Shekhar v Krsteski

[2014] QCATA 246

CITATION: Shekhar v Krsteski [2014] QCATA 246

PARTIES:	Leah Carolyn Shekhar (Applicant/Appellant)
v
Emma Joy Krsteski (Respondent)

APPLICATION NUMBER: APL175 -13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Thomas, President

DELIVERED ON: 26 August 2014

DELIVERED AT: Brisbane

ORDER MADE: Application for leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where respondent loaned dog for breeding on condition that respondent would get pick of the litter – where applicant breeder claimed no litter resulted – where litter advertised for sale within appropriate timeframe – where tribunal found dog did sire litter – where no DNA evidence produced at hearing – where parentage certificate filed with application for leave to appeal – whether  grounds for leave to appeal

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 142(3)(a)(i)

Chambers v Jobling (1986) 7 NSWLR 1, cited
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, applied
Dearman v Dearman (1908) 7 CLR 549, applied
Fox v Percy (2003) 214 CLR 118, applied
Pickering v McArthur [2005] QCA 294, applied

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. In July 2011, Ms Krsteski bought a dog (“Alaska”) from Ms Shekhar for $2,500. Alaska was advertised as a pure bred British bulldog.

2. After a few weeks, Ms Krsteski concluded that Alaska was not a pure bred British bulldog. Alaska became ill. The condition is hereditary and Alaska is not fit for breeding.

3. Ms Krsteski already owned a British bulldog, Escobar. She agreed to loan Escobar to Ms Shekhar for breeding on the condition that Ms Krsteski would get the pick of the litter.

4. Ms Shekhar took Escobar as agreed. She later claimed that Escobar was not fit for breeding as well and, therefore, no litter resulted. However,      Ms Shekhar advertised a litter of puppies for sale in a timeframe that coincided with Escobar’s visit.

5. Ms Krsteski filed a claim for a refund of Alaska’s purchase price and payment for Escobar’s service, being the equivalent of the sale price of a pure bred puppy. A Magistrate, sitting as a member of the tribunal, refused the claim for Alaska but ordered Ms Shekhar pay Ms Krsteski $2,500 for the loan of Escobar.

6. Ms Shekhar seeks to appeal that decision on the basis that the Magistrate found, incorrectly, that Escobar sired the litter. She has filed fresh evidence – a canine parentage report – to support her application. She maintains that Escobar did not father any puppies.

7. Such evidence will only be accepted by the appeal tribunal if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests: with reasonable diligence, could the evidence have been obtained 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?[1]

   [1]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.

1. On 14 February 2013, the hearing was adjourned so that Ms Shekhar could provide DNA evidence[2]. On 7 March 2013, Ms Shekhar told the learned Magistrate that she couldn’t get DNA testing done because the real sire was not available.[3] As the learned Magistrate observed, the central issue was whether Escobar sired any puppies.

   [2]Transcript page 1-34, line 38 to page 1-35, line 5.

   [3]Transcript page 1-35, lines 23-33.

1. An application for leave to appeal is not, and should not be, an attempt to correct any deficiencies of a party’s case at the initial hearing. Ms Shekhar has not explained why this material is now available when she could not provide it to the learned Magistrate, even after an adjournment. The evidence has other difficulties. Ms Krsteski submits that the test is an online test, conducted solely on information provided by Ms Shekhar. There is no independent verification that the samples came from the particular dogs. The evidence is not credible. It should not be admitted and the application for leave to appeal must proceed on the basis of the evidence that was before the learned Magistrate.

1. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[4] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[5]

   [4]QCAT Act s 142(3)(a)(i).

   [5][2005] QCA 294 at [3].

1. The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[6]  An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[7] 

   [6]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.

   [7]Chambers v Jobling (1986) 7 NSWLR 1 at 10.

1. There is nothing in the transcript to persuade me that the view taken by learned Magistrate was not open on the facts, and there is no reasonably arguable case that the learned Magistrate was in error.

1. Leave to appeal should be refused.