Luke v Waitoa
[2018] QCATA 105
•27 July 2018
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Luke v Waitoa [2018] QCATA 105
PARTIES:
RODNEY JOHN LUKE
(applicant/appellant)v PAE-O-TE-RIRI WAITOA
(respondent)
APPLICATION NO/S:
APL323-17
ORIGINATING APPLICATION NO/S:
MCDQ596/17 (Southport)
MATTER TYPE:
Appeals
DELIVERED ON:
27 July 2018
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member Paratz
ORDERS:
The Application for Leave to Appeal or Appeal is dismissed.
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where a car dealer sought leave to appeal against an order that a used car be returned and the purchase price be refunded – where the dealer submitted that the Adjudicator had not taken and read documentation – where the Adjudicator had accepted evidence handed up at hearing – where no error of fact or law was shown
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i)
REPRESENTATION:
Applicant:
Self-represented
Respondent:
Self-represented
APPEARANCES:
This 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
Mr Pae-o-te-riri Waitoa bought a used car, a Toyota Camry, from Mr Rod Luke t/as Rod Luke Used Cars at Southport for $5,500.00 on or about 13 February 2017.
Mr Waitoa had difficulties with the car, and filed an application for a Minor Civil Dispute in the Tribunal at Southport on 5 July 2017.
The application was heard in an oral hearing at Southport before a Member/Adjudicator on 26 September 2017. The following Orders were made:
(1)Luke Financial Services Pty Ltd is removed from the claim in lieu thereof the Respondent is named Rod Luke T/as Rod Luke Used Cars.
(2)
The respondent pay the sum of $5,500.00 to the Applicant within
7 days of the date hereof.
(3)The applicant make available for collection by the respondent at a mutually convenient time the Toyota Camry motor vehicle 618XAU, such collection to be made prior to 26 October 2017.
Mr Luke filed an Application for leave to appeal or appeal on 6 October 2017. The Grounds of Appeal were stated as follows:
(1)Even though all support documentation had been stamped and sent to the Court 5/07/2017 along with the application for minor civil dispute – Case no Q596/2017 it was alleged by the adjudicator that no support documentation had been received.
(2)Even though I had the stamped support documentation with me at the Court and offered it to the adjudicator to read, the said adjudicator chose not to take the documentation and read it to give him a complete and fair understanding of the matter at hand.
(3)If the adjudicator had read my support documentation I believe the case would have been struck out as I had requested in my response to Mr. Waitoa’s application.
Mr Luke filed an application on 6 October 2017 for a stay of the orders. Some documents were filed by Mr Luke on 26 October 2017 in support of the application for a stay. That application was refused on 8 November 2017.
Directions were given as to the Appeal proceedings on 31 October 2017. Those directions required Mr Luke to file all submissions detailing the alleged errors of fact and/or law, and any further submissions by 8 December 2017. No further material was filed by Mr Luke.
Those Directions required Mr Waitoa to file all submissions in reply by
5 January 2017. Mr Waitoa filed submissions on 22 November 2017 which essentially repeated the submissions he had made at the hearing.
Those directions then provided for the hearing of the appeal to be conducted on the papers. This is the decision in the appeal proceedings.
Because this is an appeal from a decision of the Tribunal in its minor civil dispute jurisdiction, leave is necessary.[1] Leave to appeal will ordinarily only be granted 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; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i).
Mr Luke has not identified any error of law or fact made by the Member/Adjudicator.
In his Grounds of Appeal, Mr Luke alleges that the Adjudicator ‘chose not to take the documentation and read it to give him a complete and fair understanding of the matter at hand’ which he also says he had previously filed. However, Mr Luke does not identify any such material.
I have read the Transcript of the hearing. I cannot see any time at which the Member/Adjudicator refused to receive material from Mr Luke.
The question of material filed by Mr Luke was canvassed at the start of the hearing:[2]
Member: I’ll tell you what I’ve got. I’ve got a safety certificate, I’ve got a letter to whom it may concern, I’ve got an invoice and that’s about it. I’ve got a photo, I’ve an extract, I think from a warranty form, a declaration.
Mr Luke: That’s a copy of the contract, sir.
Member: It’s only got the last page. I think that’s missing. All right. Just show Mr Waitoa.
Mr Luke: That’s a copy of the contract for the car.
Member: Is that it?
Mr Waitoa: I’ve got that paperwork.
Member: All right. Hand it up here, please. Toyota model - I’m not quite sure what it says there.
[2]Transcript p 6, lines 17-32.
That extract indicates that not only did the Member/Adjudicator not refuse to receive material from Mr Luke, he actually did receive material from him. Those grounds of appeal are without foundation.
Mr Luke gave oral evidence at the hearing, and had full opportunity to present evidence or submissions.
The Member/Adjudicator did not accept the evidence of Mr Luke that he had not told Mr Waitoa to come back the next day with the car, after Mr Waitoa had driven back to complain about the bowing in the radiator. The Member/Adjudicator accepted the evidence of Mr Waitoa that he did take the vehicle to Mr Luke’s business but was told to return.[3]
[3]Transcript p 20, Line 21.
Mr Luke has not made out any error of fact or law made by the Member/Adjudicator.
There is no question of general importance that should be determined by the appeals Tribunal; there is no reasonably arguable case that the learned Member/Adjudicator was in error; there is no reasonable prospect of substantive relief on appeal; and there is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.
I order that the application for leave to appeal and or appeal is dismissed.
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