Gordon v De Lemos
[2013] QCATA 265
•27 September 2013
| CITATION: | Gordon v De Lemos [2013] QCATA 265 |
| PARTIES: | Mr James Gordon (Appellant) |
| v | |
| Mrs Petronella Albertino De Lemos (Respondent) |
| APPLICATION NUMBER: | APL388 -12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe OAM, Senior Member |
| DELIVERED ON: | 27 September 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 (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
Ms De Lemos is a motor dealer. She agreed to sell Mr Gordon a Citroen C3 Hatchback for $5,400. He paid a deposit of $400. At the hearing, Mr Gordon told the learned Adjudicator that his purchase of the car was subject to a safety certificate. The blower fan resistor was faulty. Mr Gordon submitted that a car could not get a safety certificate if the blower fan was faulty, so the safety certificate was wrong and, therefore, he was not obliged to buy the car. He asked for the deposit to be returned; Ms De Lemos refused. Mr Gordon filed a claim for the return of the deposit. The tribunal refused his claim.
Mr Gordon wants to appeal that decision. He says that the safety certificate issued for the car was faulty and that this gave him grounds to reject the car.
Mr Gordon wants to file fresh material with his application for leave to appeal. He has provided an excerpt from the Transport Operations (Road Use Management – Vehicle Standards and Safety) Regulation 2010. The Regulation is, of course, not evidence but part of Mr Gordon’s submission and I will treat it that way.
Mr Gordon has also provided a copy of the Queensland Transport Code of Practice Vehicle Inspection Guidelines. The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined[1]. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Mr Gordon 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?[2]
[1] QCAT Act ss 137, 138.
[2] Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.
An application for leave to appeal is not, and should not be, an attempt to shore up the deficiencies of a party’s case at the initial hearing. Mr Gordon had a copy of the Regulation prior to the hearing.[3] He had a discussion with a Department of Transport officer[4]. He knew that it important to his case to show that a safety certificate should not issue if the blower fan does not work. Mr Gordon has not explained why this material was not available earlier. The evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Adjudicator
[3] Transcript page 1-6, line 27.
[4] Transcript page 1-11, line 33.
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?[5] Is there a reasonable prospect that the applicant will obtain substantive relief?[6] Is leave necessary to correct a substantial injustice caused by some error?[7] Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?[8]
[5] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[6] Cachia v Grech [2009] NSWCA 232 at 2.
[7] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[8]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.
The appeals tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[9] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[10] 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.[11]
[9]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[10] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[11] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
The learned Adjudicator was not satisfied that that faulty blower fan was a matter covered by the safety certificate. He was entitled to draw that conclusion, as there was no conclusive evidence before him that to say that it was covered by the safety certificate. Mr Gordon has not pointed to any error by the learned Adjudicator. It is simply too late for Mr Gordon to say, “Well, I have that evidence now.” The minor civil disputes jurisdiction of the tribunal is intended to be quick, informal and economical[12]. Unless there is an obvious injustice or lack of procedural fairness, parties simply do not get a second go.
[12] Queensland Civil and Administrative Tribunal Act 2009 (Qld).
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.
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