Fernandez v Mathew

[2013] QCATA 52

CITATION: Fernandez v Mathew [2013] QCATA 52

PARTIES:	Dr Cyril Fernandez Mrs Sheeba Fernandez (Applicants/Appellants)
V
Mr Abey J Mathew (Respondent)

APPLICATION NUMBER: APL281 -12

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Peta Stilgoe, Senior Member

DELIVERED ON: 25 February 2013

DELIVERED AT: Brisbane

ORDERS MADE: 1.  Leave to appeal refused.

CATCHWORDS:

MINOR CIVIL DISPUTE – whether grounds for leave to appeal

Queensland Civil and Administrative Tribunal Act2009, s137, 138

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404

Dearman v Dearman (1908) 7 CLR 549

Fox v Percy (2003) 214 CLR 118

Chambers v Jobling (1986) 7 NSWLR 1

APPEARANCES and REPRESENTATION (if any):

The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. Dr Fernandez and Mr Mathew were in partnership. In the course of the partnership, Dr Fernandez lent Mr Mathew $6,850 to buy a car. The partnership broke up but, as is often the way, the parties continued to argue. On 27 February 2011, the parties attended mediation that resulted in a written agreement “regarding partnership liquidation and finance settlement”.

2. Dr and Mrs Fernandez filed a claim for $5,218.40 that related to the loan for the car and some small items which, Dr Fernandez says, Mr Mathew was supposed to return to them. The learned Member found that the parties had settled the partnership dispute though mediation and dismissed the claim.

3. Dr and Mrs Fernandez want to appeal that decision. Because this is an appeal from a minor civil dispute, Dr and Mrs Fernandez must seek leave to appeal. The tribunal may grant leave if the dispute raises a question of general importance and the public would benefit from a decision on that question. It may also grant leave if Dr and Mrs Fernandez shows a reasonably arguable case of error and a reasonable prospect that they will obtain substantive relief if the error is corrected. 

1. Dr and Mrs Fernandez have repeated the arguments they made to the learned Member but they have also filed new evidence. In particular, they have filed copies of emails to the mediation team asking them to confirm that the settlement agreement is not the complete agreement.

1. The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time of the original proceeding[1]. Usually, such evidence must satisfy three tests. Could Dr and Mrs Fernandez, with some effort,  obtained the evidence for use at the hearing? If allowed, will the evidence probably have an important impact on the result of the case? Is the evidence credible?[2]

   [1] ss 137 and 138 QCAT Act

   [2]            Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408

1. An application for leave to appeal should not be an attempt to plug the holes in a party’s case at the initial hearing. Dr and Mrs Fernandez knew that they had signed a settlement agreement. They should have known that it was relevant to this dispute. They have provided no explanation as to why this material was not available earlier.  

1. I will not consider the new material when I decide this appeal. I note, though, that the mediation team has advised, sensibly, that they will not be further involved in this dispute and will support only the signed written agreement. The new evidence, even if I accepted it, does not have any effect on the result of the case.

1. 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, can support its conclusions, and there is evidence to support any inferences underlining it.[3] 

   [3]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.

1. An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ .[4]  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.[5]

[4]        Chambers v Jobling (1986) 7 NSWLR 1 at 10.

[5]        Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.

1. I have read the transcript carefully. The settlement agreement is clear and it appears to settle the disputes that Dr and Mrs Fernandez want the tribunal to decide. There is nothing in the transcript that persuades me that the learned Member should have taken a different view of the facts. If Dr and Mrs Fernandez have a claim, it is for breach of the settlement agreement, not a claim on the dispute that was settled at mediation. I agree with the learned Member’s observation that a dispute about the terms of, or compliance with, the settlement agreement is a different argument that the tribunal may not be able to decide.

1. There is no question of general importance that should be determined by the appeals tribunal; there is no reasonably arguable case that the learned Member 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.