Adams v Glass Wholesalers Pty Ltd
[2011] QCATA 209
•5 August 2011
| CITATION: | Adams v Glass Wholesalers Pty Ltd [2011] QCATA 209 |
| PARTIES: | Mr David Adams trading as Noosa Aluminium |
| v | |
| Glass Wholesalers Pty Ltd |
APPLICATION NUMBER: APL175 -11
| MATTER TYPE: | Appeals |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Richard Oliver, Senior Member Peta Stilgoe, Member |
DELIVERED ON: 5 August 2011
DELIVERED AT: Brisbane
ORDERS MADE: 1. Leave to appeal refused.
2.Application to reopen a Decision allowed.
3.Decision of 3 May 2011 amended by deleting paragraph 1.
| CATCHWORDS: | MINOR CIVIL DISPUTE APPEAL – whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Chambers v Jobling (1986) 7 NSWLR 1 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Mr Oliver
In this matter the Appeal Tribunal consisted of Ms Stilgoe, QCAT Member and me. I have had the benefit of reading her reasons in draft. I agree with her reasons, and her conclusions, and the order she proposes.
Ms Stilgoe
In November 2009, Mr Adams bought a quantity of glass from Glass Wholesalers Pty Ltd. Mr Adams did not pay for the glass so Glass Wholesalers brought an application in the minor civil disputes jurisdiction of the tribunal. The terms of the contract between the parties are still not clear, as the learned Adjudicator frankly admitted.[1] Doing the best that he could, the learned Adjudicator ordered that Mr Adams pay Glass Wholesalers $8,000 of the $13,000 claimed. The learned Adjudicator also ordered that Glass Wholesalers provide a “Form 15” within 7 days of the date of the order.
[1] Transcript page 25, lines 21-22.
Mr Adams has appealed the learned Adjudicator’s decision on these grounds:
a) That Glass Wholesalers was not capable of complying with the Building Code of Australia in on-selling imported Chinese glass without the relevant compliance certificate and assurance documentation required under the relevant standards.
b) Glass Wholesalers did not provide the Form 15 as required.
Glass Wholesalers has applied to reopen the learned Adjudicator’s decision because, it says, it cannot provide the Form 15.
Because this is an appeal from a decision of the tribunal in its minor civil dispute jurisdiction, leave is necessary. Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?
There are two problems with Mr Adams’ grounds for appeal. Firstly, the issue of certification was considered at the hearing:
a) The learned Adjudicator could not make any finding that certification was a term of the contract.[2]
b) The learned Adjudicator noted that Mr Adams did nothing about the need for certification or the need for a Form 15 in any of the correspondence he sent to Glass Wholesalers.[3]
c) The learned Adjudicator did not accept that there was a term of the contract relating to the quality or condition of the glass.[4]
[2] Transcript page 23, lines 16-28.
[3] Transcript page 24, lines 37-44.
[4] Transcript page 25, lines 1-4.
Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[5]
[5]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.[6] As the High Court said in Fox v Percy:
In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.[7]
[6] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[7] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
I have considered the transcript carefully and I can find no compelling reason to overturn the learned Adjudicator’s findings about the terms of the contract.
Mr Adams’ second difficulty is that he now refers to sections of the Building Act, the Building Code of Australia, the Queensland Development Code and some Australian Standards that were not raised before the learned Adjudicator. As to the matters of law, an application for leave to appeal should not be seen as an opportunity to “have another go”. Finality in litigation is highly desirable because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties.[8] Mr Adams has not provided the Appeal Tribunal with any good reason why he should be allowed to raise these matters of law when he did not raise them at the hearing.
[8] See Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Kirby and Gummow JJ.
As to the new evidence that Mr Adams wants to put before the tribunal, 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); and
c) That the evidence is credible though it need not be incontrovertible.[9]
[9] Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.
The additional material that Mr Adams wants to rely on could, with reasonable diligence, have been available at the initial hearing. There is no good reason to allow Mr Adams to rely on it now.
There is no question of general importance that should be determined by the appeals tribunal; there is no reasonably arguable case that the learned Adjudicator was in error; there is no reasonable prospect of substantive relief on appeal; and there is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.
It was clear at the initial hearing that none of the parties really knew what a Form 15 entailed.[10] Glass Wholesalers has now produced evidence that a Form 15 is a compliance certificate for building design or specification which, in its view, cannot be completed by a glass supplier. That must be the correct interpretation; as Mr Adams pointed out in his email to Glass Wholesalers, a Form 15 is to be completed by a licensed glazier who has access to the necessary compliance certificates from the manufacturer or supplier. As Glass Wholesalers cannot comply with the learned Adjudicator’s direction, the application to reopen should be allowed and paragraph 1 of the learned Adjudicator’s should be deleted.
[10] Transcript page 11, lines 14-22; page 21, lines 8-16.
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