McIntyre v Midgley

[2013] QCATA 2

CITATION: McIntyre v Midgley [2013] QCATA 002

PARTIES:	Neil McIntyre (Applicant/Appellant)
v
Alex Midgley (Respondent)

APPLICATION NUMBER: APL313-11

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Richard Oliver, Senior Member

DELIVERED ON: 3 January 2013

DELIVERED AT: Brisbane

ORDERS MADE: Leave to appeal refused.

CATCHWORDS:

Minor Civil Dispute – where findings of fact open on the evidence – where applicant seeks a rehearing of the original proceeding in the application for leave to appeal

Queensland Civil and Administrative Tribunal Act2009, s 142(3)

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. This appeal arises from a decision of the Tribunal in the minor civil disputes jurisdiction.  Mr McIntyre was ordered to pay Mr Midgley $667.00 in respect of damage to Mr Midgley’s motor vehicle which occurred as a result of the negligence of Mr McIntyre.  The incident occurred at the Pacific Fair Shopping Centre on 29 July 2010.  Mr Midgley contended that he was driving slowly in the car park area when Mr McIntyre’s vehicle pulled out of a car park and hit the front left hand side of his vehicle.

1. Mr Midgley claims that he moved his car and stopped expecting to speak to Mr McIntyre about the incident but Mr McIntyre drove off without exchanging details.  Because Mr Midgley was able to record the number plate of Mr McIntyre’s car, a report was made to the Police and they investigated the incident. 

1. Mr Midgley made a claim for the cost of repair to his vehicle and then commenced a proceeding in the minor civil disputes jurisdiction to recover that cost on 14 January 2011.  Both parties have filed submissions in respect of the circumstances of the accident together with diagram and photos. 

1. It seems the matter was listed for mediation on 14 January 2011 but Mr McIntyre did not attend.  In his absence, as she was entitled to do, the learned Adjudicator considered the evidence that had been filed and made an order that Mr McIntyre pay to Mr Midgley $667.00.  This was consistent with the quotations that had been provided for the repair of the vehicle.

1. Mr McIntyre filed an application to reopen the proceeding but his application was refused. It seems that in his application, and in his letter of support of the application, he did not provide any excuse for not attending the Tribunal on the day when the order was made against him. This is one of the reopening grounds required to be satisfied under section 138 of the QCAT Act.

1. Mr McIntyre then filed an application for leave to appeal or appeal.  In that application he again asks that the Appeal Tribunal to effectively rehear the matter.  His grounds of appeal ask that the Appeal Tribunal allow evidence from both parties on oath and allow cross examination to arrive at a true and accurate decision.  Unfortunately, that is not the function of the Appeal Tribunal. 

1. For the merits of an appeal from a decision in the minor civil disputes jurisdiction to be considered, the applicant must first obtain the Appeal Tribunal’s leave, or permission.  That will only be given in certain circumstances.

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. Here, Mr McIntyre does not attempt to identify any error on the part of the learned Adjudicator who first considered the matter.  It is evident from a perusal of the minor civil disputes file that she had lengthy submissions and evidence from Mr McIntyre, she had the application from Mr Midgley with his signed statement attached to it and when she considered all that evidence, she made the decision that she did. 

1. In the appeal submissions, Mr McIntyre simply reiterates all of the facts that are relevant to the consideration of a hearing on the merits.  Not only do his submissions go to the facts that were before the Tribunal at first instance, they also contain comment and observations which are not evidence but go to the heart of whether or not this incident occurred as described by Mr Midgley. 

1. Having accepted Mr Midgley’s evidence, which she obviously did, and as those conclusions of fact were open on that evidence before her, it is not for the Appeal Tribunal to disturb that finding of fact unless some error in the reasoning process can be identified, and here there is none. 

1. In the circumstances leave to appeal must be refused.