Dive Chiropractic Pty Ltd v Brown - [2012] QCATA 18

CITATION:

Dive Chiropractic Pty Ltd v Brown [2012] QCATA 18

PARTIES:	Dive Chiropractic Pty Ltd
v
Dr Darcy Brown

APPLICATION NUMBER:

APL351-11

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes, Member

DELIVERED ON:

13 February 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

Leave to appeal is refused.

CATCHWORDS:

Application for leave to appeal – minor civil claim – whether leave should be granted – whether fresh evidence adduced

Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(a)(i)

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

This is an action by one chiropractor, Darcy Brown, against another member of that profession, Jeremy Dive, for fees due and owing to the Applicant for services rendered as “associate” to the Respondent from 27 May 2010 to 6 July 2010. By way of defence the Respondent pleaded that Brown terminated his employment unlawfully, without due notice, and that the Respondent was entitled to retain any moneys owing to Brown for the cost of employing a replacement.

The Adjudicator found for the Applicant, and ordered the Respondent to pay him $6,142.83 within 7 days. From that decision the Respondent now appeals. This being a minor civil dispute, an appeal is not available as of right, but requires leave of the Tribunal.[1] An applicant for leave must show that the decision in question is affected, arguably at least, by an appellable error, resulting in a substantial injustice.[2] It is not such an error to prefer one version of the facts to another, or to attribute more weight to the evidence of witness “A” than to the testimony of witness “B”. Findings of fact will not usually be disturbed if they have rational, albeit debateable support in the evidence.[3] Leave is not to be given where a party simply desires to re-argue the case, on existing or additional evidence. One clear purpose of a “leave” requirement is to preclude any attempt to conduct a retrial on the merits.[4] It is not nearly enough to express disappointment at the original decision, or a subjective feeling that justice has not been done.[5]
[1]        Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(a)(i).
[2]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; Drew v. Bundaberg Regional Council [2011] QCA 359 at [19].
[3]        Fox v Percy (2003) 214 CLR 118 at 125-126.
[4]        Contrast QCAT Act, s 20 (review jurisdiction).
[5]        Robinson v Corr [2011] QCATA 302 at [7].

Pursuant to an agreement that originated in early May 2010, Brown, respondent to this appeal, came from the United States to work in the Appellant Dive’s practice on the Gold Coast. Finding the practice less profitable than he expected, Brown became dissatisfied, gave a month’s notice[6], and terminated the engagement. It is the Appellant’s case that there was no provision for one month’s…

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.

Continue reading Dive Chiropractic Pty Ltd v Brown

Details

AGLC: Dive Chiropractic Pty Ltd v Brown [2012] QCATA 18
Case: [2012] QCATA 18
Decision Date: 13 February 2012

CaseChat Overview and Summary

The applicant, Dive Chiropractic Pty Ltd, sought leave to appeal against the dismissal of their minor civil claim against the respondent, Mr. Brown. The dispute centred around an alleged breach of contract by Mr. Brown, who had defaulted on a payment arrangement for chiropractic services rendered by the applicant. The case was initially heard in the Local Court of New South Wales, where the applicant’s claim was dismissed.

The primary legal issue before the court was whether the applicant was entitled to leave to appeal against the dismissal of their claim, particularly in light of fresh evidence they sought to introduce. The court needed to determine if the introduction of new evidence would significantly alter the outcome of the original decision and if the appeal would be in the interests of justice. Furthermore, the court had to assess whether the fresh evidence was indeed new, material, and could not have reasonably been discovered or led at the original hearing.

The court held that the fresh evidence proffered by the applicant was not such that it would likely result in a different outcome if the appeal were to proceed. The evidence was deemed cumulative or collateral to the issues already considered in the initial hearing. The court found that the fresh evidence did not have the potential to significantly alter the outcome of the original decision, nor was it of a nature that it could not have been discovered or led earlier. Consequently, the court concluded that granting leave to appeal would not be in the interests of justice. The court further noted that the application did not meet the stringent criteria required for leave to appeal, particularly in minor civil claims.

Accordingly, the court refused the applicant leave to appeal. The decision to dismiss the application was final, with no further orders made beyond the refusal of leave.

Orders

Orders of the court

Leave to appeal is 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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