Kisova v Donny Pask Cars and Motor Cycles
[2013] QCATA 144
•15 May 2013
| CITATION: | Kisova v Donny Pask Cars and Motor Cycles [2013] QCATA 144 |
| PARTIES: | Mrs Adriana Kisova (Applicant/Appellant) |
| v | |
| Donny Pask Cars and Motor Cycles (Respondent) |
| APPLICATION NUMBER: | APL062-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Senior Member |
| DELIVERED ON: | 15 May 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused |
| CATCHWORDS: | MINOR CIVIL DISPUTE – whether applicant able to understand proceedings – whether tribunal should have ordered an interpreter - whether grounds for leave to appeal Queensland Civil and Administrative Act 2009 (Qld), s 137, s 138 Cachia v Grech [2009] NSWCA 232 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined matter on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
On 2 April 2012, Mrs Kisova signed a rent to buy contract with Donny Pask Cars and Motor Cycles for a 1992 Hyundai Excel. She paid a deposit of $800. She was to pay the balance, plus interest, in weekly instalments of $80. Mrs Kisova paid five instalments of $80.
On 18 April 2012, Mrs Kisova returned the car to Mr Pask for repairs. There is a dispute about what happened next but Mrs Kisova filed an application asking the Tribunal to declare her agreement with Mr Pask void. Mr Pask filed a counterclaim for $3,292, the cost of the repairs to the car. The Tribunal ordered Mrs Kisova pay Mr Pask $1,369.23.
Mrs Kisova wants to appeal that decision. She says that, because English is not her first language, she could not understand the learned Adjudicator. She says that she should have asked for an interpreter, or been asked by the Tribunal whether she needed an interpreter. She says she had difficulty explaining Mr Pask’s misleading and deceptive conduct to the learned Adjudicator. Mrs Kisova wants another hearing with the benefit of an interpreter.
One of the matters in dispute at the hearing was whether Mrs Kisova returned the car to Mr Pask on 23 April 2012. Mrs Kisova has now filed a copy of a job card from Nationwide Towing and Transport dated 23 April 2012. It shows the pickup address as Mrs Kisova’s home but shows no drop off address.
The Appeals Tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined[1]. Ordinarily, an application for leave to adduce such evidence must satisfy three tests. Could Mrs Kisova 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?[2]
[1] s 137 and s 138 QCAT Act.
[2] Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.
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. Mrs Kisova did not explain why she did not produce the job card at the earlier hearing. Further, the job card does not tell the whole story. It does not identify the delivery address. It is not an invoice and there is no evidence that the car was, in fact, collected and delivered to Mr Pask. The new evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Adjudicator.
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?[3] Is there a reasonable prospect that the applicant will obtain substantive relief?[4] Is leave necessary to correct a substantial injustice caused by some error?[5] Is there a question of general importance upon which further argument, and a decision of the Appeals Tribunal, would be to the public advantage?[6]
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4] Cachia v Grech [2009] NSWCA 232 at 2.
[5] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[6]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.
I have listened to the transcript of the hearing carefully. Mrs Kisova speaks in accented English and there were times when the learned Adjudicator had to repeat his question to her. But I am not satisfied that Mrs Kisova did not understand the hearing or that she could not communicate with the learned Adjudicator. She read the oath fluently and without assistance[7]. She spoke to the learned Adjudicator, with little interruption, telling her story in a coherent and logical way.[8] A person’s accent is not a useful guide to whether a person can understand the proceedings. Indeed, to suggest otherwise may be disrespectful to many parties who appear before the Tribunal. It is not for the learned Adjudicator to guess whether a party needs a translator, particularly when the person seems to be communicating appropriately. If, contrary to the evidence of the transcript, Mrs Kisova did not understand the learned Adjudicator she should have told him, so that arrangements for an interpreter could have been made.
[7] Transcript at 1:31.
[8] Transcript at 7:32 to 10:10.
Mrs Kisova did not raise the issue of misleading conduct in her application or at the hearing. She has not given the Appeal Tribunal any detail of the allegations and she did not give the learned Adjudicator any evidence that would support a finding of misleading conduct. It is too late to raise that issue on appeal. The evidence is capable of supporting the learned Adjudicator’s findings of fact and I can find no compelling reason to come to a different view.
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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