Thorley's Products Pty Ltd v Michael
[2011] QCATA 277
•20 September 2011
| CITATION: | Thorley’s Products Pty Ltd v Michael [2011] QCATA 277 |
| PARTIES: | Thorley’s Products Pty Ltd t/as Spectrum RV |
| v | |
| Mr Paul Michael |
APPLICATION NUMBER: APL225 -11
| MATTER TYPE: | Appeals |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Peta Stilgoe, Acting Senior Member |
DELIVERED ON: 20 September 2011
DELIVERED AT: Brisbane
ORDERS MADE: Leave to appeal refused.
| CATCHWORDS: | MINOR CIVIL DISPUTE – where applicant did not appear at hearing – where leave to reopen refused – whether grounds for acceptance of fresh evidence – whether grounds for leave to 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 and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Mr Michael bought a Big Sky 5th wheel caravan from Thorley’s Products Pty Ltd. He experienced a number of problems with the caravan so he had them attended to and then filed an application in the minor civil disputes jurisdiction of the tribunal claiming $13,261.89 compensation from Thorley’s Products. Thorley’s Products did not appear at the hearing of Mr Michael’s application. On 21 April 2011, the learned Member ordered Thorley’s Products pay Mr Michael $12,187.10 by 12 May 2011.
Thorley’s Products applied to reopen the learned Member’s decision. That application was refused.
Thorley’s Products has now appealed the learned member’s decision on these grounds:
a) Mr Michael is in breach of the warranty contract because he refused to bring the caravan in for repair.
b) The hearing occurred without Thorley’s Products’ knowledge.
c) Thorley’s Products was given no opportunity to present its case.
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?
The application for leave to appeal is, in part, an application for a review of the tribunal’s decision not to allow the reopening of the proceeding. Section 139(5) of the Queensland Civil and Administrative Tribunal Act 2009 states that the tribunal’s decision about a decision to reopen is final and cannot be challenged, appealed against, reviewed, set aside or called into question. The tribunal has no power to consider the appeal to the extent that it is an appeal against the decision to refuse the reopening.
Thorley’s Products says that, although the registered address is 16 Joanne Court Currumbin Valley:
“All correspondence gets sent to our PO Box that is related to normal business. Mail sent to our house is not opened or actioned on a regular basis.”
Thorley’s Products’ contract/order form shows 16 Joanne Court as the first address on its letterhead. Mr Michael sent the application to that address. He received a registered post receipt notification and Thorley’s Products has referred to the Form 1 Advice to Respondent in its appeal material. There is no doubt that Thorley’s Products received notice of the application.
The tribunal sent all subsequent notices to the same address. They were not returned. Thorley’s Products did not ask the tribunal to send documents to its PO Box until a letter of 23 May 2011. Thorley’s Products failure to receive notice of the hearing was a result of its own inattention. The tribunal’s decision not to reopen the proceeding was appropriate.
Thorley’s Products has provided statements and reports with its application for leave to appeal. The appeal tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined[1]. Ordinarily, an applicant for leave to adduce such evidence must satisfy each of the following tests:
a) The evidence could not have been obtained with reasonable diligence for use at the trial;
b) The evidence, if allowed, would probably have an important impact on the result of the case (although it need not be demonstrated that it would be decisive); and
c) That the evidence is credible though it need not be incontrovertible.[2]
[1] Sections 137 and 138 QCAT Act.
[2] 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. As I have already determined, Thorley’s Products has provided no credible explanation as to why it did not submit material to the hearing on 21 April 2011. The evidence submitted recently should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Member.
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.[3]
[3]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.[4] 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.[5]
[4] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[5] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
Even though Thorley’s Products was not represented at the hearing, the learned Member undertook a careful consideration of the evidence. There is nothing in the transcript that persuades me that the learned Member should have taken a different view of the facts.
The issue of the warranty terms was not specifically raised at the hearing but the learned Member had the terms of the contract before him and heard evidence that some of Mr Michael’s problems occurred “on the road”. It seems that the caravan could not have been returned to Thorley’s Products unless those repairs were undertaken. Mr Thorley, of Thorley’s Products, was aware that Mr Michael had some repairs undertaken by others.[6] He did not object at the time. In the circumstances, the learned Member’s determination that Thorley’s Products should compensate Mr Michael for those repairs was reasonable.
[6] Transcript page 9.
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; and there is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.
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