Robb v Tunio
[2013] QCATA 309
•1 October 2013
| CITATION: | Robb v Tunio [2013] QCATA 309 |
| PARTIES: | Mr Egerton Macpherson Robb (Applicant) |
| V | |
| Mr Mushiaq Tunio (Respondent) |
| APPLICATION NUMBER: | APL279 -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 granted. 2. Appeal dismissed. |
| CATCHWORDS: | MINOR CIVIL DISPUTE – where failure to provide reasons for decision – whether grounds for 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.
REASONS FOR DECISION
The original dispute that brought these two gentlemen before the tribunal is almost lost in the mists of time. In May 2008, Mr Robb filed a minor debt claim in the Magistrates Court at Holland Park, claiming repayment of a loan of $8,000. That jurisdiction was transferred to this tribunal on 1 December 2009. After a number of procedural hiccoughs, in both the Magistrates Court and this tribunal, the dispute finally came before an Adjudicator of the tribunal on 15 June 2012. Mr Robb did not appear. The learned Adjudicator dismissed the claim because he found there was insufficient evidence to support it.
On 18 June 2012, Mr Robb applied to reopen the proceeding. The learned Adjudicator granted the reopening and directed Mr Tunio to file “written submissions” within 14 days. The learned Adjudicator considered the further material and, on 6 November 2012, decided that there was still insufficient evidence to support Mr Robb’s claim so, again, he dismissed the claim.
Mr Robb wants to appeal this decision. He says that the learned Adjudicator did not give reasons for his decision. He says that he had not previously seen the affidavit material Mr Tunio filed. He says that Mr Tunio’s material contains false allegations. He says that the learned Adjudicator did not fully consider his evidence.
Mr Robb has filed extensive new material with his 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[1]. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Mr Robb 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, 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. This dispute has been dragging on since 2008. The original file is some inches thick and both parties had extra opportunities to file material. Presumably, Mr Robb filed this material in response to Mr Tunio’s affidavit material and, to an extent, that is a valid explanation for why he did not file it earlier. But much of the material Mr Robb wants me to consider is historical so he could have filed it before the learned Adjudicator in compliance with the learned Adjudicator’s orders. Much of the material is also irrelevant. None of it assists me in deciding the core issue of whether Mr Robb loaned Mr Tunio money. The fresh evidence does not have an important impact on 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.
I accept that the learned Adjudicator failed to provide adequate reasons for his decision. As Dr Forbes, a member of this tribunal has observed, there is a strong case for treating reasons for a decision as a necessary element of natural justice[7]. The denial of natural justice is an error of law[8] which, in the result, means that Mr Robb should have leave to appeal[9].
[7] Justice in Tribunals (3rd Ed) (Federation Press, Sydney, 2010) at p 249 para 13.2
[8] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
[9]Jimenez v Sternlight Investments t/a LJ Hooker Alexandra Hills[2010] QCATA 29
Mr Robb’s statement that he had not seen Mr Tunio’s affidavit is hard to interpret. In the material filed with this application, Mr Robb wants to respond to Mr Tunio’s affidavit of 15 May 2012. He does not say that Mr Tunio did not serve a copy of the affidavit. He does not say when the affidavit came to his attention. Given Mr Robb’s application to reopen, and the length of time between that order and the learned Adjudicator’s decision, I find it inconceivable that Mr Robb failed to protect his position by checking whether Mr Tunio filed material.
The appeals tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[10] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[11] 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.[12]
[10]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[11] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[12] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
Mr Robb is asking the learned Adjudicator to find that he loaned money to Mr Tunio and Mr Tunio failed to repay it. There is evidence that Mr Robb was helping Mr Tunio to gain lawful entry to Australia. There is some evidence that Mr Robb was attempting to charge Mr Tunio for this help. A settlement offer, after court proceedings have started is not evidence of the debt; it is simply an attempt to resolve a dispute. The parties’ character, and what they may or may not have done in Pakistan or elsewhere, is irrelevant. There is no evidence of a loan. The learned Adjudicator’s decision to dismiss Mr Robb’s claim can be supported by the evidence and I can find no good reason to overturn it.
Although leave to appeal is granted, the appeal is dismissed.
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