Law v Thornley
[2010] QCATA 114
•17 December 2010
| CITATION: | Law v Thornley [2010] QCATA 114 |
| PARTIES: | Mr William John LAW (Applicant/Appellant) |
| v | |
| Mr Gilbert Thomas THORNLEY (Respondent) |
APPLICATION NUMBER: APL180 -10
| MATTER TYPE: |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Justice Alan Wilson, President |
DELIVERED ON: 17 December 2010
DELIVERED AT: Brisbane
ORDERS MADE: | Leave to appeal is refused |
| CATCHWORDS : | MINOR DEBT CLAIM – FINDINGS OF FACT – LEAVE TO APPEAL – where Magistrate ordered appellant to pay to the respondent unpaid debts – where the appellant alleges the decision is incorrect – whether any error of fact – whether leave should be granted Queensland Civil and Administrative Tribunal Act 2009, ss 28(2), 142(3) Chambers v Jobling (1986) 7 NSWLR 1, cited Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, applied Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435, applied Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 197 ALR 201, applied Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, applied |
APPEARANCES and REPRESENTATION:
This matter was heard on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
The parties have a lengthy history of personal and business dealings and, for the most part, appear to have remained on good terms. Relations soured, however, following certain transactions that eventually led Mr Thornley to commence proceedings in QCAT’s Minor Civil Dispute jurisdiction against Mr Law for recovery of unpaid debts.
There were two separate claims: the first relates to an agreement between the parties for the sale of mangoes, picked by both Mr Law and Mr Thornley, which were consigned through one company and sold to another, for which payment (by the second company) was made to Mr Law; the second concerns a personal loan made by Mr Thornley to Mr Law which allegedly remained outstanding.
The matter was heard and decided by a Magistrate acting as a QCAT Adjudicator. The transcript of the hearing shows that both parties gave oral evidence on oath, and each submitted documentary evidence. On the evidence before him the learned Magistrate was satisfied that Mr Thornley had made out his claims, and Mr Law was ordered to pay the amount said to be owing, plus the QCAT filing fee.
Mr Law now seeks to leave to appeal that decision. Leave is necessary: Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), s 142(3)(a)(i). By order of this Appeal Tribunal it was directed that the application for leave to appeal be determined by written submissions according to a timetable, and both parties have delivered and exchanged submissions.
Leave to appeal is ordinarily granted where there is a reasonably arguable case of error in the primary decision and leave is necessary to correct a substantial injustice to the applicant caused by that error[1]; and where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage[2].
[1]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 at [6]
[2]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 Law does not contend that the learned Magistrate committed any error of law or fact on the evidence before him; rather, he argues that the decision is incorrect because there is new evidence to refute both of Mr Thornley’s claims.
Ordinarily, new evidence will only be allowed in an appeal if it could not, by reasonable diligence, have been obtained for the original hearing; is credible; and, might have produced an opposite result[3]. Mr Law did not offer any explanation why the new evidence was not made presented at the hearing. By order of QCAT’s Deputy President her Honour Judge Kingham on 18 October 2010 his request to introduce new evidence was refused.
[3]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, at 408; Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435
Under those circumstances an application for leave to appeal would ordinarily be refused, but QCAT proceedings, including in this appeal, are determined according to the substantial merits of the case[4].
[4]QCAT Act, s 28(2)
Although not couched in these specific terms Mr Law’s contentions, in effect, turn upon the learned Magistrate’s findings of fact. I have approached his application on that basis. It must be borne in mind, however, that my duty is to determine whether there is any error in the primary decision, not where the truth lay as between the competing versions given by the parties[5].
[5]Fox v Percy (2003) HCA 22 at (32) per Gleeson CJ Gummow and Kirby JJ
Findings of fact by the primary decision-maker will usually not be disturbed on appeal if the facts inferred are capable of supporting the conclusions[6] and are not contrary to compelling inferences[7]. There is nothing in transcript of the hearing or in the submissions from Mr Law which suggests that the learned Magistrate’s findings were not reasonably open on the evidence before him, or contrary to any compelling inferences.
[6]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 197 ALR 201 at
207, 208
[7]Chambers v Jobling (1986) 7 NSWLR 1 at 10
There is, then, no demonstrated or discernable error in the learned Magistrate’s decision; nor is there any question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage. For these reasons, the application for leave to appeal should be refused.
0
3
1