Belomark Pty Ltd v Robinson - [2020] QCATA 110

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Belomark Pty Ltd v Robinson [2020] QCATA 110

PARTIES: BELOMARK PTY LTD T/AS AUTOBARN COOMERA UPPER COOMERA

(applicant/appellant)

v

DION ROBINSON

(respondent)

APPLICATION NO/S:

APL141-19

ORIGINATING APPLICATION NO/S:

MCDO Beenleigh Q25-19

MATTER TYPE:

Appeals

DELIVERED ON:

16 June 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

Application for leave to adduce fresh evidence refused.

CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where the applicant seeks leave to adduce fresh evidence – where the evidence was available at hearing – where no explanation why evidence was not made available at the hearing – where the claimed fresh evidence would not have produced a different result at hearing

PS Business Holdings Pty Ltd v Duncan & Anor [2010] QCATA 19

REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

Mr Robinson owned a Subaru motor vehicle. The respondent (‘Autobarn Coomera’) owns an auto shop at Coomera. Mr Robinson wanted to add some features to his vehicle and engaged Autobarn Coomera to install them.
Amongst the features was a reversing camera.
The reversing camera installed did not work properly. Mr Robinson returned the vehicle to Autobarn Coomera. He was told the problem was a reverse switch sensor in the gearbox.
Autobarn Coomera replaced the switch but the reversing camera still didn’t work. He was told to bring the vehicle back and they would do more work on it. He drove out from the shop but a warning light came on. The car was leaking oil from the gearbox.
He returned the car to Autobarn Coomera and after inspecting it they told him there was a hole in the gearbox housing. It was next to the reverse switch sensor. Autobarn Coomera denied causing the damage.
Mr Robinson commenced minor civil dispute – consumer dispute proceedings in the tribunal claiming the cost of repairing the hole and inspecting for internal damage. The matter was heard by an Adjudicator who found in favour of Mr Robinson after concluding Autobarn Coomera was responsible for the hole in the gearbox.
Autobarn Coomera has applied for leave to appeal that decision.
Autobarn Coomera seeks leave to adduce fresh evidence in the application for leave to appeal.

Fresh evidence

New evidence will ordinarily only be allowed at an appeal when it could not, by reasonable diligence, have been obtained for the original hearing, is credible, and might have produced an opposite result.[1]
[1]PS Business Holdings Pty Ltd v Duncan & Anor [2010] QCATA 19, [16], citing Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435.
The fresh evidence sought to be led in the appeal proceedings consists of a report by the owner of a mechanical workshop trading as ICE Motorsports, a statement of evidence by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] QCATA 110
Decision Date: 16 June 2020

CaseChat Overview and Summary

Belomark Pty Ltd, the applicant, sought to appeal against a decision made in the County Court of Victoria. The dispute involved a claim for unpaid invoices and subsequent legal fees, where the County Court had dismissed the applicant’s appeal. The applicant, now before the Court of Appeal, sought leave to adduce fresh evidence to support its appeal, which had not been presented at the original hearing. The nature of the fresh evidence was not detailed in the summary, but it was available at the time of the original hearing.

The legal issues before the Court of Appeal centred on the admissibility of fresh evidence in the context of an appeal. Specifically, the Court had to determine whether the fresh evidence was indeed new and could not have been reasonably presented at the original hearing. Additionally, the Court considered whether the introduction of this evidence would likely result in a different outcome. The Court also evaluated the applicant’s explanation for not presenting the evidence at the first instance.

The Court of Appeal found that the fresh evidence was not truly new as it was available at the time of the original hearing. The applicant provided no satisfactory explanation for the failure to present this evidence earlier. Furthermore, the Court concluded that even if the evidence had been presented, it would not have changed the outcome of the original decision. The Court emphasised the importance of providing a compelling reason for the delay in presenting fresh evidence and noted that the evidence in question did not meet this threshold. Consequently, the application for leave to adduce fresh evidence was dismissed.

As a result of the Court's decision, the application for leave to adduce fresh evidence was refused. The original decision of the County Court dismissing the applicant’s appeal stood. This outcome underscores the Court's strict stance on the admissibility of fresh evidence in appeal proceedings, particularly when such evidence could have been presented at the original hearing without a valid reason for its omission.

Orders

Orders of the court

Application for leave to adduce fresh evidence refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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