Scardamaglia v Stallion Design Pty Ltd
[2011] QCATA 283
•29 September 2011
| CITATION: | Scardamaglia v Stallion Design Pty Ltd [2011] QCATA 283 |
| PARTIES: | James Scardamaglia Sonia Scardamaglia |
| v | |
| Stallion Design Pty Ltd |
APPLICATION NUMBER: APL277-11
| MATTER TYPE: | Appeals |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Peta Stilgoe, Acting Senior Member |
DELIVERED ON: 29 September 2011
DELIVERED AT: Brisbane
ORDERS MADE: Leave to appeal refused.
| CATCHWORDS: | MINOR CIVIL DISPUTE – whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Chambers v Jobling (1986) 7 NSWLR 1 |
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 FRO DECISION
In March 2009, Mr and Mrs Scardamaglia bought a lounge suite from Stallion Design Pty Ltd. Soon after delivery, on 2 June 2009, they noticed some defects in the suite. The details of what followed are set out in a previous decision of the appeal tribunal[1] and I do not propose to repeat them here except to record that Mr and Mrs Scardamaglia were seeking damages of $10,300, the price they paid for the lounge suite. At the first hearing before the tribunal, the learned Member ordered Stallion Design Pty Ltd pay Mr and Mrs Scardamaglia the full purchase price.
[1] Stallion Design Pty Ltd v Scardamaglia APL349-10 unreported.
That decision was set aside on an appeal by Stallion Design Pty Ltd and the proceeding was remitted to the minor civil disputes jurisdiction of the tribunal on the question of damages. On 14 July 2011, the learned Adjudicator determined that Stallion Design Pty Ltd should pay Mr and Mrs Scardamaglia $2,060.
Mr and Mrs Scardamaglia have appealed the learned Adjudicator’s decision on these grounds:
a) The “defendant’s” appeal was heard without the benefit of the applicants’ material being submitted to the tribunal.
b) The learned Adjudicator’s decision was wrong.
c) The tribunal’s original decision of 10 November 2010 should be reinstated.
Because this is an appeal from a decision of the tribunal in its minor civil dispute jurisdiction, 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?
It appears that the “defendant’s” appeal is a reference to APL349-10 and that Mr and Mrs Scardamaglia are now saying that the appeal tribunal did not have reference to their material when making its decision.
That submission is in the nature of an appeal from the decision of the appeal tribunal. I have no power to deal with that submission.[2] Even if I did have power, it seems that Mr and Mrs Scardamaglia’s submission is misconceived. The appeal tribunal had the benefit of their submissions from the original hearing and they filed comprehensive submissions in the appeal file on 28 January 2011.
[2] See s 150(1) QCAT Act.
The tribunal’s original decision of 10 November 2010 cannot be reinstated. It was set aside on appeal and the proceeding was remitted to the tribunal for a consideration of the appropriate damages to be awarded.
That leaves the submission that the learned Adjudicator’s decision was wrong. From the submissions filed in this appeal, it appears that Mr and Mrs Scardamaglia say that the learned Adjudicator erred in her findings of fact. 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.[3]
[3]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.[4] 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.[5]
[4] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[5] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
The learned Adjudicator heard evidence from both parties. She adjourned the hearing so that she could consider the material in the appeal file. She found, as a matter of fact, that:
a) Mr and Mrs Scardamaglia refused delivery of replacement goods in November 2009.
b) Stallion Design Pty Ltd continued to make those items available to them.
c) They also refused an offer to repair the suite.
d) Mr and Mrs Scardamaglia had been using the suite since its delivery in June 2009.
There is nothing in the transcript that persuades me that the learned Adjudicator should have taken a different view of those facts. The parties have filed extensive material in relation to these issues in four different iterations of the dispute. Their submissions are, essentially, unchanged. I understand that Mr and Mrs Scardamaglia would prefer that the original decision remained in force but that is no longer an option. I also understand that Mr and Mrs Scardamaglia do not like the decision of the learned Adjudicator, but that does not constitute grounds to set it aside.
There is no question of general importance that should be determined by the appeal tribunal; there is no reasonably arguable case that the learned Adjudicator was in error; there is no reasonable prospect of substantive relief on appeal; and 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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