Norman v English
[2018] QCATA 176
•19 November 2018
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Norman v English [2018] QCATA 176
PARTIES:
KELLYANN NORMAN
(appellant)v SARAH ENGLISH T/AS HORNE FAMILY REMOVALS
(respondent)
APPLICATION NO/S:
APL074-18
ORIGINATING APPLICATION NO/S:
Claim 695-17 (Southport)
MATTER TYPE:
Appeals
DELIVERED ON:
19 November 2018
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member Gordon
ORDERS:
Leave to appeal against the decision made on
5 February 2018 in Claim 695-17 Southport is refused. The appeal therefore fails.CATCHWORDS:
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN NO APPEAL LIES – leave to appeal – where minor civil dispute heard by Adjudicator – whether any reasonably arguable grounds of appeal
REPRESENTATION:
Applicant:
Self-represented
Respondent:
Self-represented
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
This is an appeal from an Adjudicator who dismissed an application brought by Kellyann Norman against Sarah English trading as Horne Family Removals.
Ms Norman had paid $1,800 to Horne Family Removals for removalist work and in the claim she sought the return of this money. She also sought an order for the return to her of $3,000 worth of personal possessions which she said Horne Family Removals had removed from her premises at her request but had failed to deliver to her.
The claim was heard at Southport on 6 February 2018. The Appeal Tribunal has had the advantage of a transcript of the hearing. Unfortunately this cannot be provided to the parties for cost and copyright reasons.
Some of the facts were agreed between the parties. It was agreed that at Ms Norman’s request, Horne Family Removals had attended Ms Norman’s premises in Sydney on more than one occasion with a view to removing her furniture and possessions. Most of these were delivered to a storage facility on the Gold Coast as requested by Ms Norman. The remainder had been retained by Horne Family Removals in its own storage facility. Horne Family Removals had been paid a total of $1,800 and Ms Norman had signed a document provided by Horne Family Removals which contained printed terms and conditions.
There was differing evidence about other relevant facts.
The Adjudicator’s conclusions
One of the relevant issues was the price quoted for the removal of Ms Norman’s furniture and possessions. This was done on the telephone between Mr Horne on behalf of Horne Family Removals and Ms Norman’s boyfriend on her behalf. The only direct evidence about this was from Mr Horne. He said he quoted $100 per cubic metre as measured from markings on the van, and this was a standard price in the industry. He denied giving a fixed quote of $1,600 for the job as Ms Norman said, because he had not attended her premises and measured what had to be moved. This meant it was impossible to give a fixed price. When he did attend with an opportunity to view the furniture and possessions, he was not allowed into one of the rooms, and this room later turned out to be packed with goods. What Mr Horne said was corroborated by his note on the document signed by Ms Norman, although she said she signed it before anything had been written on it.
On this issue, the Adjudicator preferred the evidence of Mr Horne and decided that the contractual arrangement was to move goods at $100 per cubic metre. Accordingly the payment of $1,800 represented 18 cubic metres of goods which had been moved to the Gold Coast storage facility.[1] On that basis, the Adjudicator dismissed the first part of the claim which was for the return of the $1,800 because it was a payment in accordance with the contract, for work performed by Horne Family Removals.
[1]Transcript 1-35 line 44.
That finding meant that the remainder of the goods removed from Ms Norman’s premises and retained by Horne Family Removals in its storage facility, which Mr Horne said was some 6 cubic metres of goods, required a further payment. The Adjudicator accepted the evidence of Mr Horne that he had sought payment for the charges relating to these goods from Ms Norman but this had been refused, and that Horne Family Removals had held them in storage for a year and then disposed of them. On that basis the Adjudicator decided that Ms Norman was not entitled to claim compensation in respect of these goods. The Adjudicator pointed out that there was no evidence to support Ms Norman’s estimation of the value of these goods at $3,000 in any case.
The appeal
In this appeal Ms Norman says that the Adjudicator was wrong to accept the evidence of Mr Horne over her evidence but she does not explain why. In her appeal submissions, Ms Norman merely repeats her case. This is simply an attempt again to argue a case which has been lost on the merits. The Appeal Tribunal however, can only interfere with a finding of fact if it is clearly wrong and not open to the original decision maker or based on material which should not have been admitted in evidence.
Ms Norman also says in her appeal submissions that the Adjudicator failed to consider the evidence which she submitted to the tribunal in her application. This is incorrect. The Adjudicator confirmed at the hearing that she had read Ms Norman’s material but said that she had found it confusing.[2]
[2]Transcript 1-15 line 13; 1-31 line 39.
Ms Norman also says in her appeal submissions that she was not given the opportunity to present her case fully at the hearing. Again this is not the case. The hearing lasted a total of an hour which was ample to deal with the narrow issues. Ms Norman gave her evidence to the Adjudicator first and then after Mr Horne had given evidence, the Adjudicator went through the important points again with Ms Norman.
The merits of the application turned on the main issue which was whether the job was quoted at a fixed price of $1,600 as Ms Norman said, or whether it was at a price of $100 per cubic metre as measured on the van as Mr Horne said. The evidence showing that it was $100 per cubic metre was much stronger and consequently the outcome of the application was almost inevitable.
Appeals in minor civil disputes can only be brought with the leave of the Appeal Tribunal. Such leave will only be given if there is an arguable case on appeal. Such appeals are only arguable if the decision maker is in error in law, or has made a factual finding which could not be made on the evidence and is of such importance as to require leave to be given. This is not the case here. Leave to appeal is refused and the appeal therefore fails.
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