Young v Powrie

[2014] QCATA 347

CITATION: Young v Powrie [2014] QCATA 347

PARTIES:	Christopher Raymond Young (Applicant/Appellant)
V
Kelly Powrie (Respondent)

APPLICATION NUMBER: APL331 -14

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Acting Deputy President Stilgoe OAM

DELIVERED ON: 17 December 2014

DELIVERED AT: Brisbane

ORDERS MADE: 1.    Leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – where oral agreement to repair vessel – where agreement terminated – where claim for invoiced costs – where claim for rectification - whether grounds for leave to appeal

Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Pickering v McArthur [2005] QCA 294
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404
Chambers v Jobling (1986) 7 NSWLR 1

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 (Qld) (QCAT Act).

REASONS FOR DECISION

1. Ms Powrie owns a 28 foot timber sloop Calore. In 2013, she entered into a verbal agreement with Mr Young by which he would replace Calore’s decking. The work took longer than Ms Powrie expected and Mr Young charged her more than she though they had agreed. The parties fell out. Ms Powrie did not pay Mr Young all he invoiced.  She also felt that his work was defective.

2. Mr Young filed an application for minor debt, claiming $5,412.76. Ms Powrie filed a response claiming damages for defective work, excessive labour costs and work done that was not requested.

3. A Magistrate, sitting as a member of the tribunal in its minor civil disputes jurisdiction, heard the dispute ‘on the papers’. He found that Mr Young was entitled to payment. However, he deducted $2,805.74 for rectification work. He ordered Ms Powrie pay Mr Young $2,607.02.

4. Mr Young wants to appeal that decision. He says the learned Magistrate did not give sufficient weight to the photographic evidence Mr Young filed. He says that the question of rectification is ‘purely hypothetical’.

5. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]

   [1]QCAT Act s 142(3)(a)(i).

   [2]Pickering v McArthur [2005] QCA 294 at [3].

1. Mr Young has filed fresh evidence with his submissions to the appeals tribunal. The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Mr Young 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?[3]

   [3]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.

1. Mr Young filed photos of Calore with detailed explanations of the work he did on her. The learned Magistrate had copies of those photos without the detailed explanation. On 28 May 2014, the learned Magistrate discussed the state of the evidence with the parties. He told the parties there was a risk he would not understand their submissions[4]. He asked Mr Young if he had filed enough material[5] and Mr Young replied ‘I’ve got nothing else I could add to it’.[6]

   [4]Transcript page 1-2, lines 19 – 20.

   [5]Transcript page 1-2, line 29.

   [6]Transcript page 1-2, lines 31 – 32.

2. An application for leave to appeal is not, and should not be, an attempt to shore up the deficiencies of a party’s case at the initial hearing. Mr Young had an opportunity to provide a detailed explanation of the photos and he chose not to take that opportunity. He should not now be allowed to produce that evidence.

1. Mr Young has also filed a letter from Mr Maisey of Port Douglas Shipwrights dated 25 July 2014. It seems he asked for this letter after the discussion on 28 May 2014 but before the learned Magistrate gave his decision. The letter does not appear on the original file and Mr Young has not explained why he did not try to put it before the learned Magistrate. The evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Magistrate.

1. The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[7]  An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[8] 

   [7]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.

   [8]Chambers v Jobling (1986) 7 NSWLR 1 at 10.

1. The learned Magistrate’s reasons for decision show he considered the evidence carefully. He relied on Mr Maisey’s evidence to find that Mr Young’s work required rectification. He relied on Mr Maisey’s estimate of the cost of that work. The evidence can support the learned Magistrate’s finding and I can find no compelling reason to take a different view.

1. There is no reasonably arguable case that the learned Magistrate was in error. Leave to appeal should be refused.