Gidlow v Peck
[2013] QCATA 171
•17 June 2013
| CITATION: | Gidlow v Peck [2013] QCATA 171 |
| PARTIES: | Miss Stacey Gidlow (Applicant/Appellant) |
| V | |
| Mrs Helene Peck (Respondent) |
| APPLICATION NUMBER: | APL138 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Senior Member |
| DELIVERED ON: | 17 June 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | MINOR CIVIL DISPUTE – whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549 Chambers v Jobling (1986) 7 NSWLR 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 |
APPEARANCES and REPRESENTATION:
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
Mrs Peck provides hair removal treatments. Miss Gidlow received eight treatments at a cost of $1,440. She says the treatments did not work so she brought a claim for a refund of $1,440. The tribunal dismissed her claim.
Miss Gidlow wants to appeal that decision. She says that the learned Member wrongly relied on the fact that Miss Gidlow signed a consent form that included a “no guarantee” statement. She questions the validity of the witness’s signature to that document. Miss Gidlow makes submissions about offers to settle that occurred prior to the hearing. Miss Gidlow says that Mrs Peck’s treatments were unsuitable.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?[4]
[1] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2] Cachia v Grech [2009] NSWCA 232 at 2.
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
Miss Gidlow has filed fresh evidence with her application for appeal. At the time of the hearing, Miss Gidlow had been to two other hair removal salons. She was waiting for the results of patch tests and advice as to whether she was a suitable candidate for the particular treatment. She now has those results and says that this evidence confirms that Mrs Peck’s treatments were ineffective.
The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined[5]. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Miss Gidlow have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?[6]
[5] ss 137 and 138 QCAT Act.
[6] Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.
Miss Gidlow had a patch test done on 19 February. She knew that it would take a few days to receive the results but she did not ask the learned Member to adjourn the hearing so that the results could be available. With reasonable diligence, Miss Gidlow could have obtained that evidence prior to the hearing. Miss Gidlow filed her application in December 2012. She had time to arrange an alternative treatment so that the evidence was available for the hearing and there is no reason why she left it until just before the hearing.
Miss Gidlow’s submissions also purport to be evidence of the conditions under which she signed the consent form. The learned Member asked Miss Gidlow about the circumstances of signing the consent.[7] Miss Gidlow had the opportunity to give this evidence, but she did not. These submissions are materially different from the evidence Miss Gidlow gave at the hearing. The submissions have not been tested by cross-examination or by the learned Member’s questions. It should not be admitted.
[7] Transcript at page 4, line 44; page 10, line 25 – 26.
For the reasons that follow, the fresh evidence will not have an important impact on the learned Member’s findings on that point. The evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Member.
The appeals tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[8] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[9] 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.[10]
[8]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[9] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[10] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
I have read the transcript carefully. Miss Gidlow signed a consent form in which she acknowledged that: the treatment may not work; that she had received a thorough, informative consultation; she had the opportunity to ask questions; and all her questions were answered to her satisfaction. She was aware of the legal implications of signing a consent form.[11] The learned Member found that Miss Gidlow freely entered into a contract for which there was no guaranteed success and, therefore, Miss Gidlow was not entitled to a refund. The learned Member’s conclusions are supported by the evidence and I can find no compelling reason to come to a contrary view.
[11] Transcript page 11, lines 23 -25.
I do not understand Miss Gidlow’s second ground of appeal. The learned Member was aware that some settlement offers had been made so she gave the parties one last opportunity to resolve the dispute without a decision from the tribunal. The parties did not resolve the dispute; therefore, the terms of any settlement discussions are irrelevant.
Miss Gidlow gave evidence at the hearing that there is a more effective treatment, or that other salons may be able to produce a better result.[12] However, the learned Member noted Miss Gidlow’s Facebook entries and emails, which suggested that, initially at least, Miss Gidlow was very happy with Ms Peck’s service. The learned Member accepted those entries at face value. I have no reason to disagree with the learned Member’s findings.
[12] Transcript page 9.
There is no question of general importance that should be determined by the appeals tribunal. There is no reasonably arguable case that the learned Adjudicator was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.
0