Ivan Mohorovic v Lowrys Auto Body Repairs
[2022] QCATA 152
•26 October 2022
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Ivan Mohorovic v Lowrys Auto Body Repairs [2022] QCATA 152
PARTIES:
Ivan Mohorovic (applicant/appellant)
v
IJ & HA lowry pty ltd t/as lowrys auto body repairs (respondent)
APPLICATION NO/S:
APL262-21
MATTER TYPE:
Appeals
DELIVERED ON:
26 October 2022
HEARING DATE:
25 October 2022
HEARD AT:
Brisbane
DECISION OF:
Judicial Member Forrest SC
ORDERS:
1. The application for leave to appeal is dismissed.
CATCHWORDS:
APPPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – OTHER MATTERS – OTHER CASES – where the Applicant seeks leave to appeal a decision by a Magistrates sitting as a Tribunal Member in a minor civil dispute – where leave is refused
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – FILING DOCUMENTS AND ACCESS THERETO – where the acting Magistrate did not let parties rely on evidence filed at the last moment before the hearing – whether the acting Magistrate erred at law in deciding not consider the late filed evidence – where the evidence, had it been considered, would not have led to an outcome the Applicant submitted that it would
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 4, s 28, s 142(3)(a)(i)
Pickering v McArthur [2005] QCA 294
APPEARANCES & REPRESENTATION:
Applicant:
Mr Mohorovic by telephone
Respondent:
Mr Lowry by telephone
REASONS FOR DECISION
This is an application for leave to appeal and, if granted, an appeal against the orders of an acting Magistrate sitting as the Tribunal at first instance in a minor civil dispute.
The dispute the subject of this application arises out of some repair work the Respondent did on a motor vehicle owned by the Applicant. The Applicant’s motor vehicle suffered some damage at the hands of a neighbour’s child. He took it to the Respondent and accepted the Respondent’s quote to undertake the requested repair work. He delivered the vehicle to the Respondent’s workshop and some days later collected it. Though it was agreed that the vehicle would need to be brought back again for the replacement of a wrong-sized fitting that the Respondent had been sent, with a new one being ordered but not yet received, the Applicant apparently accepted the vehicle at the time he took it.
When he returned the vehicle as arranged, the Applicant pointed out some matters to the Respondent that he was unhappy about in connection with repair work that had been undertaken. The Respondent, though not conceding that the repair work had not been done to a satisfactory standard, agreed to undertake some remedial work. The right-sized fitting which had arrived in the meantime was also fitted.
The Applicant took the vehicle away and then returned it a third time, asserting again that the Respondent had not repaired the car to a satisfactory standard and had also damaged the vehicle slightly during repair. Unhappy with the Applicant’s approach, the Respondent’s Mr Lowry told him that the Respondent would pay for the Applicant to have some windows retinted and for a small scratch or dent repaired, but that the Applicant was to take the vehicle elsewhere to have that work done and not bring it back to the Respondent again.
The Applicant complained to the Office of Fair Trading and, eventually, some six months after the dispute first arose, commenced proceedings in this Tribunal in its minor civil dispute jurisdiction. He filed that application on 6 July 2021.
The Applicant claimed several thousand dollars was owed to him so that he could pay for the repairs that he asserted needed to be done consequent to the work done by the Respondent. He filed his supporting evidence with his application and it was served on the Respondent soon after filing in early July 2021. The Respondent filed its evidence in response in early August 2021. Mr Lowry maintained his willingness to pay for some window tinting and the small scratch or dent, without admission that the Respondent was actually liable for it.
The matter was referred to mediation which did not result in resolution and it was then listed for a hearing on 1 September 2021.
A few working days prior to the hearing, the Applicant filed some further evidence that he had obtained. It included some documents from another smash repairer and a window tinting business. They were only served on the Respondent one or two days before the hearing at the most. That is not in dispute.
The Respondent then sought to file some additional evidence just before the hearing but it did not go to the evidence the Applicant had just filed but raised some new issues.
The acting Magistrate heard the matter on 1 September 2021. He informed the parties that although he had looked at the material that had been filed by each of them in the few days prior to the hearing, he would not be taking any of that evidence into account in determining the matter. The clear implication was that he considered it unfair to allow the parties to rely upon evidence filed at the last moment before the hearing. The acting Magistrate plainly considered that did not give the other party sufficient time to respond to the material that they were served with, so as to allow it to be relied upon as evidence in the matter.
A few minutes after hearing the matter, the acting Magistrate made and gave his decision. Relevantly, he said:
Both applicant and respondent have put forward various items of evidence. There is insufficient evidence for me to make a finding in regard to the full claim of the applicant. That would require a lot more evidence than there is before this court.
The acting Magistrate then made an order that the Respondent pay the Applicant the sum of $820.40 within one month, on the basis that Mr Lowry had always maintained a willingness to pay the Applicant that amount to cover re-tinting and a small body repair, without admission as to liability.
Unsatisfied with that decision, the Applicant filed an application for leave to appeal.
In short, the Applicant asserts that the acting Magistrate erred by disregarding the evidence that he, the Applicant, had filed a few days before the hearing. His argument is that had the acting Magistrate considered the evidence he would have decided the case in the Applicant’s favour. His application for leave to appeal was not put on any other grounds than that.
Leave to Appeal
Given this is an appeal from a decision made in the Tribunal’s minor civil dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.[1]
[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i)
Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.[2]
[2]Pickering v McArthur [2005] QCA 294
I am, with respect to the Applicant, not persuaded by his submissions that there has been a substantial injustice done to him or that there is a reasonable argument that the acting Magistrate erred at law in a way that demands correction on appeal.
At the hearing before me, the Applicant conceded that the acting Magistrate had decided not to consider the late-filed evidence from both sides because he did not consider it fair to each of the parties for late evidence from each of them to be considered in the case. That said, the transcript nevertheless reveals that the acting Magistrate had looked at the late-filed evidence and actually considered that one of the pieces of documentary evidence that the Applicant had filed late did not really help him make out his case in any event.
At the hearing before me, in response to some questions I asked him, the Applicant informed the Tribunal that he had filed the further evidence in addition to the evidence that he had initially filed in support of his claim because he had realised the evidence he had filed at the outset was pretty weak, even though he had thought it would have been enough at the time he had filed it. When he filed the later evidence, he was acutely aware that the hearing was on within a few days but, he was trying hard to get the extra evidence in to bolster his case prior to the hearing. He knew the timing was tight.
At the hearing before me, he submitted that despite the lateness of filing the evidence, the acting Magistrate should have let the evidence in and considered it and that, if he had, it “would have given a different decision”.
The Respondent, in response, submitted that it was the correct decision made by the acting Magistrate not to consider the late material as he would have been able to get evidence in response had he had time. He submitted, in answering one of my questions, that he had demonstrated that by having one of the persons who had provided the Applicant with one of the documents he had filed late “recant” from what he had said in that document since the hearing last year. Had he had adequate notice before the hearing, he submitted, he would have been able to get that then.
With respect to the Applicant, there is merit in the submission of the Respondent. I am not persuaded that the acting Magistrate erred at law when he determined not to consider the late filed evidence. Furthermore, in the circumstances, I am not persuaded that the Applicant’s late filed evidence, had it been considered, would have led to the outcome that the Applicant submitted before me that it would. Accordingly, I am not persuaded that an injustice has been done to him that could only be rectified by granting leave to appeal.
I refuse to grant leave and dismiss the Applicant’s application.
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