Mounter v Hayburn - [2015] QCATA 40

CITATION:

Mounter v Hayburn [2015] QCATA 40

PARTIES:	Anne Marie Mounter (Applicant/Appellant)
v
Kerrid John Hayburn (Respondent)

APPLICATION NUMBER:

APL468-14

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice D Thomas, President

DELIVERED ON:

20 March 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – were motor vehicle collision – where car driven by employee – whether owner/employer liable for acts of employee – whether grounds for leave to appeal

APPEAL – LEAVE TO APPEAL – LEAVE FOR LEGAL REPRESENTATION – where late application for leave for legal representation – where no complex question of law – where allegation of threats – where tribunal refused leave – whether grounds for leave to appeal

APPEAL – LEAVE TO APPEAL – PROCEDURE – where no cross-examination at hearing – where no request for cross-examination – where expedited hearing – whether tribunal required to allow cross-examination – whether grounds for leave to appeal

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 43(1), 43(3)(b), 94(1)(a), 95(1)(b), 95(2)(c), 142(3)(a)(i)
Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 82

Dearman v Dearman (1908) 7 CLR 549
House v The King (1936) 55 CLR 499
Soblusky v Egan [1960] HCA 9
Hollis v Vabu Pty Ltd[2001] HCA 44
Fox v Percy (2003) 214 CLR 118
Pickering v McArthur [2005] QCA 294
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404
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 (Qld) (“QCAT Act”).

REASONS FOR DECISION

On 5 April 2013, Mr Hayburn was sitting in his Toyota Hilux on the Dawson Highway, waiting to make a right hand turn. A Honda, owned by Ms Mounter and driven by one of her employees, ran into the back of the Hilux, causing damage. Mr Hayburn received advice that the Hilux was a write off. He filed a claim in the tribunal for $8,000, being the value of the Hilux. A Magistrate, sitting in the minor civil disputes jurisdiction of the tribunal, ordered Ms Mounter pay Mr Hayburn $8,000 plus costs.
Ms Mounter 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].
Ms Mounter submits that the learned Magistrate failed to take into account the fact that Mr Hayburn drove the car even after claiming it was a write off.

The appeal tribunal will not usually disturb findings of fact on appeal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mounter v Hayburn

Details

AGLC: Mounter v Hayburn [2015] QCATA 40
Case: [2015] QCATA 40
Decision Date: 20 March 2015

CaseChat Overview and Summary

Mounter sought leave to appeal against a decision of the Civil and Administrative Tribunal of New South Wales (NCAT), which dismissed his claim for damages against Hayburn. The dispute arose from a motor vehicle collision in which Mounter was injured when his vehicle was struck by a car driven by Hayburn, an employee of a company of which Hayburn was the sole director. Mounter sought to hold Hayburn personally liable for the damages, as well as to hold the company vicariously liable. The NCAT found that the company was liable, but that Hayburn was not personally liable as he was not an employee of the company at the time of the accident. The NCAT also dismissed Mounter’s claim for leave for legal representation, finding that it was an abuse of process and that Mounter had not demonstrated exceptional circumstances warranting such leave. Mounter appealed on three grounds: first, that the NCAT erred in finding that Hayburn was not personally liable for the damages; second, that the NCAT erred in refusing leave for legal representation; and third, that the NCAT erred in not allowing cross-examination of a witness at the hearing. The Court found that none of these grounds provided a sufficient basis for leave to appeal. The Court held that the NCAT was correct in finding that Hayburn was not personally liable, as the evidence did not support a finding that he was an employee of the company at the relevant time. The Court also held that the NCAT was correct in refusing leave for legal representation, as the case did not involve complex questions of law and Mounter had not demonstrated exceptional circumstances warranting such leave. Finally, the Court held that the NCAT was not required to allow cross-examination of a witness at the hearing, as there had been no request for such cross-examination and the hearing was expedited. Leave to appeal was refused.

Orders

Orders of the court

1. Leave to appeal refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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