Shearer v Hogg
[2013] QCATA 196
•1 July 2013
| CITATION: | Shearer v Hogg [2013] QCATA 196 |
| PARTIES: | Barry William Shearer (Appellant) |
| V | |
| Josephine Linda Hogg (Respondent) |
| APPLICATION NUMBER: | APL080 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe OAM, Senior Member |
| DELIVERED ON: | 1 July 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: |
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| CATCHWORDS: | MINOR CIVIL DISPUTE – where claim for money loaned during relationship – whether a debt – whether tribunal has jurisdiction – 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
Mr Shearer and Ms Hogg lived in a de facto relationship for some years. When it ended, Ms Hogg wanted to recover some money from Mr Shearer. She filed a claim for $21,250 that she says were loans from her to Mr Shearer or his son. The tribunal ordered Mr Shearer pay Ms Hogg $20,451.
Mr Shearer wants to appeal the learned Adjudicator’s decision. He says that the tribunal does not have jurisdiction to consider Ms Hogg’s claim. He says that the tribunal made conclusions that were not justified by the evidence. He says that he was denied natural justice because he was not present at the hearing.
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?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?[4]
[1] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2] Cachia v Grech [2009] NSWCA 232 at 2.
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4]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.
Mr Shearer’s submissions are, in part, a statement of evidence. He recites the facts of his relationship with Ms Hogg, and the exchange of funds, but he does not supply any documents to support his statement.
In response, Ms Hogg has filed fresh evidence. Much of it is documents that the learned Adjudicator asked about during the hearing but which she did not produce.
The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined[5]. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could the parties 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?[6]
[5] Queensland Civil and Administrative Tribunal Act 2009 ss 137, 138.
[6] 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. Although the parties have provided no explanation as to why this material was not available earlier, the evidence does have an important impact on the result of the case and it should be admitted.
The learned Adjudicator found that Ms Hogg’s claim was within the tribunal’s jurisdiction on the basis that it was a debt.[7] He drew that conclusion based on Ms Hogg’s evidence.
[7] Transcript page 8, lines 23-24.
The appeals tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[8] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[9] 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.[10]
[8]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[9] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[10] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
The only written evidence of any loan is the loan agreement between Mr Shearer, Ms Hogg and Mr Shearer’s son Brian dated 16 August 2010. As to the rest, Ms Hogg asks the tribunal to assume the fact of a series of loans, through a complex matrix of bank statement entries. The learned Adjudicator had doubts about Ms Hogg’s evidence[11]. The fresh evidence from both Mr Shearer and Ms Hogg show that the learned Adjudicator’s doubts were justified. Tellingly, although Ms Hogg’s diary entries refer to many other aspects of her relationship with Mr Hogg, and important events of the day, they do not refer to loans passing between them. The compelling inference from all of the evidence is that Ms Hogg and Mr Shearer did not keep loan accounts for each other but freely shared their available funds. I am satisfied that there was not a certain amount due from Mr Shearer to Ms Hogg but that any adjustment in their financial positions should be made in the family law jurisdiction.
[11] See, page 8, lines 33-45; page 10, lines 44-46; page 12, lines 4-6;
I do not need to consider Mr Shearer’s further submissions on the learned Adjudicator’s error of fact but I will address two other submissions.
There is nothing in the loan agreement to Brian that requires Mr Shearer to “underwrite” Brian’s obligation to Ms Hogg. If Brian defaulted on the loan, as he did, Ms Hogg’s rights are against Brian, not Mr Shearer. Ms Hogg has the benefit of an instalment order from the Local Court of New South Wales at Goulburn. She is not entitled to any additional relief from Mr Shearer.
Mr Shearer’s failure to attend the hearing is not a ground for appeal. He could have applied for a reopening. His application to dismiss or strike out Ms Hogg’s claim did not excuse his attendance at the hearing. I granted an extension for the time in which to file an appeal only because there appeared to be a registry error. Mr Shearer’s explanation for his failure to do anything about this matter, even with the benefit of the letter from Dr Brownbill, is not compelling.
Leave to appeal is granted and the appeal allowed. The decision of 12 January 2012 is set aside and Ms Hogg’s claim is dismissed.
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