Pou v Doran
[2014] QCATA 68
•8 April 2014
| CITATION: | Pou v Doran [2014] QCATA 068 |
| PARTIES: | Netania Pou (Applicant/Appellant) |
| v | |
| Sophia Doran (Respondent) |
| APPLICATION NUMBER: | APL300-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Thomas, President |
| DELIVERED ON: | 8 April 2014 |
| DELIVERED AT: | Brisbane |
| ORDER MADE: | Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – DEBT OR LIQUIDATED DEMAND – where applicant reversed into respondent’s vehicle – where impact caused damage to respondent’s vehicle – where respondent commenced proceedings in Tribunal for cost of repairs and filing fee – where Tribunal allowed respondent’s claim – where applicant seeks leave to appeal that decision – whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 28, 29(1), 32, 43, 142 Cachia v Grech [2009] NSWCA 232, cited |
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).
REASONS FOR DECISION
Sophia Doran’s car was damaged when a vehicle driven by Netania Pou reversed into it, in a car park, at the Lake Street Transit Mall in Cairns on 28 September 2012.
In February 2013, Ms Doran commenced proceedings against Ms Pou in the minor civil disputes jurisdiction of the Tribunal, seeking $880.00 for the costs of repairs and $55.00 as payment of the filing fee.
Ms Pou filed an affidavit in response to the application. In it she argued that there should be an apportionment of the cost of repairs because ‘contributory negligence was in play’.[1] Her claim, that Ms Doran’s negligence contributed to the damage, was made it appears, on the basis that Ms Doran failed to ‘sound her horn on seeing me begin to reverse’[2] when it was reasonable for her to do so.
[1]Affidavit of Netanie Pou, 14 June 2013, p 2.
[2]Ibid.
The application was heard and decided on 24 June 2013 by a Magistrate, sitting as an ordinary Member of the Tribunal. The learned Magistrate held that while Ms Pou had shown some care in reversing, she had not taken reasonable care, considering her view of Ms Doran’s car was obstructed by an adjacent parked van. For that reason the learned Magistrate found Ms Pou had been negligent and was liable for the cost of repairs to Ms Doran’s car. It was also held that there was no compelling reason to find that Ms Doran had been contributorily negligent. In these circumstances, the learned Magistrate ordered Ms Pou to pay Ms Doran the sum of $935.00.
Ms Pou seeks to appeal that decision on grounds which may be summarised as:
(a) The wrongful admission and subsequent reliance by the Magistrate of evidence which, in Ms Pou’s submissions, was inconsistent with previous admissions made by Ms Doran;
(b) An error on the part of the Magistrate to allow Ms Doran to lead ‘new’ evidence during the hearing which, in Ms Pou’s submission, is inconsistent with the rules of evidence;
(c) The Magistrate erred in not finding that Ms Doran was contributorily negligent for the damage caused to her car; and
(d) A complaint that the ‘insufficient legal advice’ she received in preparation of her hearing led her to be misinformed of her rights under the QCAT Act, as well as the practices and procedures of the Tribunal.
As this is an appeal from a decision of the Tribunal in its minor civil disputes jurisdiction, it is necessary to first establish that leave to appeal should be granted.[3]
[3]QCAT Act s 142(3)(a)(i).
The Appeal Tribunal addresses the question of whether or not leave to appeal should be granted according to established principles that have developed under the common law. Is there a reasonably arguable case of error in the primary decision?[4] Is there a reasonable prospect that the applicant will obtain substantive relief?[5] Is leave necessary to correct a substantial injustice caused by some error?[6]
[4]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[5]Cachia v Grech [2009] NSWCA 232 at 2.
[6]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
None of those questions can be answered in the affirmative, and for the reasons that follow, leave to appeal is refused.
As to grounds (a), (b) and (c), s 28 of the QCAT Act holds that the Tribunal is not bound by the rules of evidence, and may inform itself in anyway it considers appropriate.[7] While Ms Pou did not raise the issue of contributory negligence at the hearing,[8] the learned Magistrate was aware of the issue, and nevertheless determined that there was no compelling reason to make such a finding.
[7]QCAT Act s 28(3)(b)-(c).
[8]See Transcript of Proceedings, Doran v Pou (QCAT, MCDO77-13, Magistrate Gett, 24 June 2013).
A finding of contributory negligence was not available on the basis of the evidence Ms Pou presented to the Tribunal: Ms Pou reversed her car into a stationary vehicle.
It is expected that motor vehicle drivers exercise reasonable care when driving. That is particularly the case in busy shopping centre car parks, where crossing pedestrians and reversing vehicles are not uncommon. If Ms Pou had kept a proper lookout and had been watching to the limit of her visibility, she would have had sufficient warning of the presence of Ms Doran’s vehicle. She did not exercise reasonable care in the circumstances.
The final ground relates to Ms Pou’s failure to understand the practices and procedures of the Tribunal and, whether her receiving poor advice about how her hearing would proceed warrants leave to appeal.
The Tribunal is required by s 29(1) of the QCAT Act to take all reasonable steps to ensure each party to a proceeding understands the Tribunal’s practices and procedures. It cannot be said that the Tribunal has not, in these proceedings, discharged that duty. What parties do in preparation for a hearing, including what advice they seek, is a matter for them. There is nothing in the transcript of the proceedings that suggests she did not understand the practices and procedures of the Tribunal.
Ms Pou also claims that she was misinformed, in particular, of her legal rights to representation. Section 43 of the QCAT Act provides that the main purpose of this section is to have parties represent themselves. In fact, parties must be given leave by the Tribunal if they wish to be represented.[9] The fact Ms Pou was not represented at the hearing does not mean she was denied a fair hearing. The transcript makes clear that the learned Magistrate took care to receive evidence from each party and, in particular, ensured that Ms Pou understood why Ms Doran’s claim was successful.
[9]QCAT Act s 43(2)(b)(iv).
There is no question of general importance that should be determined by the Appeal Tribunal. There is no reasonably arguable case that the learned Magistrate 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. For these reasons, leave to appeal is refused.
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