Lee v Manour
[2014] QCATA 110
•6 May 2014
| CITATION: | Lee v Manour [2014] QCATA 110 |
| PARTIES: | Christopher Lee (on behalf of Megan Matters) (Applicant/Appellant) |
| v | |
| Hazim Manour (Respondent) |
| APPLICATION NUMBER: | APL100 -14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 6 May 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where contract to buy vehicle – whether condition of sale that vehicle be ex-mine – whether grounds for leave to appeal PROCEDURE – where witness present at the hearing – where tribunal did not allow witness to be called – where witness did not provide a statement to the tribunal – where witness “overheard” conversations – where witness in a relationship with applicant – whether a failure of natural justice – 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 Lee is a motor vehicle broker. He acted for Ms Matters in the purchase of a Toyota Landcruiser. Ms Matters paid a $500 deposit but withdrew from the sale when Mr Lee discovered that the Landcruiser was an ex-mine vehicle. Mr Mansour kept the deposit. Mr Lee filed a claim for the return of the deposit. Two Justices of the Peace, sitting in the minor disputes jurisdiction of the tribunal, dismissed the claim.
Mr Lee wants to appeal that decision. He says he was recovering from surgery and on strong medication at the hearing that affected his ability to conduct the case. He says he now has evidence to show Mr Mansour was not telling the truth at the hearing.
Mr Lee filed fresh evidence with his 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. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Mr Lee 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?[1]
[1]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. Mr Lee could have obtained this evidence earlier. He has provided no explanation as to why he did not present this evidence to the tribunal. That evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Justices.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The principles the appeals tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as His Honour then was) in Pickering v McArthur[2]:
There are numerous authorities, in varying language but with unvarying emphasis, that 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][2005] QCA 294 at [3].
The transcript does not show that Mr Lee was suffering any disability in the presentation of his case. He did not tell the learned Justices of his condition or ask for an adjournment. He cannot now ask for a rehearing on the basis of an incapacity that was obvious to the learned Justices and not disclosed.
The issue for the learned Justices was whether Mr Mansour knew Ms Matters did not want an ex-mine vehicle. Mr Lee said he told Mr Mansour. Mr Mansour denied that such a conversation took place.
Mr Lee had a witness, Ms Nielson, available to give evidence that she overheard conversations between Mr Lee and Mr Mansour. The learned Justices did not take evidence from her, apparently because she was Mr Lee’s girlfriend, and they were not satisfied that she would have been able to hear both sides of the conversation. It would have been better if the learned Justices had heard from Ms Nielson and then decided what weight to give that evidence. However, for the reasons that follow, I am not persuaded that this lapse of procedure resulted in an error that gave rise to a substantial injustice to Mr Lee.
The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[3] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[4]
[3]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[4]Chambers v Jobling (1986) 7 NSWLR 1 at 10.
The learned Justices had copies of emails and texts that passed between Mr Lee and Mr Mansour. The fact of the ex-mine vehicle surfaces in the safety certificate dated 16 July 2013. In emails on the evening of 16 July 2013, Mr Lee queries Mr Mansour about that issue but at no stage says words to the effect of “but I explicitly told you Megan would not accept an ex-mine vehicle”.
On the morning of 17 July 2013, Mr Lee sent Mr Mansour a text in these terms:
Good morning Hazim. I can’t get the client over the line with the car. The rego and freight etc pushes her budget too far out. Apologies mate, I think it is the right car for her. Thank you for your patience. Cheers, Chris.
There is no mention of “ex-mine condition” until Mr Mansour informs Mr Lee that he will not refund the deposit. Even then, Mr Lee does not explicitly refer to that requirement. Given Mr Lee’s facility with language in the texts that follow, that omission is surprising.
The documentary evidence can support the learned Justices’ finding. There is nothing in the transcript to persuade me that they should have taken a different view of the facts.
Although the learned Justices erred in not hearing from Ms Nielson, there is no reasonable prospect of substantive relief on appeal. Leave to appeal should be refused.
0
4
0