Laker Paint Company Pty Ltd v Bray

[2013] QCATA 90

CITATION:	Laker Paint Company Pty Ltd v Bray [2013]
QCATA 90
PARTIES:	Laker Paint Company Pty Ltd
(Applicant/Appellant)
V
Mr Warren Bray
(Respondent)
APPLICATION NUMBER:	APL094 -12
MATTER TYPE:	Appeals
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Peta Stilgoe, Senior Member
DELIVERED ON:	18 March 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 Fox v Percy (2003) 214 CLR 118 Chambers v Jobling (1986) 7 NSWLR 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Cachia v Grech [2009] NSWCA 232
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
Clarke v Japan Machines (Australia) Pty Ltd
[1984] 1 Qd R 404

[1]    Laker Paint Company Pty Ltd supplied Mr Bray with thermal insulation paint. He applied it to his roof but, in a matter of months, it started to flake. He asked Laker for compensation. Laker offered to supply more paint, although not enough to repaint the whole roof. Mr Bray refused the offer and filed a claim for the cost of repainting the roof.

[2]     The tribunal listed the dispute for mediation. Laker did not appear so an adjudicator heard the matter and ordered that Laker pay Mr Bray the full amount of his claim.

[3]     Laker applied to reopen the matter. The tribunal dismissed the application.

Laker wants to appeal the tribunal‟s decision. It says that it was not properly served. It also disputes the learned Adjudicator‟s findings of fact.

[4]    It is not clear whether Lake is appealing the decision to reopen or the original decision. If it is appealing the decision to reopen, then the appeals tribunal has no jurisdiction. Section 139(5) of the Queensland Civil and

Administrative Tribunal Act 2009 states that the tribunal‟s decision on a

reopening application is final and cannot be the subject of appeal.

[5]     If Laker is appealing the original decision then, 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]

[2]

[3]

[4]

[6]    Laker has filed new evidence in support of its 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 Laker 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]

[6]

[7]     Laker applied to reopen the matter on the grounds that its principal, Ms Rhall, had entered the wrong date into her diary. She now says that she was not properly served with the application. The learned Adjudicator satisfied himself[7] that Laker was properly served. Laker cannot now rely on its own failure to appear as a reason to provide new evidence to the tribunal at this late stage.

[7]8            Transcript page 7.

[8]    I have examined the new evidence. It revisits issues that the learned Adjudicator addressed in his reasons for decision. It will not have an important impact on the result of the case. The evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Adjudicator.

[9]     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

10

conclusion.

[9] 

[10]  The learned Adjudicator understood Laker‟s submissions. He challenged

Mr Bray[11]on those specific issues. He found that Mr Bray diluted only a small portion of the paint.[12] He found that the solvent based zinc chromate

primer was “deemed suitable” at the time of application, in late 2008. The

learned Adjudicator‟s conclusions can be supported by the evidence and

there is nothing in the transcript that persuades me he should have taken a

[11] 

[12] 

different view of the facts.

[11]  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.

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

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

Cachia v Grech [2009] NSWCA 232 at 2.

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

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.

ss 137 and 138 QCAT Act.

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.

Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at
125-126.

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.

Transcript page 3.

Transcript page 6.