Khammash v Walker
[2013] QCATA 194
•1 July 2013
| CITATION: | Khammash v Walker [2013] QCATA 194 |
| PARTIES: | Mr Edward Khammash (Appellant) |
| V | |
| Mr Alan Walker t/as Granitgard (Respondent) |
| APPLICATION NUMBER: | APL034 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe OAM, Senior Member |
| DELIVERED ON: | 1 July 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
Mr Walker installed a termite barrier when Mr Khammash’s home was built in 1999. The termite barrier had a 10 year warranty. Mr Khammash detected termite infestation one month before the warranty expired. He engaged a pest controller to remove the termites, treat the house and repair the damage. Mr Khammash contacted Mr Walker one month after the warranty expired, asking for compensation for the termite detection and repair. Mr Walker refused to compensate Mr Khammash so Mr Khammash filed a claim in the tribunal.
The parties appeared before the tribunal on 30 August 2012 but the hearing was adjourned at Mr Khammash’s request. The matter was listed for hearing again on 29 October 2012. This time, Mr Walker asked for an adjournment. In a decision dated 11 October 2012, the tribunal refused his application.
Mr Khammash did not attend the hearing on 29 October 2012 and the tribunal dismissed his application. Mr Khammash wants to appeal that decision. He says that he thought the matter had been brought on and heard on 11 October. He says that he was confused and did not understand the tribunal process.
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.
Mr Khammash has filed a pest inspection report with his application for leave to appeal. The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined[5]. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Mr Khammash 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?[6]
[5] Queensland Civil and Administrative Tribunal Act 2009 ss 137, 138.
[6] Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.
The pest inspection report deals with the extent of termite damage and the possible reasons for termite infestation. This issue was central to Mr Khammash’s case. He could not have succeeded before the original tribunal unless he could demonstrate that Mr Walker breached the 10 year warranty. Mr Khammash should have provided this report to the tribunal. Mr Khammash has provided no explanation as to why this material was not available earlier. For reasons that appear later, I also find that the report would not have an important impact on the result of the case. That evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Adjudicator.
Mr Khammash’s application for leave to appeal was filed out of time. He has not applied for an extension of time. It is apparent from his submissions that he was confused about the process. It is also apparent that he first applied to reopen the proceedings, which application was unsuccessful. These factors are not usually a reason to grant an extension of time.
Mr Khammash does not point to any error by the learned Adjudicator who dismissed the claim. Rather, he wants the chance to be heard. His application is really an appeal against the decision to refuse a reopening, from which there is no appeal[7].
[7] Queensland Civil and Administrative Tribunal Act 2009 s 139(5).
The appeals tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[8] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[9] 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.[10]
[8]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[9] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[10] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
I have considered the material filed. Mr Khammash provided no evidence to support his claim. The report that Mr Khammash filed late shows a number of reasons why the termite barrier may have been breached, none of which was in Mr Walker’s control. Mr Khammash did not make a claim on Mr Walker within the 10 year warranty period. He did not give Mr Walker an opportunity to inspect the house or rectify the damage. The learned Adjudicator was entitled to dismiss Mr Khammash’s claim. There is nothing in this file that persuades me that the learned Adjudicator should have taken a different view of the facts.
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.
0