Matthews v Coward & Philips
[2015] QCATA 120
•18 August 2015
| CITATION: | Matthews v Coward & Philips [2015] QCATA 120 | |
| PARTIES: | Grant Matthews (Applicant/Appellant) | |
| v | ||
| Gareth Coward Keri-Ann Philips (Respondents) | ||
| APPLICATION NUMBER: | APL083 -15 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe OAM |
| DELIVERED ON: | 18 August 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – MOTOR VEHICLE COLLISION – where three car collision – where tribunal found driver of middle car responsible for repairs to first car - 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
In May 2014, Gareth Coward, driving his Ford Fiesta, stopped at an intersection on Kingston Road Loganlea. Grant Matthews, driving a Landcruiser, was behind him. Keri-Ann Phillips, in a Nissan Pulsar, was behind Mr Matthews. Mr Matthews’ Landcruiser ran into the back of Mr Coward’s Fiesta. Ms Phillips’ Pulsar ran into the back of the Landcruiser. The question for the tribunal was which car caused the damage to Mr Coward’s car. The tribunal found that Mr Matthews’ Landcruiser ran into Mr Coward’ Fiesta before Ms Phillips’ Pulsar hit Mr Matthews’ Landcruiser. The tribunal found that Mr Matthews alone was liable for the damage to Mr Coward’s car.
Mr Matthews wants to appeal that decision.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] 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]
[1]QCAT Act s 142(3)(a)(i).
[2]Pickering v McArthur [2005] QCA 294 at [3].
Mr Matthews’ only ground of appeal is that the tribunal erred in fact. He says that the tribunal should not have accepted Ms Phillips’ evidence that she was travelling at 30 km/hour at the time of the collision. He says he will prove Ms Phillips was travelling at 55 – 60 km/hour.
Fresh evidence
To assist him in proving Ms Phillips’ speed at the time of the collision, Mr Matthews filed a statement from Levi Casey. Mr Casey’s statement was not before the tribunal below.
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 the parties 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?[3]
[3]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 Matthews has not explained why Mr Casey’s statement was not available earlier. Mr Casey is a “qualified tradesman in the automotive repair industry” but that does not necessarily qualify him to give evidence about the physics of collisions, or the speed at which a person was travelling before impact. Although the evidence may have an impact on the result of the case, I am not satisfied that it is credible evidence. My Casey’s evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the tribunal below.
The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[4] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[5]
[4]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[5]Chambers v Jobling (1986) 7 NSWLR 1 at 10.
The tribunal had copies of the parties’ statement to the police. All parties to the collision gave evidence to the tribunal. Mr Coward’s version of events coincided with Ms Phillips’ version of events. The tribunal was entitled to accept their evidence over Mr Matthews’ evidence. The tribunal found that the damage to Mr Coward’s Fiesta was caused, in large part, by Mr Matthews’ bull bar. The evidence can support that finding and there is nothing in the transcript to persuade me that the tribunal should have taken a different view of the facts.
Mr Matthews makes some other submissions. He says that Mr Coward settled his insurance claim for $2,754.60, not the maximum of $5,000. He questions why this is so.
The tribunal made a decision on the evidence before it. Mr Coward had an invoice for $7,474.02. His insurer paid part of that invoice. A letter from the insurer notes that the payment was the maximum allowable for uninsured parties. Mr Matthews was uninsured. Mr Coward claimed only the balance of the repair costs. There is no mystery in Mr Coward not receiving full compensation from his insurer.
Mr Matthews also complains that Mr Coward did not follow the insurer’s procedure and did not provide him with two quotes. He says that the first he heard of the claim was after Mr Coward had his car fixed.
The tribunal does not require multiple quotes. It simply requires evidence of the cost, and Mr Coward provided that by filing a copy of the invoice he paid. If Mr Matthews disputed the cost of repair, then he should have raised that with the tribunal. Instead, the hearing was focussed on who caused the accident. Mr Matthews cannot now raise the issue of quantum.
There is no reasonably arguable case that the tribunal was in error. Leave to appeal should be refused.
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