Rodgerson v The Phone Shop
[2013] QCATA 235
•26 August 2013
| CITATION: | Rodgerson v The Phone Shop [2013] QCATA 235 |
| PARTIES: | Ms Lynn Rodgerson (Appellant) |
| V | |
| The Phone Shop (Respondent) |
| APPLICATION NUMBER: | APL055 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Senior Member |
| DELIVERED ON: | 26 August 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.
REASONS FOR DECISION
Ms Rodgerson bought a mobile phone from The Phone Shop in January 2012. She had problems with the phone so she returned it and asked for her money back. The Phone Shop refused so Ms Rodgerson filed a claim in the tribunal. The tribunal dismissed her claim.
Ms Rodgerson wants to appeal that decision. At the time of the learned Adjudicator’s decision, Ms Rodgerson had thrown her phone away and she thought that it was lost forever. The sole ground of appeal is that Ms Rodgerson has now found her phone and she wants the learned Adjudicator to decide the case again with reference to the phone.
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 Rodgerson 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
Ms Rodgerson says she has found the phone but she has not supported that statement in any meaningful way. She has not provided a photo of the phone, the box or the instructions. The appeals tribunal needs more than a simple statement to allow fresh evidence to be admitted. Even so, Ms Rodgerson has not given The Phone Shop an opportunity to look at the phone. She has not, as both the learned Adjudicator and The Phone Shop suggested, returned it to the manufacturer to have it examined. She has not had it tested by an independent phone seller or repairer. She has not provided any evidence to show that the phone is faulty.
While I accept that Ms Rodgerson thought the phone was not available at the hearing, I do not accept that the phone, without further evidence, will have an important impact on the result of the case. The phone should not be admitted into evidence 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.
Ms Rodgerson has not pointed to any error by the learned Adjudicator. The learned Adjudicator did not accept Ms Rodgerson’s evidence that the phone was defective. There is nothing in the transcript to persuade me he should have taken a different view of the facts.
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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