Steele t/as Mission Beach Pool & Property Services v Bushell

[2013] QCATA 83

CITATION: Steele t/as Mission Beach Pool & Property Services v Bushell [2013] QCATA 83

PARTIES:	Mr Christopher Thomas Steele t/as Mission Beach Pool & Property Services (Applicant/Appellant)
V
Mr Ernest Bushell (Respondent)

APPLICATION NUMBER: APL353 -12

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Peta Stilgoe, Senior Member

DELIVERED ON: 13 March 2013

DELIVERED AT: Brisbane

ORDERS MADE: Leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – whether grounds for leave to appeal

Dearman v Dearman (1908) 7 CLR 549, cited
Fox v Percy (2003) 214 CLR 118, cited

Chambers v Jobling (1986) 7 NSWLR 1, cited

Croney v Nand[1998] QCA 367; [1999] 2 Qd R 342, cited
Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd[2008] QCA 322, cited
Chief Executive Officer, Department for Child Protection v S[2007] WASCA 230, cited

Kostopoulos v G E Commercial Finance Australia Pty Ltd , cited

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

1. Cyclone Yasi destroyed Mr Bushell’s home in Cardwell. It also damaged his pool. Mr Bushell engaged Mr Steele to restore his pool but he was not happy with the result. He filed an application in the Tribunal claiming a refund of the money he paid to Mr Steele.

2. The dispute came on for hearing late in the afternoon of 10 July 2012. With Mr Steele’s agreement, the learned Adjudicator took evidence from Mr Bushell and then adjourned the hearing. The learned Adjudicator directed that copies of exhibits be sent to Mr Steele and that he have 21 days to file and serve submissions in response. Mr Steele sent a letter to the Tribunal in compliance with the learned Adjudicator directions. She was not persuaded by those submissions and ordered Mr Steele pay Mr Bushell $9,376.46

3. Mr Steele wants to appeal that decision. He says he misunderstood the Tribunal’s order of 10 July 2012 so that he responded only to the exhibits, not the issues. Mr Steele wants the opportunity to make further submissions and provide further evidence on the issue.

4. Because this is an appeal from the Tribunal’s 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.

5. The learned Adjudicator’s order is clear. She explained the effect of the order before making it.[5] There is no basis for Mr Steele’s misunderstanding the effect of the order.

   [5]        Transcript of Proceedings, 3.

1. Mr Steele wants to argue this case again. He has filed submissions in the application for leave to appeal that go to the facts and issues that the learned Adjudicator decided. He has filed fresh evidence.

1. The Appeals Tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined.[6] Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Mr Steele 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?[7]

   [6]            Queensland Civil and Administrative Tribunal Act 2009 ss 137, 138.

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

1. 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. Mr Steele’s explanation as to why this material was not available earlier is not convincing. That evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Adjudicator.

1. 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.

1. The evidence can support the learned Adjudicator’s findings. There is nothing in the transcript or the material filed that persuades me the learned Adjudicator should have taken a different view of the facts.

1. 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.