Belomark Pty Ltd v Robinson [2020] QCATA 110

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Belomark Pty Ltd v Robinson [2020] QCATA 110 PARTIES: BELOMARK PTY LTD T/AS AUTOBARN COOMERA UPPER COOMERA (applicant/appellant) v DION ROBINSON (respondent) APPLICATION NO/S: APL141-19 ORIGINATING APPLICATION NO/S: MCDO Beenleigh Q25-19 MATTER TYPE: Appeals DELIVERED ON: 16 June 2020 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Howe ORDERS: Application for leave to adduce fresh evidence refused. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where the applicant seeks leave to adduce fresh evidence – where the evidence was available at hearing – where no explanation why evidence was not made available at the hearing – where the claimed fresh evidence would not have produced a different result at hearing PS Business Holdings Pty Ltd v Duncan & Anor [2010] QCATA 19 REPRESENTATION: Applicant: Self-represented Respondent: Self-represented APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION [1] Mr Robinson owned a Subaru motor vehicle. The respondent (‘Autobarn Coomera’) owns an auto shop at Coomera. Mr Robinson wanted to add some features to his vehicle and engaged Autobarn Coomera to install them. -- 1 of 3 -- 2 [2] Amongst the features was a reversing camera. [3] The reversing camera installed did not work properly. Mr Robinson returned the vehicle to Autobarn Coomera. He was told the problem was a reverse switch sensor in the gearbox. [4] Autobarn Coomera replaced the switch but the reversing camera still didn’t work. He was told to bring the vehicle back and they would do more work on it. He drove out from the shop but a warning light came on. The car was leaking oil from the gearbox. [5] He returned the car to Autobarn Coomera and after inspecting it they told him there was a hole in the gearbox housing. It was next to the reverse switch sensor. Autobarn Coomera denied causing the damage. [6] Mr Robinson commenced minor civil dispute – consumer dispute proceedings in the tribunal claiming the cost of repairing the hole and inspecting for internal damage. The matter was heard by an Adjudicator who found in favour of Mr Robinson after concluding Autobarn Coomera was responsible for the hole in the gearbox. [7] Autobarn Coomera has applied for leave to appeal that decision. [8] Autobarn Coomera seeks leave to adduce fresh evidence in the application for leave to appeal. Fresh evidence [9] New evidence will ordinarily only be allowed at an appeal when it could not, by reasonable diligence, have been obtained for the original hearing, is credible, and might have produced an opposite result.1 [10] The fresh evidence sought to be led in the appeal proceedings consists of a report by the owner of a mechanical workshop trading as ICE Motorsports, a statement of evidence by the mechanic employed by Autobarn Coomera who replaced the reverse switch in Mr Robinson’s gearbox and two photographs of damaged metal fragments from the gearbox. [11] The ICE Motorsports report is not new. It was handed up by the representative for Autobarn Coomera at the hearing and made available for the learned Adjudicator’s consideration. The only difference is that the date has been removed from the second copy. [12] Similarly with the photographs now sought to be led as fresh evidence, the photographs were also available to the learned Adjudicator at the hearing. [13] The statement of evidence by the mechanic employed by Autobarn Coomera also offers nothing new. The assertions he makes there were made by the Autobarn Coomera representative to the learned Adjudicator at hearing. Furthermore, the mechanic’s evidence largely consists, where relevant, of repeating the assertion made by ICE Motorsports that the problem was likely to have been an internal failure of the gearbox. [14] There is nothing to suggest that the statement of evidence by the mechanic, if tendered at hearing, would have resulted in a different conclusion by the learned Adjudicator 1 PS Business Holdings Pty Ltd v Duncan & Anor [2010] QCATA 19, [16], citing Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435. -- 2 of 3 -- 3 as to the cause of the damage. There is no explanation why the statement of evidence was not drawn and made available for the hearing. [15] Mr Robinson clearly and in some detail described the circumstances and evidence relied upon by him in support of his claim in his initiating application. In particular he supplied from outset the expert witness report by Mr Collins from Scorpion Subaru stating that his workshop had removed the transmission from the vehicle and found no damage done inside the gearbox, and therefore in his opinion it had been incorrect tools used by Autobarn Coomera to replace the reverse light switch which was immediately adjacent to the hole that had caused the damage. [16] Autobarn Coomera therefore knew the case it had to meet, the issues and the evidence relied on by Mr Robinson, but failed to address those issues and evidence or make their case appropriately. [17] Neither the mechanic from Autobarn Coomera nor anybody from ICE Motorsports actually examined the gearbox after Mr Robinson complained about the oil leak. Mr Collins did however and the Adjudicator accorded weight to his inspection and findings. [18] The application to adduce fresh evidence on appeal is refused. -- 3 of 3 --