Zhang v Marshall
[2013] QCATA 312
•12 November 2013
| CITATION: | Zhang v Marshall [2013] QCATA 312 |
| PARTIES: | Miss Qin Zhang (Applicant) |
| v | |
| Mr Peter Marshall (Respondent) |
| APPLICATION NUMBER: | APL368-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe OAM |
| DELIVERED ON: | 12 November 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549 Chambers v Jobling (1986) 7 NSWLR 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 |
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.
REASONS FOR DECISION
Mr Marshall agreed to build a fence for Ms Zhang for “just over” $700. Ms Zhang paid him $300 up front but did not pay any more. Mr Marshall filed a claim for the balance. An Adjudicator ordered that Ms Zhang pay Mr Marshall $350.
Ms Zhang has filed fresh material with her application for leave to appeal. The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined[1]. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Ms Zhang 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?[2]
[1]QCAT Act ss 137 and 138.
[2]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.
All of the evidence Ms Zhang now wants the appeal tribunal to consider should have been before the learned Adjudicator. Ms Zhang does not explain why she did not produce this evidence at the hearing. It should not be admitted.
Because this is an appeal from a decision of the tribunal in its minor civil disputes 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?[3] Is there a reasonable prospect that the applicant will obtain substantive relief?[4] Is leave necessary to correct a substantial injustice caused by some error?[5] Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?[6]
[3]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4]Cachia v Grech [2009] NSWCA 232 at 2.
[5]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[6]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.
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] However, the appeal tribunal must exercise its own discretion when considering whether the original decision maker was in error. As the High Court said in Fox v Percy:
In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.[9]
[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.
[9] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
It is clear that Ms Zhang is not satisfied with the learned Adjudicator’s decision. That, of itself, is no reason to grant leave to appeal. It is also clear that Ms Zhang does not understand the nature of an application for leave to appeal. It is not a rehearing. It is not an opportunity to have a second chance to present her case. Ms Zhang must show that the learned Adjudicator was in error. Ms Zhang has not pointed to any error and, even if it was the task of the appeal tribunal to find an error, I cannot find an error. The learned Adjudicator considered all of the issues Ms Zhang raises in the appeal. The learned Adjudicator’s findings are open on the evidence and there is no compelling reason to come to a different view.
Ms Zhang had the benefit of an interpreter at the hearing. There can be no suggestion that she did not understand the proceeding or the evidence before the learned Adjudicator.
There is no question of general importance that should be determined by the appeals tribunal. There is no reasonably arguable case that the learned Adjudicator 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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