Thackham v Dunne & Sweeney
[2010] QCATA 109
•14 December 2010
| CITATION: | Thackham v Dunne & Sweeney [2010] QCATA 109 |
| PARTIES: | Gary Vincent Thackham (Applicant/Appellant) |
| v | |
| Gerry Dunne and Richard Sweeney (Respondents) |
APPLICATION NUMBER: APL134-10
| MATTER TYPE: |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Justice Alan Wilson, President |
DELIVERED ON: 14 December 2010
DELIVERED AT: Brisbane
ORDERS MADE: Application for leave to appeal refused
| CATCHWORDS : | MINOR CIVIL DISPUTE – SERVICES RENDERED – where the appellant engaged the services of the respondent to renovate and repair a boat – where the appellant sought compensation for rectification and relief from payment – where adjudicator disallowed some parts of the claim and ordered lesser amount in compensation and relief from payment – where appellant alleges adjudicator based decision on wrong evidence and on hearsay – where applicant seeks to introduce new witness – whether any error on part of the adjudicator – whether appellant should be allowed to introduce new evidence – whether leave should be granted Queensland Civil and Administrative Tribunal Act 2009, s 28 Fox v Percy [2003] HCA 22, cited |
APPEARANCES and REPRESENTATION (if any):
By order of the Appeal Tribunal the application for leave to appeal (and appeal, if leave is granted) were directed to be determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Mr Thackham engaged Mr Dunne and Mr Sweeney to renovate and repair a boat. He alleged they did some of that work poorly and claimed almost $7,000.00 from them for the cost of rectification, as well as relief from paying Mr Dunne $1,080.00 which, Mr Dunne claimed, was still owed.
The matter came on for hearing before a QCAT Adjudicator on 28 May 2010. The transcript of the proceedings shows the hearing was long – it occupies 70 pages of recorded evidence, and submissions. At the end the Adjudicator reserved his decision and later delivered it, in writing, on 28 May 2010. He disallowed some parts of Mr Thackham’s claim but ordered that the respondents pay him $525.50, and that he be relieved from paying Mr Dunne $1,080.00.
Mr Thackham seeks leave to appeal that decision, alleging that the Adjudicator based his decision on wrong evidence, and evidence that was legally inadmissible because it was hearsay; and, because Mr Thackham now has a witness he would like to call to disprove things said at the hearing by Mr Dunne and Mr Sweeney.
QCAT is not bound by the rules of evidence: Queensland Civil and Administrative Tribunal Act 2009, s 28(3)(b); and, may inform itself in any way it considers appropriate: s 28(3)(c). That said, of course, the Tribunal will always strive to observe the rules of natural justice and to ensure that parties receive a fair hearing.
It is impossible to read the lengthy transcript and the learned Adjudicator’s careful, typed reasons for his decision without being compelled to the conclusion that Mr Thackham had a full and fair hearing at first instance. Both parties presented their evidence in an informal way and each was allowed the opportunity to talk about the issues but, at the commencement of the proceedings, the learned Adjudicator swore all three parties in and all gave evidence upon oath.
Nothing in the transcript, or the reasons, or Mr Thackham’s submissions is persuasive that the procedure miscarried or that any party gained any unfair advantage. In particular, it cannot be said that the respondents were able to get an unfair advantage through their evidence or that either party was able to gain an advantage through evidence which is usually inadmissible. In the nature of these kinds of proceedings the evidence often comes out in a conversational form, guided to relevant points by questions from the experienced Adjudicator. That is what occurred here.
My sole duty is to determine whether there is an error in the primary decision. It is not my task to decide where the truth lay as between the competing versions given by the parties[1]. 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 reasonable prospect of 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?
[1] Fox v Percy [2003] HCA 22 at [32] per Gleeson CJ, Gummow and Kirby JJ.
Where, as here, there is an allegation that findings are against the weight of evidence an Appeal Tribunal will only interfere if the conclusion at first instance is contrary to compelling inferences in the case. While Mr Thackham contends that different conclusions might have been reached by the learned Adjudicator, nothing in the evidence suggests the findings he made were not reasonably open or that it compelled the findings Mr Thackham would have preferred.
It is unclear why Mr Thackham did not call the witness whose evidence he now seeks to present. He must have appreciated that the respondents were contesting his claims and that he should be ready to present any relevant evidence.
Nothing in his submissions or in the transcript or the learned Adjudicators reasons suggests any error of fact or law, and the application for leave to appeal must be refused.
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