Gray v O'Connell
[2013] QCATA 294
•21 October 2013
| CITATION: | Gray v O’Connell [2013] QCATA 294 |
| PARTIES: | Miss Mellisa Gray |
| v | |
| Ms Vicki Luan O’Connell |
| APPLICATION NUMBER: | APL294 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 21 October 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1.The Application for leave to appeal is refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - 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
On 5 February 2013, Ms O’Connell’s car was parked on the street at Palm Beach. Ms Miller’s car ran into Ms O’Connell’s car, causing damage. Ms O’Connell filed a claim for the cost of repairs.
In her response, Ms Miller claimed that she was forced into Ms O’Connell’s car because of a collision between her car and a third car driven by Miss Gray. The tribunal joined Miss Gray as a party to the claim.
At the hearing, Ms O’Connell and Ms Miller gave evidence. Miss Gray did not appear. The Adjudicator found that Miss Gray caused the collision and ordered her to pay Ms O’Connell $2,457.58.
Miss Gray wants to appeal that decision. She says that she did not hit Ms O’Connell’s car. She says Ms Miller was at fault, because she was driving too fast. She says that she has no ability to pay Ms O’Connell anything.
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.
The appeals tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[5] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[6] However, the appeal tribunal must exercise its own discretion when considering whether the original decision maker was in error. 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.[7]
[5]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[6]Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[7]Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
The learned Adjudicator knew that Miss Gray thought Ms Miller had been speeding[8]. Ms Miller gave sworn evidence that she was not speeding and he evidence was consistent with the police report. The learned Adjudicator knew that Ms Gray’s car did not hit Ms O’Connell’s car. The learned Adjudicator did not have the benefit of direct evidence from Miss Gray and Miss Gray has not explained why she did not attend the hearing. The learned Adjudicator assessed Ms Miller’s credibility and found her to be honest[9]. The learned Adjudicator did find, as he was entitled, that Miss Gray caused the damage to Ms O’Connell’s car. The evidence supports those findings and there is nothing in the transcript to persuade me that he should have taken a different view of the facts.
[8]Reasons for decision page 3, lines 43-44.
[9]Reasons for decision page 4, line 1.
The fact that Miss Gray has no ability to pay Ms O’Connell is not a relevant factor in the learned Adjudicator’s findings.
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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