Rigbye v Stevenson

[2014] QCATA 151

CITATION: Rigbye v Stevenson [2014] QCATA 151

PARTIES:	Brian James Rigbye (Applicant/Appellant)
v
Michael Gordon Joseph Stevenson (Respondent)

APPLICATION NUMBER: APL478-13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Thomas, President

DELIVERED ON: 23 June 2014

DELIVERED AT: Brisbane

ORDER MADE: The application for leave to appeal is refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – MOTOR VEHICLE COLLISION – where collision in car park – where applicant reversing – where Magistrate accepted respondent’s evidence – where driver of respondent’s car not available to be cross examined – whether grounds for leave to appeal

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(b), s 32, s 142(3)(a)(i)

Chambers v Jobling (1986) 7 NSWLR 1, cited
Dearman v Dearman (1908) 7 CLR 549, applied
Fox v Percy (2003) 214 CLR 118, applied
Pickering v McArthur [2005] QCA 294, applied

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

1. Mr Rigbye was reversing his car from a car park when it collided with         Mr Stevenson’s taxi. The collision caused damage to the rear passenger’s side of the taxi. Mr Stevenson filed a claim for the cost of repairs in the minor civil disputes jurisdiction of the tribunal. An acting Magistrate, sitting as a member of the tribunal, ordered Mr Rigbye pay Mr Stevenson’s claim.

2. Mr Rigbye seeks to appeal that decision. He says that he was not heard; his evidence was not handed to the learned Magistrate and, therefore, the learned Magistrate did not read his statement. He says he never ‘got to take the stand’ and tell his side of the story and, he wants a rehearing with the taxi driver available to give evidence.

3. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] The principles the appeal 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:

   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.[2]

   [1]QCAT Act s 142(3)(a)(i).

   [2][2005] QCA 294 at [3].

4. Mr Rigbye was sworn at the start of the hearing.[3] Although he did not formally “take the stand”, in the sense that he did not give evidence from the witness box, Mr Rigbye told the learned Magistrate his version of events twice during the hearing.[4] I am satisfied that Mr Rigbye was heard, and did tell his side of the story.

   [3]Transcript page 1-2, line 44.

   [4]Transcript page 1-3, line 45 to page 1-4, line 28; page 1-6, lines 29-40.

5. There is nothing in the transcript to suggest that Mr Rigbye wanted to hand up a statement, nor is there anything in the transcript to suggest that the learned Magistrate prevented Mr Rigbye from handing up a statement.

6. Mr Rigbye has filed a handwritten statement with his application for leave to appeal. It says no more than the evidence he gave before the learned Magistrate. He has not provided a copy of the statement he says he wanted to hand up at the original hearing. I do not believe that there has been any failure in the learned Magistrate’s procedure.

1. The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions,[5] however an appellate tribunal may interfere if the conclusion arrived at is ‘contrary to compelling inferences’ in the case.[6] 

   [5]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.

   [6]Chambers v Jobling (1986) 7 NSWLR 1 at 10.

1. The taxi driver was not available to give evidence but he did provide a sworn statement. The tribunal is not bound by the rules of evidence.[7] While it is very preferable that, in matters of contested evidence, the witnesses are available for cross-examination, it is not necessarily fatal to a fair hearing.

   [7]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28(3)(b).

2. As the learned Magistrate observed,[8] the two versions of events before him were “poles apart”. The learned Magistrate found that, because he was reversing, Mr Rigbye had a very heavy onus to ensure that his path was clear and that Mr Rigbye failed in discharging that duty.

   [8]Transcript page 1-7, lines 46-47.

1. The learned Magistrate’s finding is open on the evidence. There is nothing in the transcript that points to the learned Magistrate should have taken a different view of the facts. In fact, because the damage to the taxi was at the rear, Mr Rigbye’s version of events – that the taxi driver drove onto his reversing vehicle – is inherently unlikely. If Mr Rigbye’s version of events was true, the damage to the taxi would have been at the front.

1. There is no reasonably arguable case that the learned Magistrate was in error and the application for leave to appeal should be refused.