Robinson v Corr
[2011] QCATA 302
•2 November 2011
| CITATION: | Robinson v Corr [2011] QCATA 302 |
| PARTIES: | Maureen Claire Robinson (Applicant/Appellant) |
| v | |
| Nova Corr (Respondent) |
| APPLICATION NUMBER: | APL281-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member |
| DELIVERED ON: | 2 November 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal is refused. |
| CATCHWORDS: | Minor Civil Dispute – where no error of law or fact established Queensland Civil and Administrative Tribunal Act2009, s 142(3) Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
On 27 August 2009 Ms Robinson purchased a deluxe adjustable health bed from the respondent for $4,980. Some time later in 2009 Ms Robinson contacted the respondent to complain that the mattress had collapsed and that she was unhappy with the bed.
In January 2010 the respondent went to Ms Robinson’s place, looked at the bed and told her they would replace the mattress. It took some time for this to occur but eventually a new mattress was given to Ms Robinson. Unfortunately the colour of the mattress did not match the base as it was blue whereas the original mattress and base was cream, even so she accepted the changeover. In any event, after a further period Ms Robinson again contacted the respondent to complain that the blue mattress had collapsed. It was decided that the cream mattress would be returned to Ms Robinson which occurred on 8 June 2010.
Because the blue mattress was going to be disposed of by the respondent, there was a discussion between Ms Robinson and Mr Atkinson of the respondent as a result of which Ms Robinson got to keep the blue mattress as well. She remained dissatisfied with the original product, and then brought an application in the minor civil disputes jurisdiction of the Tribunal for a refund of the cost of the bed in the sum of $5,072 which included the filing fee of $92.
The matter came on, eventually, for hearing and a Tribunal Adjudicator made a decision on 28 April 2011 dismissing Ms Robinson’s claim. From that decision, Ms Robinson filed an application for leave to appeal and appeal on 16 August 2011. Her complaint is that she did not “feel justice has been done in my case” and that she was only given papers from the registry saying her claim was dismissed.
The reasons delivered by the learned Adjudicator indicate that she gave a thorough and comprehensive consideration of the evidence in the matter and took into account all of Ms Robinson’s evidence as well as that of the respondent. She ultimately made findings of fact that the bed was not faulty and any stains to the original cream mattress were from the use of the bed by Ms Robinson and her husband. It is not for this Tribunal to disturb those findings of fact when they were clearly open on the evidence. Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts as found by the Tribunal, are supported by the evidence.[1]
[1]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
As this is an appeal from the minor civil dispute, leave to appeal is necessary.[2] 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 to the applicant caused by some error?[5] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[6]
[2] Section 142(3).
[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 only basis upon which Ms Robinson says that the appeal should succeed is because she feels that justice has not been done. She has been unable to identify any error in law on the part of the learned Adjudicator. The facts as found were open on the evidence and there can be no suggestion of substantial injustice. There is nothing in Ms Robinson’s submissions or the reasons of the learned adjudicator which warrant the intervention of this Appeal Tribunal. Although Ms Robinson may disagree with the factual findings, as I have indicated, those findings were open on the evidence.
As no error of law has been identified nor is any apparent, leave to appeal must be refused.
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