Gemview Jewellery v Florian Stafleu
[2011] QCATA 276
•29 September 2011
| 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 Georgalis v Andonaras (1993) 113 FLR 196 |
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, he asks the tribunal to consider including interest which the Member who decided the proceeding declined to order. As there is no cross-appeal, the question of interest is not further considered.
Both parties were advised that the application for leave to appeal, and if successful, the appeal, will be determined on the papers and have had the opportunity to provide submissions.
The Legal Considerations
Leave is required to appeal the decision under section 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act) because the original decision involves a minor civil dispute. The intended appeal, if leave is granted, is on a question of fact and law.
Leave to appeal will ordinarily be granted when a question of general importance upon which further argument and a decision of the Appeal Tribunal is to public advantage;[1] there is a reasonably arguable case that the primary decision-maker made an error[2] and there are reasonable prospects that the applicant would be granted orders in its favour;[3] or to correct a substantial injustice to the applicant caused by error.[4]
[1]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578 and 580.
[2] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[3] Cachia v Grech [2009] NSWCA 232, [13].
[4] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
A finding of fact will generally not be disturbed on appeal if the evidence before the tribunal supports the inferences drawn and facts found.[5]
[5] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 355 (Mason CJ).
Under section 147(2) of the QCAT Act, an appeal on a question of fact and must be decided by way of rehearing. The Appeal Tribunal may make its decision with or without the hearing of additional evidence, as it sees fit. Accordingly, the parties to the appeal are not entitled as of right to adduce additional evidence on the hearing of the appeal, although the Appeal Tribunal may, in its discretion, admit additional evidence.
The appeal jurisdiction is not generally the proper forum to receive evidence on disputed facts.[6] There is a public interest in the finality of litigation.[7] Generally for additional evidence to be admitted, it must be shown that the additional evidence sought to be relied upon at appeal was not available and could not have been obtained with reasonable diligence for use at the hearing; that it is highly probable that if admitted there would be a different result; and that it is credible.[8]
[6]See discussion in Georgalis v Andonaras (1993) 113 FLR 196; Doherty v Liverpool District Hospital (1991) 22 NSWLR 284.
[7] Warr v Santos [1973] 1 NSWLR 432, 440; and R v Bayliss [2002] NSWCCA 11.
[8] Cicic v Snowy Mountains Hydro-Electric Authority [1964-65] NSWR 178.
The High Court of Australia recently observed ‘resolution of disputes serves the public as a whole, not merely the parties to the proceedings’.[9] Therefore, parties must take care in their dealings in tribunal matters and act in their own interests throughout the conduct of the proceeding. Specifically, the QCAT Act places obligations on the parties themselves to act quickly in their dealings with a proceeding.[10]
Decision
[9]Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 217.
[10] QCAT Act, s 45.
The submissions of Gemview Jewellery effectively reargue the case made by it at the hearing and assert the untruthfulness of Mr Staflau. Gemview contends that the reason for the tribunal’s error is Mr Staflau’s untruthfulness. The submission concedes that the case was not fully prepared for the hearing ‘due to many other business engagement’ (sic). The document said to have been located since the hearing, is not said to have been unavailable at the time of the hearing.
Mr Staflau’s submissions address the claims as made and refer to some perceived inconsistencies in the grounds of appeal.
Parties are expected to act in their own interests and to present their case at hearing. The appeal process is not for rearguing the case: it is for correcting errors made in the decision of the tribunal. My sole duty is to determine whether there is an error in the primary decision. It is not my task to decide where the truth lay as between the competing versions given by the parties.[11] Gemview has not identified an error in the tribunal’s reasoning.
[11] Fox v Percy (2003) 214 CLR 118 at 129 per Gleeson CJ, Gummow and Kirby JJ.
The document said to have been subsequently located is not a document that was not reasonably available at the hearing date. On Gemview Jewellery’s submissions, it was simply under-prepared for the hearing. Therefore, there is no basis for any further evidence to be admitted.
In the circumstances, there are no grounds which justify the granting of leave to appeal. The application for leave to appeal is therefore dismissed.
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