Zebdarth Pty Ltd t/a Alan Willi Family Trust v Schonfeld Consulting

[2016] QCATA 104

CITATION: Zebdarth Pty Ltd t/a Alan Willi Family Trust v Schonfeld Consulting [2016] QCATA 104

PARTIES:	Zebdarth Pty Ltd t/a Alan Willi Family Trust (Applicant/Appellant)
V
Schonfeld Consulting (Respondent)

APPLICATION NUMBER: APL526-15

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Carmody

DELIVERED ON: 30 June 2016

DELIVERED AT: Brisbane

ORDERS MADE: 1.    McFillin & Partners’ letter dated 1 March 2016 and all attachments be allowed as evidence in APL526-15.

CATCHWORDS:

MINOR CIVIL DISPUTE – interlocutory application to adduce new evidence – test for adducing new evidence

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 32, 142(3)(a), 147.

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

Walton v New Lakelands Pty Ltd [2013] QCAT 49

APPEARANCES:

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. The issue in this interlocutory application is a procedural one about whether evidence not adduced in the original hearing should be received on appeal.

2. As the appeal is from a tribunal exercising minor civil dispute jurisdiction, it is proceeding by way of application for leave under s 142(3)(a) QCAT Act. If leave is given, it will be decided under s 147 QCAT Act, because it involves questions of fact.

3. There is power to take new evidence in deciding an appeal by way of rehearing in the interests of justice.

4. The dispute relates to the preparation of the 2014 tax returns and financial statements. The decision appealed from is an order against the applicants to pay tax agent fees of $3,009. The applicants deny liability because the work was (a) unauthorised and (b) professionally substandard.

5. The hearing was conducted on 4 December 2015. The new evidence is a letter (dated 1 March 2016) with attachments from a firm of chartered accountants, which tends to support the applicant’s incompetence head of claim.

6. The test for receiving additional evidence on appeal as a matter of discretion requires the applicant to address three key factors, which contemplate whether the evidence:[1]

   1.could not have been obtained with reasonable diligence for use at the trial;

   2.if allowed, would probably have an important impact on the result of the case (although it need not be demonstrated that it would be decisive); and

   3.is credible (though it need not be incontrovertible).

   [1]Walton v New Lakelands Pty Ltd [2013] QCAT 49; Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, 408.

7. The subject matter of appeal and usefulness of the new evidence in deciding it also bear hearing on the scope of the discretion.

8. The new evidence meets the criteria in the above paragraphs, and will be admitted at any rehearing by the appeal tribunal to ensure justice is done, despite the unexplained delay between the decision and the date of the new evidence. However, as it is documentary hearsay and is not self-explanatory, the new evidence will not mean much to the appeal tribunal or carry any real weight unless the author is orally examined, at least, via telephone link, at the hearing proceedings.