Wind River Land & Cattle Company Pty Ltd v Nathan Wilson Training Stables
[2013] QCATA 154
•22 May 2013
| CITATION: | Wind River Land & Cattle Company Pty Ltd v Nathan Wilson Training Stables [2013] QCATA 154 |
| PARTIES: | Wind River Land & Cattle Company Pty Ltd (Appellant) |
| V | |
| Nathan Wilson Training Stables (Respondent) |
| APPLICATION NUMBER: | APL008 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Alexander Horneman-Wren SC, Deputy President |
| DELIVERED ON: | 22 May 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal is refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where application to transfer hearing refused – where respondent granted leave to appear by telephone – whether there was a failure to provide natural justice – whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act 2009, s 3(b), s 147(2) Greater Wollongong City Council v Cowan (1955) 93 CLR 435, cited McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, cited |
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 (“QCAT Act”).
REASONS FOR DECISION
Nathan Wilson trades under the name Nathan Wilson Training Stables. As the name suggests, he trains horses. In November 2009, Mr Wilson was training “Handy Impression”, a horse owned by Wind River Land & Cattle Company Pty Ltd. Mr King, a director of Wind River signed a document headed “INDEMNITY FORM AND RELEASE”. It is a term of that document that Wind River will indemnify Mr Wilson against all expenses while it has a horse at the stables.
Mr Wilson sent invoices to Wind River for training and agistment fees. Wind River did not pay them. Mr Wilson filed a claim in the Minor Civil Disputes jurisdiction of the Tribunal claiming the fees plus costs and interest. The claim was brought against both Wind River and Mr King. A Magistrate, sitting as an ordinary member of the Tribunal, found both Wind River and Mr King jointly and severally liable to pay Mr Wilson $18,766.10.
Wind River wants to appeal that decision. It says that it was not given natural justice because the hearing was held in Bundaberg and it wanted the hearing held in Caboolture. It says that, even though Mr King was allowed to appear at the hearing by phone, he could not follow the proceeding or the questions put to him. It says that the learned Magistrate did not consider an important email. It says that it telephoned the Tribunal registry “a number of times” about the inclusion of this email. Finally, it says that it is not indebted to Mr Wilson
Mr King has not sought leave to appeal the decision and order made against him.
Because this is an appeal from a decision of the Tribunal in its Minor Civil Dispute 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 Appeal 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.
Wind River did apply to transfer the hearing to Caboolture. In a letter dated 17 October 2012, Mr King told the Tribunal he could not attend the hearing because the date conflicted with other appointments. The Tribunal wrote to Wind River[5] asking it to provide evidence of Mr King’s other appointments. The Tribunal did not receive a response.
[5] 25 October 2012.
In a letter dated 17 October but clearly written after the Tribunal’s letter, Wind River applied to transfer the hearing because Mr King’s prolonged and serious ill health prevented him from travelling. The Tribunal received a report from Dr Aung[6], a general practitioner. Dr Aung told the Tribunal that Mr King had multiple serious medical conditions. Dr Aung also gave the opinion that Mr King was mentally unstable. Dr Aung said that Mr King was unfit to travel.
[6] 23 November 2012.
The learned Magistrate did not accede to Mr King’s request to have the hearing transferred to Caboolture. However, in an effort to comply with the Tribunal’s mandate to deal with matters in a way that is accessible, fair, just, economical, informal and quick,[7] the learned Magistrate allowed Mr King to appear by telephone. Even on Mr King’s case – that he could not travel – this order was appropriate.
[7] QCAT Act s3(b).
Mr King was forewarned that he would appear by telephone. He had a responsibility to ensure that he could hear the learned Magistrate. During the hearing, Mr King did say[8] that he didn’t hear everything the learned Magistrate said to Mr Wilson. The transcript also shows, though, that Mr King had no difficulty hearing the learned Magistrate when she was talking directly to him. It is not until the learned Magistrate started giving her reasons for decision[9] that Mr King, again, complained that he could not hear. The transcript shows that, during those direct discussions, Mr King did understand the nature of the case against him and he had a reasonable opportunity to put his case. I am not persuaded that holding the hearing in Bundaberg, and allowing Mr King to appear by telephone, lacked natural justice.
[8] Transcript page 5, line 14.
[9] Transcript page 11, line 24.
Mr King did refer the learned Magistrate to an email dated 5 November 2009.[10] The learned Magistrate asked Mr King why he hadn’t filed copies of the documents to which he referred.[11] Mr King told the learned Magistrate he had sent the documents. This seems at odds with the application for leave to appeal. The grounds of appeal suggest that the document had not been sent to the court, but that this was as a consequence of advice provided by the court itself.
[10] Transcript page 6, line 21.
[11] Transcript page 7, lines 16-33.
Wind River did file a response to the claim. It referred to its requests for information from Mr Wilson but there are no copies of any request. Wind River was aware that it had a right of reply. It had the opportunity to file material to support its case. It did not file this material. The learned Magistrate did not commit an error by proceeding in the absence of this document.
If leave to appeal was granted, the appeal would proceed by way of rehearing, with or without the hearing of additional evidence.[12] Generally, new evidence will only be admitted on an appeal when:
a) the evidence could not, by reasonable diligence, have been obtained at the trial;
b) had the new evidence been adduced at the trial an opposite result was likely; and
c) the new evidence is credible.[13]
[12] Section 147(2) of the QCAT Act.
[13] Greater Wollongong City Council v Cowan (1955) 93 CLR 435.
Wind River has attached the email of 5 November 2009 to its submissions on this application. Certainly it does not satisfy the first consideration identified above. It was able to be obtained at the time of the hearing before the learned Magistrate.
Most importantly, however, if admitted either at the hearing before the Magistrate or on the appeal, it is not likely that the opposite result would be realised. The part of the email upon which Wind River seeks to rely is that:
In the event that you feel this filly is not up to the job, return her, and I will endeavour to replace her with another.
At the hearing before the learned Magistrate Mr King referred to this document as being proof that he wrote to Mr Wilson asking for the return of the horse. Clearly it was not.
Wind River did not take issue with the rate at which it was charged for training fees. Rather, it took issue with the period over which those fees were charged and with an alleged failure by Mr Wilson to itemise amounts paid for entry of the horse in various events, and for which he sought to be indemnified under the agreement between the parties.
There is no question of general importance that should be determined by the Appeals Tribunal. There is no reasonably arguable case that the learned Magistrate 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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