Paton v Franklin
[2013] QCATA 267
•1 October 2013
| CITATION: | Paton v Franklin [2013] QCATA 267 |
| PARTIES: | Ms Lynette Kay Paton |
| V | |
| Mr Roy Michael Franklin |
| APPLICATION NUMBER: | APL241-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe OAM, Senior Member |
| DELIVERED ON: | 1 October 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | MINOR CIVIL DISPUTE – whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549 Chambers v Jobling (1986) 7 NSWLR 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 |
APPEARANCES and REPRESENTATION (if any):
The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Mr Franklin lent Ms Paton $10,000. She repaid some of the loan but, at the time this matter came to the tribunal, she still owed him $3,578. An Adjudicator ordered that Ms Paton pay Mr Franklin $3,578 within 28 days.
Ms Paton wants to appeal that decision. She says the learned Adjudicator failed to consider evidence that supported her case, in particular, the statement of Lorraine Logan. She says that Mr Franklin’s delay caused her “significant forensic disadvantage”.
Ms Paton also says she now has evidence to prove that she has repaid Mr Franklin and that the money in dispute was never a loan, but a decision to pay her fees for a share trading course. 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 applicant for leave to adduce such evidence must satisfy three tests. Could Ms Paton 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?[2]
[1] QCAT Act ss 137 and 138.
[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. It is odd that Ms Paton has the originals of Mr Franklin’s bank statements but copies are already in the tribunal file. Ms Paton has provided a further statement from Ms Logan. It does not add much to her earlier statement. Ms Paton has also filed copies of newspaper articles and an extract from an affidavit that was filed in another court. Ms Paton has not explained why this material was not available earlier. It does not have an important impact of the result of the case. That evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Adjudicator.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?[3] Is there a reasonable prospect that the applicant will obtain substantive relief?[4] Is leave necessary to correct a substantial injustice caused by some error?[5] Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?[6]
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4] Cachia v Grech [2009] NSWCA 232 at 2.
[5] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[6]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
The appeals tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[7] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[8] 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.[9]
[7]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[8]Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[9]Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
The learned Adjudicator did consider Ms Logan’s statement.[10] He had to decide which of the two versions of events he preferred. He heard from an independent witness, Ms Hobbes. He preferred Mr Franklin’s version of events. The learned Adjudicator’s decision can be supported by the evidence and I see no reasons to take a different view of the facts.
[10]Transcript page 1-14, line 3.
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. 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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