Gemview Jewellery v Florian Stafleu - [2011] QCATA 276

CITATION:

Gemview Jewellery v Stafleu [2011] QCATA 276

PARTIES:	Gemview Jewellery (Applicant)
v
Florian Stafleu (Respondent)

APPLICATION NUMBER: APL223-11

MATTER TYPE:

Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF:

Peta Stilgoe, A/Senior Member
Michelle Howard, Member

DELIVERED ON: 29 September 2011

DELIVERED AT: Brisbane

ORDERS MADE: 1. Leave to appeal the decision of the tribunal is refused.

CATCHWORDS:

APPLICATION FOR LEAVE TO APPEAL – minor civil dispute – further evidence sought to be relied upon – reasonably available at date of hearing – no error in tribunal’s reasoning demonstrated

Queensland Civil and Administrative Tribunal Act 2009, ss 143, 147

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Georgalis v Andonaras (1993) 113 FLR 196
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
Cachia v Grech [2009] NSWCA 232
Doherty v Liverpool District Hospital (1991) 22 NSWLR 284
Warr v Santos [1973] 1 NSWLR 432
R v Bayliss [2002] NSWCCA 11
Cicic v Snowy Mountains Hydro-Electric Authority [1964-65] NSWR 178

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

Peta Stilgoe, A/Senior Member

I have read the draft reasons for decision of Ms Howard, and I agree with her reasons and the order she proposes.

Michelle Howard, Member

After hearing a minor civil dispute, a Member of the tribunal made orders that Gemview Jewellery pay the amount of $5,130.50 within one month to Mr Florian Staflau. The monies ordered to be paid represent a refund of the deposit of $5,000 for some custom made jewellery ordered by Mr Stafleu from Gemview Jewellery, together with costs of his filing fee and costs of serving the application. Gemview Jewellery seeks leave to appeal the decision.

The Tribunal was satisfied that the contract was terminated when there was an increase in the price originally agreed. It did not accept Gemview Jewellery’s assertions that the contract had been reaffirmed and considered this was inconsistent with the available written evidence.

The grounds of appeal are to the effect that Mr Pezeshkzad, who trades as Gemview Jewellery, has now located documentation which the Member requested from him at the hearing. He says that this documentation demonstrates that Mr Stafleu misconstrued the facts at the hearing. In an attachment to the application, headed ‘a brief review of the grounds of appeal’, Gemview Jewellery, further refers to Mr Stafleu as lying under oath. He seeks orders for a payment to Gemview Jewellery by Mr Stafleu.

Mr Staflau seeks orders dismissing the application for leave to appeal and appeal. Although he has not cross-appealed,…

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: [2011] QCATA 276
Decision Date: 29 September 2011

CaseChat Overview and Summary

In Gemview Jewellery, the applicant, and Florian Stafleu, the respondent, the case revolved around a minor civil dispute concerning the jurisdiction of the tribunal and the admissibility of certain evidence. The initial matter was heard and decided by the Queensland Civil and Administrative Tribunal (QCAT). The applicant sought leave to appeal the tribunal's decision to the Supreme Court, arguing that the tribunal erred in its determination by not considering certain evidence that was available at the time of the hearing.

The primary legal issue before the court was whether the tribunal had made an error in excluding certain evidence that the applicant sought to introduce at the appeal stage. Specifically, the applicant argued that the evidence was reasonably available at the time of the tribunal's hearing and that its exclusion constituted a significant error. Additionally, the applicant sought to challenge the tribunal's jurisdictional findings.

The court found that the applicant had not demonstrated that the tribunal had erred in its reasoning or in its jurisdictional findings. The evidence in question was deemed reasonably available at the time of the tribunal's hearing and was considered by the tribunal. The applicant's arguments regarding the tribunal's jurisdiction were also found to be without merit, as the tribunal had correctly exercised its jurisdiction. Consequently, the court dismissed the application for leave to appeal, finding that no substantial miscarriage of justice had occurred.

Orders