Hooper v Klaka

[2015] QCATA 32

CITATION: Hooper v Klaka [2015] QCATA 32

PARTIES:	Garry Douglas Hooper (Applicant/Appellant)
v
Liz Klaka (Respondent)

APPLICATION NUMBER: APL481-14

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member Stilgoe OAM

DELIVERED ON: 2 March 2015

DELIVERED AT: Brisbane

ORDERS MADE: 1.    Leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – whether grounds for leave to appeal

Dearman v Dearman (1908) 7 CLR 549
Waterford v The Commonwealth (1987) 163 CLR 54
Australian Broadcasting Commission v Bond (1990) 170 CLR 321
Fox v Percy (2003) 214 CLR 118
Pickering v McArthur [2005] QCA 294
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404
Chambers v Jobling (1986) 7 NSWLR 1

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. Mr Ekland was an elderly gentleman who lived in a caravan park. He had a series of dogs as pets to keep him company. He bought Izzy as a pup. In 2009, shortly after Izzy joined him, Mr Ekland was hospitalised. He never went back to the caravan park. Izzy had to find a new home.

2. Ms Klaka was Mr Ekland’s friend. She arranged for Izzy to stay with Mr Hooper. Some time later, Mr Hooper wanted compensation for money he spent on Izzy. In 2014, he filed a claim for compensation against Ms Klaka.

3. Two Justices of the Peace, sitting in the minor civil disputes jurisdiction of the tribunal, heard but dismissed Mr Hooper’s claim.  Mr Hooper wants to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]

   [1]QCAT Act, s 142(3)(a)(i).

   [2]Pickering v McArthur [2005] QCA 294 at [3].

1. Mr Hooper filed a statement of Terry Davenport in support of his application for leave to appeal. Ms Davenport states that she witnessed conversations about the cost of keeping Izzy.

1. The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Mr Hooper 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?[3]

   [3]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.

1. 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. At the hearing, the learned Justices asked the parties whether they had any witnesses.[4] Mr Hooper said he did not. Whether or not there was an agreement between Mr Hooper and Ms Klaka, and the terms of any agreement, was a central question for the learned Justices. If Mr Hooper had a witness to relevant conversations, it was essential that the witness be present to give evidence. Mr Hooper has not explained why he did not bring this witness to the hearing.

   [4]Transcript page 1-4, lines 32 – 40.

2. In any event, the statement will not have an important impact on the result of the case. Ms Davenport’s evidence is to the effect that Ms Klaka was acting as Mr Ekland’s agent. It does not support a view that Ms Klaka intended, or represented to Mr Hooper, that she would be personally responsible for any of Izzy’s costs.  That evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Justices.

1. Mr Hooper does not point to any error by the learned Justices. Instead, he points to inconsistencies in the evidence which, naturally, favour his claim. The appeal 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] 

   [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.

1. The learned Justices heard two version of events. They had to decide which of the versions was more likely. Mr Hooper had the task of persuading the learned Justices that he did have an agreement with Ms Klaka. The learned Justices were not so convinced. There is no error of law simply in making a wrong finding of fact unless there is no evidence to support that finding[7]. I have read the transcript and considered the material filed. The evidence can support the learned Justices’ findings and there is nothing in the transcript to persuade me that the learned Justices should have taken a different view of the facts.

   [7]Waterford v The Commonwealth (1987) 163 CLR 54 at 77; Australian Broadcasting Commission v Bond (1990) 170 CLR 321 at 341.

1. There is no reasonably arguable case that the learned Justices were in error. Leave to appeal should be refused.