Marsman v Linhares
[2013] QCATA 207
•8 July 2013
| CITATION: | Marsman v Linhares [2013] QCATA 207 |
| PARTIES: | Mr Joel Peter Marsman (Applicant/Appellant) |
| V | |
| Mr Marcos Linhares (Respondent) |
| APPLICATION NUMBER: | APL167 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe OAM, Senior Member |
| DELIVERED ON: | 8 July 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 Chambers v Jobling (1986) 7 NSWLR 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 |
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
On 11 April 2013, the tribunal found that Mr Marsman ran into the back of Mr Linhares’ car, causing damage. The learned Adjudicator ordered Mr Marsman pay Mr Linhares $784.
Mr Marsman did not attend the hearing on 11 April 2013 but he wants to appeal the learned Adjudicator’s decision. He says that Mr Linhares caused the accident. He says that Mr Linhares made the claim out of time. He points out that the police never charged him.
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] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2] Cachia v Grech [2009] NSWCA 232 at 2.
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4]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.
The appeals tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[5] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[6] 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 conclusion.[7]
[5]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[6] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[7] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
Mr Linhares attended the hearing and was prepared to give evidence. Based on the evidence available, the learned Adjudicator was entitled to find that Mr Marsman caused the accident and I can find no reason to come to a different view.
Mr Marsman does not dispute the fact that he hit Mr Linhares’ from behind. He does not dispute that Mr Linhares was stationary at the time of the accident. Only now does he offer any excuse. Mr Marsman did not bother to put his version of events to the learned Adjudicator, either by a response to the claim or by appearing at the hearing. His version has not been tested by cross-examination. His response is too little and too late.
The accident occurred on 13 February 2007. Mr Linhares filed his claim on 12 February 2013. As the learned Adjudicator observed[8], Mr Linhares had six years to make a claim and he “made it” by one day. The claim is not statute barred.
[8] Transcript page 3, lines 39- 45.
Mr Marsman’s traffic history is fresh evidence. The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined.[9] Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Mr Marsman 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?[10]
[9] ss 137 and 138 QCAT Act.
[10] 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 Marsman has not explained why this material was not available earlier. That evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned 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 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.