Rowley v Robinson
[2012] QCATA 268
•20 December 2012
| CITATION: | Rowley v Robinson and Anor [2012] QCATA 268 |
| PARTIES: | Matt Rowley t/as Green Garden Guys |
| v | |
| Jenny Robinson Steve Robinson |
| APPLICATION NUMBER: | APL255-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Senior Member |
| DELIVERED ON: | 20 December 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | BUILDING – where fresh evidence filed on application for leave to appeal – whether special grounds exist to allow fresh evidence – whether evidence at hearing credible Dearman v Dearman (1908) 7 CLR 549 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Mr and Mrs Robinson engaged Mr Rowley to erect part of a retaining wall, lay paving around a pool and install a pool fence at their home. Mr Rowley did the work and was paid but Mr and Mrs Robinson were not happy with the quality of the work. They brought an application claiming the costs of rectification of Mr Rowley’s work. The member found that Mr Rowley’s work was defective and ordered him to pay Mr and Mrs Robinson $12,716.00.
Mr Rowley has filed an application for leave to appeal. He says that much of the evidence that the member relied on in making her decision was incorrect and/or falsely provided. Mr Rowley says that Mr Robinson provided false information when giving evidence under oath as did Mr Elliot. Mr Rowley says that the learned member should not have relied on the DVD from Mr Elliot because it did not provide any technical information and did not provide quality views of the work in question. Oddly, Mr Rowley suggests that the learned member didn’t rely on the DVD in any event, because she was writing notes at the time. He considers the learned member’s lack of attention was detrimental to his defence.
Mr Rowley has filed new evidence from expert witnesses who did not appear at the original hearing. He has also made comments which might be classified as further evidence although they are more in the way of personal observations about what might have motivated Mr and Mrs Robinson to bring the proceeding and the effect of this proceeding on Mr Rowley’s own family.
Because this is an appeal from a decision of the tribunal on a question of fact, leave is necessary. Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?
The fresh evidence
An appeal tribunal should only allow new evidence on the hearing of the appeal if there are “special grounds”. There are three conditions for special grounds[1]. Firstly, Mr Rowley must show that he could not, with reasonable diligence, have obtained the evidence for the hearing. Secondly, the evidence must probably have an important influence on the outcome of the case. Thirdly, the evidence must be credible.
[1] Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.
I accept that evidence may have an important influence on the outcome of the case. I accept that the evidence may be credible. However, I do not accept that Mr Rowley could not have obtained this evidence before the hearing. Mr Rowley could have asked these witnesses to provide statements prior to the hearing. He does not explain why he did not do so. He does not explain what steps he did take to get statements from these witnesses prior to the hearing.
Mr Rowley asked his witnesses to comment on the evidence at the hearing and the learned member’s decision. It is clear that Mr Rowley now wants to plug the gaps in his case. It is too late for that. I do not consider that special circumstances exist which would justify allowing Mr Rowley to rely on the fresh evidence he has filed with his application.
The evidence was wrong or fraudulent
Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[2]
[2]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.[3] 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.[4]
[3] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[4] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
Mr Rowley had an opportunity to test the evidence at the hearing. All of the matters Mr Rowley raises in the application for leave to appeal were raised in the material before the learned member. The learned member found that Mr and Mrs Robinson presented credible evidence from independent experts and Mr Rowley had not presented anything to contradict that evidence[5]. I can find no reason to take a different view.
The DVD
[5] Robinson v Rowley [2012] QCAT unreported at [25]
Mr Rowley’s complaint about the quality and truthfulness of the DVD were the subject of submissions to the learned member. Mr Elliott, who appeared on the DVD, also gave evidence at the hearing.
Even if the DVD was of doubtful quality, the learned member had the advantage of oral evidence from Mr Elliott, the report from Mr Groom and oral evidence from Mr Groom. The DVD was just one part of the evidence; its use or non-use (depending upon Mr Rowley’s view of whether the learned member watched it) does not alter the fact that the learned member’s findings were open on the evidence.
Conclusion
Leave to appeal is refused.
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