Laidlaw v Venturi

[2018] QCATA 143

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Laidlaw v Venturi  [2018] QCATA 143

PARTIES:

GRAHAM BREBNER ANDREW LAIDLAW
 (appellant)

v

KAREN VENTURI

(respondent)

APPLICATION NO:

APL032-18

ORIGINATING APPLICATION NO/S:

MCDO 98 of 2017 (Caboolture)

MATTER TYPE:

Appeals

DELIVERED ON:

28 September 2018

HEARING DATE:

26 September 2018

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes, Member

ORDERS:

The application for leave to appeal is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPLICATION FOR LEAVE TO APPEAL – GENERAL PRINCIPLES – nature and limitations of applications for leave to appeal – supply of goods by wholesaler – whether sale or on approval – whether claim barred by limitation period – whether claim liquidated – whether terms of agreement uncertain – whether onus of proof discharged

Queensland Civil and Administrative Appeals Tribunal Act (Qld) sections 10, 32, 142(3)

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Coulton v Holcombe (1986) 162 CLR 1
Devries v Australian National Railways Commission (1993) 177 CLR 472
Ferguson Ex parte; Re Alexander (1944) 45 SR (NSW) 64
Fox v Percy (2003) 214 CLR 118http://
Kagin Holdings Pty Limited v Lagazo  [2018] NSWSC   1271
Mathiesen v Lawson [2018] QSC 154
Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611
Robinson v Corr [2011] QCATA 302
Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014
Snell v Morgan [2011] QCATA 316
Thompson & Anor v Jedanhay Pty Ltd [2012] QCATA 246
W (an infant) In Re [1971] AC 682
White Industries (Qld) Pty Ltd v Flower and Hart (a firm) [1998] FCA 806

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

The matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

Background

1. At the relevant times the appellant was a wholesale merchant, and the respondent was a retailer dealing in such desiderata as crystal rhythms, reiki earth vibrations, hair pins, pendants, bracelets and pyramids. It appears a business relationship between the parties commenced about 2007. The appellant states that he supplied goods to the respondent on a `sale or return’ basis.[1]

   [1]Transcript of  hearing 7 December 2017 (“T”) page 7 line 37.

2. On 27 July 2017 the appellant began Minor Civil Dispute proceedings against the respondent, claiming amounts of $11,044.25 and $763.70 for goods neither returned nor paid for.[2] The Response is a simple denial of liability.[3]

   [2]T 27 line 9.

   [3]Response filed 22 August 2017. See also T 41 line 31.

3. The matter was heard on 7 December 2017, when the Adjudicator dismissed the claim. The appellant now seeks to have that decision set aside.[4] Leave to appeal is required.[5]

   [4]Application for leave filed 2 February 2018.

   [5]QCAT Act s 142(3).

   Grounds of Appeal

4. The application for leave alleges that:

   The Member has mistakenly applied the law to the facts of the case in not accepting that the respondent took goods on account and failed to pay in full for goods sold by her to third parties. The Member has mistakenly applied the law in not recognising that the statute of limitation runs from her refusal to pay[6] which is within the statutory period of 6 years.

   [6]Date of refusal not particularised.

5. The learned Adjudicator envisaged three threshold objections to the claim, namely the statute of limitations, a doubt as to whether the claim was liquidated,[7] and an apparent lack of certainty in the terms of the alleged agreement.[8] However, for reasons about to be given, those questions are academic, and, as such, need not now be explored.

   [7]As required by QCAT Act s 10(4)(a).

   [8]T 42 line 18.

   Finding on Onus Crucial

6. The  crux of the primary decision is to be found in these extracts from the Adjudicator’s reasons for his decision:

   Even accepting that there could be a liquidated demand ... [and] even accepting that the demand for money is a demand where the cause of action occurred within six years, the tribunal is still confronted with a situation ... where the parties directly contradict one another ... [as to] whether goods were delivered or ... received on consignment.[9]

   [9]T 43 line 28 ff.

