McNamara v Scheerer
[2013] QCATA 44
•26 February 2013
| CITATION: | McNamara v Scheerer [2013] QCATA 44 |
| PARTIES: | Glynn McNamara (Applicant/Appellant) |
| v | |
| Nigel Scheerer (Respondent) |
| APPLICATION NUMBER: | APL265-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Senior Member |
| DELIVERED ON: | 26 February 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | MINOR CIVIL DISPUTE – where fresh evidence filed in appeal – whether appropriate to allow fresh evidence – where dispute about terms of oral contract - whether grounds for appeal Queensland Civil and Administrative Tribunal Act2009, s 137, 138 Chambers v Jobling (1986) 7 NSWLR 1 |
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 (QCAT Act).
REASONS FOR DECISION
Mr Scheerer made some stained glass windows for Mr McNamara. Mr McNamara paid for materials but not for labour because, he says, leadlighting was Mr Scheerer’s hobby and he had agreed to do it at no cost. Mr Scheerer disagreed, saying that Mr McNamara agreed to pay the costs of materials and give him a computer and software. When Mr McNamara did not give Mr Scheerer the computer and software, Mr Scheerer applied to the Tribunal. The learned Adjudicator preferred Mr Scheerer’s evidence and ordered Mr McNamara pay him $1,850.00.
Mr McNamara wants to appeal that decision. He disputes the terms of the agreement. He says that, if he does have to pay for labour, then it should be at the market rate for the type of work. He wants the Appeal Tribunal to accept independent quotes for the work as the proper value of Mr Scheerer’s work.
Because this is an appeal from a minor civil dispute, Mr McNamara must seek leave to appeal. The Tribunal may grant leave if the dispute raises a question of general importance and the public would benefit from a decision on that question. It may also grant leave if Mr McNamara shows a reasonably arguable case of error and a reasonable prospect that he will obtain substantive relief if the error is corrected.
Mr McNamara has provided the Appeal Tribunal with quotes and letters that the learned Adjudicator did not see. The Appeals Tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined[1]. Ordinarily, an application for leave to provide such evidence must satisfy each of the following tests:
a) The evidence could not have been obtained with reasonable diligence for use at the trial;
b) The evidence, if allowed, would probably have an important impact on the result of the case (although it need not be demonstrated that it would be decisive); and
c) That the evidence is credible though it need not be incontrovertible.[2]
[1] ss 137-8 of the QCAT Act.
[2] 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. The dispute arose in early 2011. Mr McNamara had lawyers acting for him. The parties went to mediation. Mr McNamara appeared at the hearing of the dispute. Despite these steps, Mr McNamara has provided no explanation as to why this material was not available earlier. The evidence postdates the hearing and I see no good reasons to allow it. The application for leave to appeal must proceed on the basis of the evidence before the learned Adjudicator
Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[3]
[3]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
An appellate tribunal may interfere if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.[4] 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.[5]
[4] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[5] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
This is a dispute about the terms of an oral contract. The learned Adjudicator had to decide which of the two versions he preferred. Mrs Scheerer gave evidence that supported her husband’s version of events. I listened to the transcript of the hearing. The learned Adjudicator’s decision is supported by the evidence and there is nothing to persuade me that the learned Adjudicator should have taken a different view of the facts.
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; and there is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.
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