s direct evidence. As Ms Foote had submitted at the hearing below, there may have been some ‘residue’ left on the dipstick. The evidence of Mr Melvin plainly supported the Adjudicator’s finding in relation to the lack of oil in the engine.
38. [38]
    With respect to the kilometres travelled before the engine issue emerged, I am satisfied that the Adjudicator’s general acceptance of Ms Foote’s evidence included her evidence in relation to the distance travelled. Mr Mann submitted that if there had been no oil in the engine, the vehicle would not have been able to be driven from the workshop to Ms Foote’s residence, let alone approximately 40 kilometres. However, I reject this argument for two reasons. First, the Report stated that the writer concurred that ‘there was not enough oil in this engine to lubricate it’. This does not suggest that there was no oil at all within the engine following the service. Rather, that there was insufficient oil in the engine. Second, in my view, there was no evidence available to the Adjudicator to justify a conclusion that it was more likely than not that the oil had leaked from the engine after the time of the service. To the contrary, the ESS Report noted that, while there was a slight ‘rear main seal weep’, nothing suggested that the oil had leaked out internally. Further, Exchange Engine Supplies sent the injectors for testing to eliminate the possibility of fuel being the issue with the engine and the diesel specialist ruled that out. In my view, the evidence available to the Adjudicator supported the conclusion that the lack of oil originated from the service.
39. [39]
    With respect to Mr Mann’s submissions that there would have been damage to the top part of the engine if there was no oil, and that the engine had done almost 300,000 kilometres and ‘something inside the engine failed that day’, I consider that these amount to assertions and there is no evidence to corroborate them.
40. [40]
    Having regard to the Adjudicator’s reasons and the evidence before the Adjudicator (as supplemented by the two pieces of evidence allowed on the Appeal Application), I conclude that the Adjudicator’s findings were open on the evidence and Mr Mann has not demonstrated any factual error on the part of the Adjudicator.

Conclusion

41. [41]
    For the above reasons, I consider that Mr Mann 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 Mr Mann raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public’s advantage.
42. [42]
    Leave to appeal is refused.