Todd v Downing
[2011] QCATA 74
•29 March 2011
| CITATION: | Todd v Downing [2011] QCATA 074 |
| PARTIES: | Andrew Todd (Applicant/Appellant) |
| v | |
| Christopher Downing (Respondent) |
| APPLICATION NUMBER: | APL291-10 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 29 March 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Application for leave to appeal refused. |
| CATCHWORDS : | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where the respondent purchased an outboard motor from the applicant/appellant – where the respondent alleged that the oil injection system had been disconnected and the motor was damaged – where the applicant/appellant did not appear at the hearing at first instance – where the Magistrate at first instance ordered that the applicant/appellant pay damages – where the applicant/appellant now seeks leave to appeal that decision – where the application is effectively an attempt to overturn a decision refusing to reopen the case – whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act 2009, ss 137, 139, 142 |
APPEARANCES and REPRESENTATION (if any):
By order of the Appeal Tribunal the matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Act 2009 (QCAT Act).
REASONS FOR DECISION
In March 2010 Mr Downing purchased a boat and outboard motor, and trailer, from Mr Todd. Mr Downing alleges that at the time of the purchase Mr Todd represented to him that the engine had an oil injection system, which was functioning. Later, Mr Downing alleges, he discovered the oil injection system had been disconnected, as a result of which the motor was damaged during his use of it. He brought proceedings in QCAT’s Minor Civil Disputes jurisdiction for the cost of a new motor.
The matter was heard by a Magistrate sitting as a QCAT Ordinary Member on 19 August 2010. Mr Todd did not attend the hearing. The learned Magistrate, after hearing from Mr Downing and reviewing his evidence, assessed his damages at $5,450.00 and ordered that Mr Todd pay him that sum, plus filing fees of $90.00.
Mr Todd has sought leave to appeal the decision. Leave is necessary: QCAT Act, s 142(3)(a)(i).
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 Todd’s submissions in support of his application for leave to appeal raise two principal grounds: first, that he did not receive notice of the court hearing and was wrongly denied the opportunity to present his case to the Magistrate; and, secondly, that he has evidence rebutting Mr Downing’s claims which mean he could have successfully resisted the judgment against him.
The first point has some history to it: when Mr Todd did not appear at the hearing the learned Magistrate – as the transcript of the hearing shows – carefully reviewed documents on the court file concerning Mr Todd’s proper address for service. As the Magistrate observed, after Mr Downing filed his original application in the Minor Civil Dispute proceedings two affidavits were received from Mr Todd, and another person, on his behalf. Both affidavits showed an address to which the ultimate Notice of Hearing was sent – yet Mr Todd now claims that he had left that address at some earlier time, and correspondence there did not come to his attention.
The matter has also been the subject of an earlier application in QCAT by Mr Todd to have the proceedings reopened on the same basis. Reopening is permitted under the QCAT Act if a party does not appear at a hearing, but has a reasonable excuse for not attending: s 137(a).
Mr Todd filed an application for reopening on 6 October 2010 supported by a submission in writing in which he alleged that the first he knew of the hearing of his case was when Mr Downing contacted him, demanding payment of the judgment. He claimed that mail had been wrongly ‘…sent to my previous address’ and that is why he did not know of the hearing.
In response Mr Downing has, however, filed material which shows:
a)His original claim had been served upon Mr Todd at 3 Seabreeze Court, Slade Point on 28 May 2010, after an earlier attempt at service at another address, 2/68 Pacific Esplanade, Slade Point;
b)On 25 June 2010, however, Mr Todd filed affidavits showing his address and that of his witness as 2/68 Pacific Esplanade, Slade Point; and,
c)Notice of a mediation was sent to Mr Todd at 2/68 Pacific Esplanade, Slade Point; and he later attended the mediation by telephone on 27 July 2010.
[10] Under s 139 the Tribunal must consider any written submissions in support of an application to reopen, but may only order reopening if it considers that a ‘reopening ground’ exists. The term ‘reopening ground’ is defined in s 137 to mean that a party did not appear at the proceeding but has a reasonable excuse for not attending or that a party would suffer substantial injustice if the proceedings were not reopened because significant new evidence has arisen, and that evidence was not reasonably available when the proceeding was first heard and decided.
[11] Mr Todd does not appear to have argued the second ground when he filed his reopening application. Another Magistrate, again sitting as an ordinary Member of QCAT, dealt with the reopening application on 14 October 2010 and refused it. Under s 139(5) that decision is final and cannot be challenged, appealed against, reviewed, set aside or called in question in any other way, whether under the Judicial Review Act 1991 or otherwise.
[12] It is inescapable that Mr Todd’s present application for leave to appeal is an attempt to challenge or appeal against the learned Magistrate’s decision to refuse a reopening and, on that basis alone, it offends s 139(5) and must be refused.
[13] Even if that circumstance did not arise, however, there is no basis upon which leave ought to be granted here. It is plain that, during the relevant period between the service of the original Minor Civil Dispute proceedings, and the hearing date, Mr Todd was himself the instrument of whatever confusion arose about his correct address for service. He filed and served affidavits showing what he now alleges to be an incorrect address for notices.
[14] In those circumstances, his credit about these matters is poor and there is no basis for suggesting the learned Magistrate who heard and determined the Minor Civil Dispute was wrong, or misled, or fell into error in concluding that proper notice of the proceedings had been sent to Mr Todd.
[15] As it happens further comfort for that conclusion can be taken from the decision of another Magistrate, refusing the application to reopen.
[16] Finally, nothing in the additional evidentiary material that Mr Todd seeks to present is persuasive that the learned Magistrate’s decision involved incorrect findings, or serious errors of fact or law. The learned Magistrate explained his decision in reasons which followed, with respect, logically and correctly from the evidence before him.
[17] The application for leave to appeal is refused.
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