Ison v Brachman
[2011] QCATA 38
•28 February 2011
| CITATION: | Ison v Brachman [2011] QCATA 38 |
| PARTIES: | Maureen Ison (Applicant/appellant) |
| v | |
| Ligaya Brachman (Respondent) |
| APPLICATION NUMBER: | APL352-10 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 28 February 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – whether Magistrate in error – where verbal loan agreement – where Magistrate allowed documentary evidence – where Magistrate accepted statement of a witness Queensland Civil and Administrative Tribunal Act 2009, s 142(3) |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
The parties agree that Ms Ison borrowed $2,000 from Ms Brachman in three instalments: $1,000 in September 2009, and two loans of $500 each in March 2010. Ms Brachman says that Ms Ison did not repay the loans. Ms Ison says that the money was repaid.
The dispute went to a hearing before a Magistrate, sitting in QCAT’s Minor Civil Disputes jurisdiction, on 15 November 2010. He preferred Ms Brachman’s account and ordered that Ms Ison pay Ms Brachman $2,000. Ms Ison has appealed that decision.
Because this is an appeal from a minor civil dispute, leave is necessary: s 142(3) QCAT Act.
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 to the applicant caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the appellate court or 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 [13].
[3] QUYD Pty Ltd v Marvass Pty Ltd (supra).
[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.
Ms Ison says that the learned Magistrate erred because:
a) There is no evidence as to when the loan was to be repaid.
b) A verbal loan agreement breaches Australian law. The tribunal should have been aware of that fact and refused to issue the proceedings.
c) The statement of Ms Ward, tendered in evidence before the learned Magistrate, was obtained after the proceedings were issued and, therefore, was a fabrication.
d) Ms Ison has repaid the loans but Ms Brachman refused to issue receipts.
e) The documents produced to the learned magistrate had not been authenticated.
f) The learned Magistrate did not listen to Ms Ison’s submissions.
Ms Ison’s submissions show she has misconceptions about the way that QCAT proceedings are conducted. It is not the task of the tribunal, when issuing proceedings, to determine whether the claim can be substantiated. That is a matter to be determined at the hearing. Once the tribunal is satisfied that it has jurisdiction to hear the dispute, it cannot refuse to issue proceedings because of a breach of law. That, again, is a matter that the parties must debate at the hearing.
There is nothing in the QCAT Act requiring a party to file all of the material upon which they may rely in support of their claim with the application. It is common for parties to bring statements and other documents on the day of the hearing. The learned Magistrate read Ms Ward’s statement to Ms Ison during the hearing. He referred Ms Ison to the documents evidencing the loan and asked her if she had signed them. Ms Ison agreed that she had signed the loan documents. She did not, at the hearing, argue that any of the documents were fraudulent. She cannot ask the Appeal tribunal to make a finding on those matters now.
Ms Ison has provided the Appeal tribunal with further material and arguments, all of which should have been advanced before the learned Magistrate. She asserts that she did not raise these arguments at the hearing because the Magistrate did not give her the opportunity to do so.
I have read the transcript of the hearing. It is true that it was a relatively speedy hearing, but that is unsurprising. The Minor Civil Disputes jurisdiction is a busy and demanding one, and parties are often given a strict time limit in which to present their cases. I note, however, that the learned Magistrate specifically asked Ms Ison whether there was anything else she wanted to tell him and her reply was “That’s fine”.[5] I am satisfied that the learned Magistrate gave Ms Ison ample opportunity to put her case to him and that her claims of being denied the chance to do so are groundless.
[5] Transcript, page 10, line 35.
The learned Magistrate preferred the evidence of Ms Brachman. Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[6] I am satisfied that there was sufficient material to support the learned Magistrate’s conclusions, and there is no reason to disturb his findings of fact.
[6]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 197 ALR 201 at 207, 208.
There is no question of general importance upon which a decision of the appeal tribunal would be to the public advantage; there is no reasonably arguable case of error in the learned Magistrate’s decision; there is no reasonable prospect that Ms Ison would obtain further substantive relief nor is leave necessary to correct a substantial injustice.
I understand that Ms Ison feels aggrieved by the learned Magistrate’s decision. That is not the test. There is no discernible error on his part. Leave to appeal should be refused.
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