Venables v East Coast Car Rentals
[2013] QCATA 143
•14 May 2013
| CITATION: | Venables v East Coast Car Rentals [2013] QCATA 143 |
| PARTIES: | Mr Gordon Thomas Venables (Applicant/Appellant) |
| v | |
| East Coast Car Rentals (Respondent) |
| APPLICATION NUMBER: | APL049-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Senior Member |
| DELIVERED ON: | 14 May 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal granted. 2. Appeal allowed 3. The decision of 13 December 2012 is set aside. 4. The application by East Coast Car Rentals is dismissed. |
| CATCHWORDS: | MINOR CIVIL DISPUTE – traffic accident - where respondent at hearing neither the driver nor the owner of the car – where applicant did not provide evidence of ownership - whether grounds for leave to appeal Cachia v Grech [2009] NSWCA 232 Chambers v Jobling (1986) 7 NSWLR 1 Dearman v Dearman (1908) 7 CLR 549 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
On 10 February 2011, a Black and White taxi ran up the back of a car owned by East Coast Car Rentals. The driver of the taxi was Nanai Leitutua. East Coast Car Rentals wrote to Mr Leitutua claiming the cost of the damage to its car. He referred East Coast to the taxi company manager, Mr Venables. East Coast received no satisfaction so it brought a claim against Mr Venables. The Tribunal ordered Mr Venables pay East Coast $1,938.63.
Mr Venables wants to appeal that decision. He says that he is neither the driver nor the owner of the taxi.
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.
Mr Venables has filed fresh material with his response to the appeal. The Appeals Tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined[5]. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Mr Venables have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?[6]
[5] ss 137 and 138 QCAT Act
[6] Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408
Mr Venables did not appear at the Tribunal hearing and he does not explain why. However, the material before the learned Adjudicator shows that Mr Venables was not the driver of the car. At the hearing, East Coast gave the learned Adjudicator no evidence about the owner of the taxi. In fact, when asked, Ms Berrell on behalf of East Coast was less than frank with the learned Adjudicator.[7] She asserted that Mr Venables was the owner of the taxi but the fresh material shows that East Coast had written to a company, S V Browning Pty Ltd and Mr Venables had responded on that company’s letterhead, as “manager”.
[7] Transcript page 5, lines 2-10, 25-28
The fresh evidence will have an important impact on the result of the case and should be admitted.
The Appeals Tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[8] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[9] 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.[10]
[8]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[9] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[10] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
The learned Adjudicator was led into error by East Coast. Mr Venables was not the driver of the taxi, as East Coast initially claimed. He was not the owner of the taxi, and East Coast knew that to be the case. East Coast did not do a search of the taxi’s registration number. It did not produce copies of its correspondence with Mr Venables at the hearing. If it had done any of these things, the learned Adjudicator would have made the correct decision - that Mr Venables had no responsibility for the damage to East Coast’s car. East Coast should, in future, take care to ensure proper searches are done and the Tribunal is not misled.
Leave to appeal should be granted and the appeal allowed. The learned Adjudicator’s decision of 13 December 2012 is set aside.
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