Walden v Li - [2019] QCATA 126

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Walden v Li [2019] QCATA 126

PARTIES:

ROBERT JOHN WALDEN
(appellant)

v

BO LI

(respondent)

APPLICATION NO/S:

APL250-18

ORIGINATING APPLICATION NO/S:

MCDO2220-17 Brisbane

MATTER TYPE:

Appeals

DELIVERED ON:

31 May 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

Leave to appeal refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where the parties involved in a motor vehicle collision – where the appellant had been convicted in the Magistrates Court of traffic offences – where the appellant has filed an appeal against the Magistrates Court convictions which had not been heard when the civil proceedings in the Tribunal occurred – where the Tribunal found against the appellant – where the criminal appeal was extant to the knowledge of the Adjudicator – whether the Adjudicator relied on the conviction in the Magistrates Court – whether, if the Adjudicator did rely on the conviction, that was an error of law – where no reasons given for a particular ground of appeal

Evidence Act 1977 (Qld), s 79
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 143(2)

Alexandria v Thiele [2018] QCATA 174
Fox v Percy (2003) 214 CLR 118
Pickering v McArthur [2005] QCA 294

REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

The respondent was driving his Volkswagen sedan south on the Gateway Motorway near the on-ramp from the Port of Brisbane Motorway in the second from the inside lane when he was struck by the applicant’s prime mover truck. The Gateway motorway was a 4 lane carriageway at that point. The applicant was towing a trailer and was changing lanes from the inside lane to the lane adjacent at the time.
The respondent’s vehicle was dragged along by the respondent’s truck for some distance and then forced to the left off the carriageway where it crashed, sustaining significant damage. The appellant did not stop and his vehicle did not sustain any significant damage.
The respondent claimed damages to his sedan from the appellant in the Tribunal. An award of $17,938.36 was made in his favour plus he was awarded his filing fee of $326.80.
The appellant seeks leave to appeal that decision.
Given this is an appeal from a decision made in the Tribunal’s Minor Civil Dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.[1]
[1]QCAT Act, s 142(3)(a)(i).
Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.[2] There may be other relevant considerations, but these are primary.
[2]Pickering v McArthur [2005] QCA 294, [3].
The appellant was charged by police with an offence of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Walden v Li

Details

AGLC: Walden v Li [2019] QCATA 126
Case: [2019] QCATA 126
Decision Date: 31 May 2019

CaseChat Overview and Summary

The case of Walden v Li involved the appellant, Walden, who had been convicted in the Magistrates Court of traffic offences arising from a motor vehicle collision with the respondent, Li. Walden appealed against his conviction in the Magistrates Court, but this appeal was pending when civil proceedings were heard by the Tribunal. The Tribunal found against Walden, and he subsequently sought leave to appeal this decision. The central legal issue was whether the Adjudicator in the Tribunal erred by relying on Walden's conviction in the Magistrates Court when making their decision, particularly since this conviction was being appealed. The court needed to determine if such reliance constituted an error of law and whether the appeal process influenced the Adjudicator's decision.

The court examined the reasoning of the Adjudicator and concluded that the Adjudicator did not solely rely on the conviction but rather based their decision on the evidence presented during the civil proceedings. The Adjudicator considered the police report, witness statements, and evidence from Mr Li. Although the conviction was mentioned, it was not the primary basis for the Adjudicator's decision. Furthermore, the court noted that Section 79 of the Evidence Act 1977 (Qld) does not preclude the use of a conviction in civil proceedings unless specific conditions are met, such as the conviction being stayed pending appeal, which was not the case here. The court also highlighted the differing standards of proof in criminal and civil proceedings, reinforcing that a finding of not guilty in the criminal appeal does not necessarily absolve liability in civil proceedings.

In light of the findings, the court held that the Adjudicator did not commit an error of law by considering the conviction. The reliance on the conviction did not unduly influence the outcome, as the decision was based on the evidence presented. Consequently, the appeal for leave to appeal was refused.

