Northside Truck Rebushing & Welding Pty Ltd v Protheroe
[2014] QCATA 62
•1 April 2014
| CITATION: | Northside Truck Rebushing & Welding Pty Ltd v Protheroe [2014] QCATA 062 |
| PARTIES: | Northside Truck Rebushing & Welding Pty Ltd (Appellant) |
| v | |
| Douglas James Protheroe (Respondent) |
| APPLICATION NUMBER: | APL548 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 1 April 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – whether applicant able to appropriately present case – whether tribunal understood nature of work the subject of dispute - whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 29 Pickering v McArthur [2005] QCA 294 |
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
Northside Truck Rebushing & Welding Pty Ltd fitted a tray to Mr Protheroe’s truck. It then sent him an invoice for $3,148. Mr Protheroe objected to the bill, saying that he was quoted $800 to fit the tray. Northside filed an application in the minor civil disputes jurisdiction of the tribunal claiming the full amount of $3,148. Two Justices of the Peace ordered Mr Protheroe pay Northside the quoted $800 plus the filing fee.
Northside wants to appeal that decision. It says the learned Justices made the decision without full regard to the facts because Northside’s representative, Mr Gilbert, was “unable to appropriately convey relevant material for the [learned Justices’] consideration”. It also says that the learned Justices may not have had a sufficient understanding of the work involved.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The principles the appeals tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as His Honour then was) in Pickering v McArthur[1]:
There are numerous authorities, in varying language but with unvarying emphasis, that 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.
[1][2005] QCA 294 at [3].
Northside filed fresh material with its application for leave to appeal. The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined[2]. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Northside 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]
[2]Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 137, 138.
[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. Northside has provided no explanation as to why this material was not available earlier. Mr Gilbert provides some further explanation of the facts but he has not provided a sworn statement or even signed the copies of material he provided. The fresh evidence, on its own, has no probative value. That evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Justices.
Northside does not explain why it could not present its case properly before the learned Justices. I have listened to the transcript. Mr Gilbert presents as a confident and articulate party. There is nothing in the transcript to suggest that Mr Gilbert was under any disability or disadvantage that meant the learned Justices had to take steps to ensure he understood the nature of the proceedings or the assertions made[4]. If Mr Gilbert did not convey his case properly, that is his own responsibility. The learned Justices cannot be faulted for the way Mr Gilbert presented his case.
[4]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 29.
The transcript does not support a finding that the learned Justices did not understand the work involved. As they pointed out in their reasons for decision[5], the key issue for their consideration was the terms of any agreement between Mr Gilbert and Mr Protheroe. The learned Justices found that Mr Gilbert told Mr Protheroe the work would take about 10 hours and that he would charge $80 per hour. The learned Justices found that Northside did not discharge its onus of proof in substantiating the hours claimed. The learned Justices did not have the benefit of evidence from Mr Gilbert’s son, who apparently worked on the job for twelve hours. Mr Gilbert could not explain what he did in the number of hours claimed. The learned Justices had reason to find that Northside did not prove its case and I can find no compelling reason to come to a different view.
[5]Transcript page 1-24, lines 39-41.
There is no reasonably arguable case that the learned Justices were in error. Leave to appeal should be refused.
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