Terranova v Mason
[2011] QCATA 140
•22 June 2011
| CITATION: | Terranova v Mason [2011] QCATA 140 |
| PARTIES: | Mr Tony Terranova |
| v | |
| Mr Simon Mason |
APPLICATION NUMBER: APL004-11
| MATTER TYPE: | Appeals |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Richard Oliver, Senior Member Peta Stilgoe, Member |
DELIVERED ON: 22 June 2011
DELIVERED AT: Brisbane
ORDERS MADE: Leave to appeal refused.
| CATCHWORDS: | MINOR CIVIL DISPUTES – leave to appeal – where appellant claimed no evidence to support decision – where appellant claimed adjudicator made decision before all evidence was presented – whether grounds for 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 on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Mr Oliver
In this matter the Appeal Tribunal consisted of Ms Stilgoe, QCAT Member and me. I have had the benefit of reading her reasons in draft. I agree with her reasons, and her conclusions, and the order she proposes.
Ms Stilgoe
Mr Mason is a stonemason. In 2007 he undertook work on 18 granite basins for a retirement village project in Sandgate. Mr Mason says that the work was undertaken at Mr Terranova’s request so, on 28 August 2007, Mr Mason issued a tax invoice to Mr Terranova for $3,300.
Mr Terranova did not pay the invoice. Mr Mason instituted proceedings in the Magistrates Court. For reasons unknown to the tribunal, the Magistrates Court proceedings went no further than the defence so the proceeding was transferred to the tribunal’s minor civil dispute jurisdiction for determination. On 15 December 2010, the learned Adjudicator found in favour of Mr Mason and ordered Mr Terranova to pay the amount of the claim plus interest and the filing fee, a total of $4,602.
Mr Terranova has appealed the learned Adjudicator’s decision on these grounds:
a) The learned Adjudicator asked for a sworn statement of evidence but made her decision before that document was filed in the tribunal. Mr Terranova has since filed a sworn statement which he says supports the evidence at the hearing and that this is the only credible evidence available to the learned Adjudicator.
b) There was no evidence of a debt due presented to the tribunal.
c) The project on which Mr Mason worked was owned by a company. Mr Terranova was a director of the company so he would never have authorised work to be billed to him personally rather than the company.
d) Mr Mason was supported by another party at the hearing whereas Mr Terranova did not have anyone to represent him.
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?
Mr Terranova’s first ground of appeal is misconceived. On 6 December 2010, the learned Adjudicator directed that Mr Mason could file and serve a sworn affidavit of Mr Casasola in response to the statement tendered at the hearing. That sworn statement was to be filed and served by 13 December 2010. Mr Terranova’s right to file a sworn statement arose only if Mr Mason took advantage of his right to file material. Mr Terranova’s right to file material was limited to a response to any material filed by Mr Mason. Accordingly, the learned Adjudicator did not call for Mr Terranova to provide a sworn statement from Mr Casasola. Mr Mason did not file an affidavit from Mr Casasola so Mr Terranova had no right to file any material in reply and the learned Adjudicator was free to make her decision when she did.
There was evidence of a debt due from Mr Terranova to Mr Mason. The learned Adjudicator had a copy of the invoice dated 28 August 2007 and Mr Mason gave evidence about how the debt arose. Mr Terranova, of course, gave evidence denying the debt. The fact that there was conflicting evidence about whether or not there was a debt and by whom the debt was owed is a different matter from saying that there was no evidence of a debt.
Mr Terranova told the learned Adjudicator that, if a debt was due, it was owed by the developer company of which he is a director.[1] The contrary evidence from Mr Mason was that he only dealt with Mr Terranova personally and that Mr Terranova never mentioned the name of the company.
[1] Transcript page 13, lines 18-20.
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.
The learned Adjudicator considered the evidence carefully. She preferred the evidence of Mr Mason because she found Mr Terranova’s evidence “conflictual” and that he was prepared to distort the facts to support his own case. The learned Adjudicator did not consider Mr Casasola’s statement of much assistance because of internal inconsistencies and vagueness about what he did or did not witness, particularly as he was not available for cross-examination. The evidence is capable of supporting the learned Adjudicator’s findings that there was a debt due from Mr Terranova personally to Mr Mason and there is no compelling reason to disturb those findings.
Mr Terranova’s final point is that Mr Mason was represented by a commercial agent at the hearing. An examination of the minor civil disputes files shows that Mr Haberfield acted as Mr Mason’s agent at an appearance on 4 June 2010 so it should not have been a surprise for Mr Terranova to see Mr Haberfield again. The learned Adjudicator did not allow Mr Haberfield to appear on behalf of Mr Mason, merely to assist him.[5] That is a common practice in this jurisdiction.
[5] Transcript page 3, lines 13-18.
Mr Haberfield did not address the learned Adjudicator on substantive matters. His submissions were limited to more technical issues such as bailiff’s costs, interest and the identity of the parties. As the learned Adjudicator’s decision was based on matters of credit as between Mr Mason and Mr Terranova, nothing turns on her decision to allow Mr Haberfield to assist Mr Mason at the hearing.
There is no important question which requires a decision of the appeals tribunal; there is no reasonably arguable case of error; there is no reasonable prospect that Mr Terranova will achieve substantive relief on appeal and there is no substantial injustice. Leave to appeal should be refused.
0
3
0