Vann v James
[2013] QCATA 353
•26 September 2013
| CITATION: | Vann v James [2013] QCATA 353 |
| PARTIES: | Mr Mark Vann (Appellant) |
| V | |
| Ms Tracey James (Respondent) |
| APPLICATION NUMBER: | APL066 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe OAM |
| DELIVERED ON: | 26 September 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | MINOR CIVIL DISPUTE – where loan – where no documentary evidence of loan – whether findings of de facto relationship open on the evidence – where allegation of bias – whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549; Chambers v Jobling (1986) 7 NSWLR 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 |
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
Mr Vann and Ms James were in a relationship for about three years. Nine months into the relationship, Mr Vann loaned Ms James $25,800. He says she paid some of that money back. When the relationship ended, Mr Vann brought a claim for $10,000 still owing.
An Adjudicator of the tribunal found that Mr Vann loaned the money to Ms James within the context of a de facto relationship and without the intention to creation a legally binding transaction. He dismissed Mr Vann’s claim.
Mr Vann wants to appeal that decision. He says that Ms James’ claims were false and misleading; she provided no evidence to support them; and the learned Adjudicator did not ask for any evidence from her. He says that the transcript of the hearing shows confusion and bias in the learned Adjudicator’s summing up.
The appeals tribunal issued directions on 26 February 2013 requiring the parties to file documents. Paragraph 5 of those directions provided that, if Mr Vann did not comply with directions by particular dates, his application for leave to appeal would be dismissed. Mr Vann did not file submissions by 5 April 2013, as required. His application for leave to appeal is, therefore, automatically dismissed. However, in giving these reasons, I have also considered the substance of Mr Vann’s application.
Because this is an appeal from a decision of the tribunal in its 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.
The appeals tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[5] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[6] 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.[7]
[5]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[6] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[7] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
I have listened carefully to the transcript. Mr Vann’s documentary evidence of the loan is not signed, or otherwise acknowledged in writing, by Ms James. The learned Adjudicator had to decide between the oral evidence of two parties. Both parties gave sworn evidence.
The learned Adjudicator focussed on the agreed evidence of the parties. Both Mr Vann and Ms James said that they had been “dating”, exclusive of other parties, for about three years. Both agreed that it was a sexual relationship. Both agreed that they had personal possessions at each other’s house. Ms James told the learned Adjudicator that she cooked for Mr Vann, looked after his dog and contributed to the cost of holidays and trips together[8]. She said that Mr Vann was her nominated contact for her employer, and that he collected her son after school. She told the learned Adjudicator that, when she moved in with Mr Vann, she gave away her furniture and some possessions.
[8] Transcript at 42:20.
The learned Adjudicator asked Mr Vann whether he wanted to say anything in reply to Ms James’ evidence. Mr Vann admitted that he was the primary contact for Ms James’ employer. Mr Vann said that he collected Ms James son so that she could save the cost of after school care but he “didn’t want to.” Significantly, Mr Vann did not deny that Ms James gave away her possessions when she moved in with him. He did not deny that Ms James cooked for him, looked after his dog and contributed to holiday costs.
Reasonable minds may differ about the evidence. It is not my task to decide where the truth lay as between the competing versions given by the parties.[9] My sole duty is to determine whether there is an error in the primary decision. The learned Adjudicator’s decision is open on the evidence and I can find no compelling reason to come to a different view.
[9] Fox v Percy (2003) 214 CLR 118 at 129 per Gleeson CJ, Gummow and Kirby JJ.
Bias is a very serious allegation. The test is[10]:
… if a fair-minded lay bystander might reasonably apprehend that the decision-maker might not bring an impartial mind to the determination of the issues that he or she must decide.
[10] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
I recognise that Mr Vann is not happy with the learned Adjudicator’s decision. That is not enough to demonstrate bias. Having listened to the transcript, I can find no justification for Mr Vann’s assertion.
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.
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