Kopsines v For the Riders
[2014] QCATA 306
•3 November 2014
| CITATION: | Kopsines v For the Riders [2014] QCATA 306 |
| PARTIES: | Peter Kopsines (Applicant/Appellant) |
| v | |
| For the Riders (Respondent) |
| APPLICATION NUMBER: | APL370-14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe OAM |
| DELIVERED ON: | 3 November 2014 |
| 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 |
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
Mr Kopsines bought tubeless tyres for his bicycle from For the Riders. About a month later, one of the tyres exploded, destroying the tyre and the rim. Mr Kopsines wanted For the Riders to replace his tyre and rim at no cost because, he said, he was not advised that the tyres could explode. For the Riders refused to replace the tyre and rim, asserting that Mr Kopsines had over-inflated his tyres. Mr Kopsines filed claim in the tribunal for a refund of the cost of the original work plus the replacement costs. He also wanted the tribunal to order that For the Riders ‘never sell this product to any rider as it is not safe’. An Adjudicator of the tribunal dismissed Mr Kopsines’ claim.
Mr Kopsines wants to appeal that decision. He says ‘the judge’ lied in Court against the law and sinned against God. To support that submission, Mr Kopsines points to ten errors on the evidence.
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].
Mr Kopsines has filed fresh evidence with his application for leave to appeal. He has also revisited the evidence before the tribunal. He has included copies of web sites but he does not disclose when the websites were downloaded. He has provided a DVD and USB drive with video evidence which, apparently, responds to some of the learned Adjudicator’s findings.
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 Kopsines 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.
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. If the evidence was already before the learned Adjudicator, then I will find it in the file or the transcript. To the extent that it is new evidence, Mr Kopsines has not explained why this material was not available earlier. Mr Kopsines’ fresh evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Magistrate.
The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[4] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[5]
[4]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125 – 126.
[5]Chambers v Jobling (1986) 7 NSWLR 1 at 10.
Of the ten numbered paragraphs that are described as errors, paragraphs 1, 2 and 3 simply recite uncontroversial facts. At paragraph 4, Mr Kopsines concludes the evidence showed there are many ways a tyre can explode when inflated to the correct pressure. That proposition is not controversial. The point of the learned Adjudicator’s decision was that Mr Kopsines did not provide any evidence that the tyre was defective[6].
[6]Transcript page 1-11, lines 29 – 30.
In paragraph 5 of his submissions, Mr Kopsines takes issue with the learned Adjudicator’s reference to explosives. The learned Adjudicator referred to explosives when making the point that there are some materials that require specific warnings because of their volatility but that Mr Kopsines had not demonstrated that the tyre, or the gel inside, fell into this category. Mr Kopsines understood the analogy at the time.[7] This is not a ground for leave to appeal.
[7]Transcript page 1-6, line 37 to page 1-7, line 13.
Paragraphs 6 and 7 of Mr Kopsines’ submissions amounts to fresh evidence about what amounts to over-inflation of a bike tyre. I have already indicated I will not accept fresh evidence.
Paragraph 8 challenges the learned Adjudicator’s assumption that For the Riders’ tyre pressure gauge was accurate. Mr Kopsines says that the learned Adjudicator had no evidence to support this assumption. Equally, there was no evidence to suggest that it was wrong and Mr Kopsines conducted his case on the basis that the tyre should have been able to withstand 70 psi. There is no error by the learned Adjudicator.
Paragraph 9 of Mr Kopsines’ submissions simply restates his assertion of fact.
Paragraph 10 of Mr Kopsines’ submissions relies on fresh evidence to show that the tyres were an inferior product, compared to his original tyres. That was not part of Mr Kopsines’ original claim. He cannot, on an application for leave to appeal, argue a new ground on new evidence.
The learned Adjudicator dismissed the claim because there was insufficient evidence to support Mr Kopsines’ claim. There is nothing in the transcript to persuade me that the learned Adjudicator should have taken a different view of the facts. There is no evidence that the learned Adjudicator lied to Mr Kopsines. The appeals tribunal does not deal with breaches of morality.
There is no reasonably arguable case that the learned Adjudicator was in error. Leave to appeal should be refused.
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