Yule v Chief Executive, Office of Fair Trading

Leslie Edward Yule and Jan Marie Yule appealed against a decision of the Queensland Civil and Administrative Tribunal (QCAT) that rejected their claim against the claim fund for loss suffered as a result of an error in a sales brochure obtained from a real estate agent. The applicants sought leave to admit a 2012 QCAT decision as fresh evidence, in which the same real estate agent was found to have breached predecessor legislation. The applicants argued that this prior decision demonstrated the agent’s untruthfulness in the present proceeding. The applicants also sought leave to appeal the QCAT’s decision on the basis that the Tribunal had erred in its findings.

The court had to determine whether the 2012 QCAT decision could be admitted as fresh evidence and whether leave to appeal should be granted. The court considered the usual principles for admitting fresh evidence, which require that the evidence could not have been available with reasonable diligence for the original hearing, would probably have an important impact upon the result, and is credible. The court found that the 2012 decision was a matter of public record and readily available, and that its consideration would not have had a major impact on the result of the case. The court also found that there was no error in the QCAT’s decision, as the Tribunal was not satisfied that any loss suffered by the applicants was due to the error in the brochure.

The application to admit fresh evidence and the application for leave to appeal were refused. The appeal was dismissed. The court held that the applicants’ submissions about the Chief Executive’s response to the earlier matter were irrelevant to the issue of whether the applicants suffered loss because of the misleading brochure. The court also held that the tribunal on a referral from the Chief Executive, determined the outcome in the earlier case.