ORDERS:
Leave to appeal refused.

Orders

Orders of the court

Leave to appeal refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

By s 79 of the Evidence Act 1977 (Qld):79 Convictions as evidence in civil proceedings(1) In this section—civil proceeding does not include an action for defamation.convicted means a finding of guilt for an offence, on a plea of guilty or otherwise, and whether or not a conviction was recorded.(2) In any civil proceeding the fact that a person has been convicted by a court of an offence is admissible in evidence for the purpose of proving, where to do so is relevant to any issue in that proceeding, that the person committed that offence.(3) In any civil proceeding in which by virtue of this section a person is proved to have been convicted by a court of an offence the person shall, unless the contrary is proved, be taken to have committed the acts and to have possessed the state of mind (if any) which at law constitute that offence.(4) This section applies—(a) whether or not a person was convicted upon a plea of guilty; and(b) whether or not the person convicted is a party to the civil proceeding. The learned Adjudicator was entitled to rely upon the conviction in the Magistrates Court as evidence of the appellant’s culpability for the accident to the extent liability turned on the appellant’s negligent changing of lanes, which it did. The conviction concerned the same motor vehicle accident with which the civil action before the tribunal was concerned. That the appellant filed an appeal against his conviction and sentence did not detract from the entitlement of the learned Adjudicator to rely upon the conviction which was current as at date of hearing of the civil proceedings before the Tribunal. There is nothing in the wording of s 79 that suggests it changes the statutory evidential presumption available to the respondent consequent on the conviction. Neither when the matter was before the learned Adjudicator, nor now in this application for leave to appeal, is there any evidence that the conviction was stayed pending hearing of the appeal to the District Court. But, the contention on the part of the appellant would fail in any case because it is clear from perusal of the transcript that the learned Adjudicator did not rely solely or significantly on the conviction but rather gave both parties the opportunity to give evidence about the circumstances of the accident and he based his decision on the evidence before him. Though the learned Adjudicator made mention of the conviction in the Magistrates Court he was in fact persuaded that the appellant was responsible for the accident because of the material in the police report such as witness statements and Mr Li’s evidence.[3][3]Transcript (T) 1-5 Lines (L) 39-41. Even if the appellant had succeeded in overturning his conviction, there is a different onus of proof applicable in civil as opposed to criminal proceedings. In criminal proceedings the prosecution is required to prove its case beyond all reasonable doubt. In civil proceedings a lesser standard is sufficient, that of proof to the satisfaction of the Tribunal or court on the balance of probabilities. Accordingly, even if the appellant was found not guilty in the criminal appeal, this would not mean the appellant could not be liable in the civil proceedings.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Walden v Li [2019] QCATA 126
PARTIES:	ROBERT JOHN WALDEN (appellant)
v
BO LI (respondent)
APPLICATION NO/S:	APL250-18
ORIGINATING APPLICATION NO/S:	MCDO2220-17 Brisbane
MATTER TYPE:	Appeals
DELIVERED ON:	31 May 2019
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Member Howe
ORDERS:	Leave to appeal refused.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where the parties involved in a motor vehicle collision – where the appellant had been convicted in the Magistrates Court of traffic offences – where the appellant has filed an appeal against the Magistrates Court convictions which had not been heard when the civil proceedings in the Tribunal occurred – where the Tribunal found against the appellant – where the criminal appeal was extant to the knowledge of the Adjudicator – whether the Adjudicator relied on the conviction in the Magistrates Court – whether, if the Adjudicator did rely on the conviction, that was an error of law – where no reasons given for a particular ground of appeal Evidence Act 1977 (Qld), s 79 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 143(2) Alexandria v Thiele [2018] QCATA 174 Fox v Percy (2003) 214 CLR 118 Pickering v McArthur [2005] QCA 294
REPRESENTATION:
Applicant:	Self-represented
Respondent:	Self-represented
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).