7. And further[10]:

   The burden of proof rests firmly with a party that makes an allegation[11] ... Where the tribunal is confronted with a situation where there is directly contradictory evidence, [and] nothing ...contains sufficient weight to separate the parties, the application must, of course, fail – not necessarily for the jurisdictional question or the lack of certainty of terms, but [because] ... there has been a failure in ... satisfying the burden of proof on the balance of probabilities. Therefore the application must be dismissed.

   [10]T 44 lines 21-24, 37-44.

   [11]Ex parte Ferguson; Re Alexander (1944) 45 SR (NSW) 64.

8. In short, the Adjudicator found, on the evidence, and on his assessments of credit, that the appellant’s case was not made out. It is this finding upon which the decision turned, and it is not challenged in the application for leave.[12] As to the appellant’s credit, the Adjudicator may have noted the appellant’s allegation of `numerous’ perjuries by the respondent.[13] Such allegations are a depressing feature of too many submissions to the tribunal by disappointed or contradicted parties. Fraud should never be alleged without cogent evidence and full particulars.[14] Swingeing, unsupported allegations of perjury scarcely enhance the credit of the party who makes them.

   [12]See paragraph [4], above.

   [13]Affidavit of respondent sworn 28 March 2018 page 1.

   [14]White Industries (Qld) Pty Ltd v Flower and Hart (a firm) [1998] FCA 806; Kagin Holdings Pty Limited v Lagazo [2018] NSWSC 1271 at [9]; Mathiesen v Lawson [2018] QSC 154 at [11].

   Nature and Limitations of an Application for Leave

9. It is desirable to explain the nature and the limitations of an application for leave to appeal. The need to obtain leave[15] reflects a legislative policy that primary decisions of the tribunal, particularly in minor civil disputes, should normally be final. Neither a leave application nor an appeal is an opportunity for a retrial. The trial is not merely a `preliminary skirmish’.[16] An appeal is not an occasion to repeat or reargue evidence rejected by the first tribunal, or to present material that could have been put before it, but was not.[17]

   [15]QCAT Act s 142(3)(a)(i).

   [16]         Coulton v Holcombe (1986) 162 CLR 1 at 7 (per Gibbs CJ, Wilson, Brennan and Dawson JJ).

   [17]Snell v Morgan [2011] QCATA 316 at [10]; Thompson & Anor v Jedanhay Pty Ltd [2012] QCATA 246 at [28].

10. It is not nearly enough for an applicant to express disappointment, or a subjective feeling that justice has not been done.[18] The onus is on the applicant to demonstrate some arguable error of law causing a substantial injustice, or that the tribunal acted in flagrant disregard of evidence clearly established, or has reached a conclusion that is glaringly improbable.[19]  It is not appellable error to prefer one version of the facts to another, or to give less weight to one party’s case than he or she thinks it deserves. Findings of fact will not be disturbed if they have rational support in the evidence, even if another reasonable view is available.[20] An appeal tribunal may not simply substitute its own view for that of the primary decision-maker. Where reasonable minds may differ, a decision is not erroneous simply because one conclusion has been preferred to another possible view.[21]

    [18]Robinson v Corr [2011] QCATA 302 at [7].

    [19]Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 per Brennan, Gaudron and McHugh JJ.

    [20]Fox v Percy (2003) 214 CLR 118 at 125-126.

    [21]Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at

    [131]; In Re W (an infant) [1971] AC 682 at 700; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1025; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151.

11. The assessment of credit and weight of evidence, in relation to the onus of proof, was the prerogative of the Adjudicator as judge of fact. That is his task. There is no legal error in making such a decision with which other reasonable minds may differ. It cannot fairly be said that the present finding on onus of proof is unreasonable, let alone glaringly improbable.

    Resolution

12. The appellant has not demonstrated any appellable error[22] in the proceedings below, nor do I discern any. There was evidence upon which the primary tribunal could reasonably reach the conclusion that it did, and accordingly it is not for this tribunal to interfere. The application must be dismissed.

    [22]As explained in paragraphs [9] – [10], above.

    ORDER

13. The application for leave to appeal is dismissed.