Armanasco v Consign-A-Car [2019] QCATA 141

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Armanasco v Consign-A-Car [2019] QCATA 141 PARTIES: JACQUELINE PEARL ARMANASCO (appellant) v CONSIGN-A-CAR (respondent) APPLICATION NO/S: APL093-19 ORIGINATING APPLICATION NO/S: MCDO1057/18 (Brisbane) MATTER TYPE: Appeals DELIVERED ON: 25 September 2019 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Hughes ORDERS: Leave to appeal refused. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – CONTROL OVER PROCEEDINGS – OTHER CASES – where no grounds of appeal – where appeal is not an attempt to reargue case – where findings of fact not inconsistent with documentary evidence – where Tribunal at first instance in best position to assess credibility – where Tribunal must observe procedural fairness – where Tribunal’s mandate to deal with matters quickly is most acute in minor civil disputes– where appellant received legal advice and was accompanied by support person who at times also spoke on her behalf – where appellant afforded procedural fairness in context of Tribunal’s minor civil disputes jurisdiction – where findings open on evidence Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 4, s 28, s 143 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39 Briginshaw v Briginshaw (1938) 60 CLR 336 Cachia v Grech [2009] NSWCA 232 Chambers v Jobling (1986) 7 NSWLR 1 Creek v Raine & Horne Mossman [2011] QCATA 226 -- 1 of 4 -- 2 Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 Kioa v West (1985) 159 CLR 550 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611 Piric & Anor v Claudia Tillier Holdings Pty Ltd [2012] QCATA 152 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Slater v Wilkes [2012] QCATA 12 Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe [2013] QCATA 212 REPRESENTATION: Applicant: Self-represented Respondents: 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 What is this appeal about? [1] Jacqueline Armanasco agreed to sell her vehicle on consignment through Consign-A- Car. Two Justices of the Peace dismissed her application for money she believes she was owed from the sale.1 [2] Ms Armanasco wants to appeal that decision. [3] Because this is an appeal from a minor civil dispute, leave is required.2 [4] In determining whether to grant leave, the Tribunal will consider established principles including: (a) whether there is a reasonably arguable case of error in the primary decision;3 (b) whether there is a reasonable prospect that the appellant will obtain substantive relief;4 (c) whether leave is needed to correct a substantial injustice caused by some error;5 and 1 Order dated 22 March 2019. 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 143(3). 3 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 4 Cachia v Grech [2009] NSWCA 232, 2. 5 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. -- 2 of 4 -- 3 (d) whether there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.6 Should the Appeal Tribunal grant leave to appeal? [5] Ms Armanasco’s application for leave to appeal or appeal7 and submissions8 did not provide any grounds of appeal, but instead sought to reargue the case she put to the learned Justices at the original hearing. [6] Unfortunately for Ms Armanasco, an application for leave to appeal is not, and should not be an attempt to reargue a party’s case at the initial hearing.9 The learned Justices made findings of fact about the terms of consignment and the circumstances surrounding the consignment.10 [7] The Appeal Tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.11 An Appellate Tribunal may only interfere if the conclusion is ‘contrary to compelling inferences’ in the case.12 A decision cannot properly be called erroneous, simply because the learned Justices preferred one conclusion to another possible conclusion.13 [8] The findings of the learned Justices are not inconsistent with the documentary evidence, including the Consignment Appointment,14 Consignment Agreement15 and financial records relating to the transaction.16 [9] Ms Armanasco raised various allegations of fraud and falsely preparing or signing documents. Allegations of fraud are serious and the threshold of proof is commensurately high.17 The learned Justices did not accept these allegations. Having heard the evidence of both Ms Armanasco and representatives from Consign-A-Car, the learned Justices were in the best position to assess credibility. It is not an error to prefer one version of facts to another.18 [10] The Tribunal must also observe procedural fairness.19 However, this is a flexible notion that must be commensurate with the nature and demands of the jurisdiction – it is a matter of construction of a particular statutory power.20 The requirements of 6 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 577, 580. 7 Application for leave to appeal or appeal dated 11 April 2019. 8 Submissions filed 29 May 2019. 9 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39. 10 Transcript page 1-64, lines 27 to 46, page 1-65, lines 1 to 17. 11 Dearman v Dearman (1908) 7 CLR 549, 561; Fox v Percy (2003) 214 CLR 118, 125-126. 12 Chambers v Jobling (1986) 7 NSWLR 1, 10. 13 Slater v Wilkes [2012] QCATA 12, [6], citing Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611. 14 Appointment of motor dealer or chattel auctioneer dated 30 August 2017. 15 Consign-A-Car Services Agreement dated 30 August 2017. 16 Final Account of Sale dated 23 September 2017; Contract of Sale dated 23 September 2017; Trust Account Receipt 4962 dated 23 September 2017; Bank Details signed 28 September 2017. 17 Briginshaw v Briginshaw (1938) 60 CLR 336. 18 Slater v Wilkes [2012] QCATA 12, [6]. 19 QCAT Act, s 28(3)(a). 20 Kioa v West (1985) 159 CLR 550, 584-585. -- 3 of 4 -- 4 procedural fairness must be adjusted to the statutory framework governing the Tribunal.21 [11] The Tribunal’s statutory mandate to conduct proceedings in an informal way that minimises costs to parties and is as quick as is consistent with achieving justice,22 is at its most acute in the busy and demanding minor civil disputes jurisdiction, where thousands of applications are processed and determined each year.23 Within this context, the Tribunal is not bound by the rules of evidence,24 and may inform itself in any way it considers appropriate.25 [12] Although Ms Armanasco was unrepresented, she received legal advice from no fewer than three solicitors26 and had the benefit of a support person with her during the hearing who (at times) spoke on her behalf.27 The learned Justices also asked questions of all parties throughout the hearing, carefully examining, re-examining and summarising their evidence. [13] Nothing in the material or the transcript persuades the Appeal Tribunal that the learned Justices’ findings were not open to them. The learned Justices made their findings upon considering both documentary evidence and sworn oral evidence provided by both parties and after a hearing of almost two hours - a considerable period in the minor civil disputes jurisdiction, where multiple applications are heard each day. [14] The learned Justices’ findings about the consignment and the conduct of the parties were open on the evidence. Having read the transcript and considered the evidence, the Appeal Tribunal finds nothing to indicate that the learned Justices acted on a wrong principle, or made mistakes of fact affecting their decision, or were influenced by irrelevant matters. The evidence was capable of supporting their conclusions. [15] Leave will not be granted where a party simply desires to re-argue the case on existing or additional evidence.28 A clear purpose of the requirement for leave, before a party has the right to appeal, is to prevent any attempt to simply conduct a retrial on the merits of the case.29 [16] There is no question of general importance for the Appeal Tribunal to determine. There is no reasonably arguable case that the Tribunal 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. 21 Creek v Raine & Horne Mossman [2011] QCATA 226, [15] (Wilson J). 22 QCAT Act, s 4(c). 23 Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe [2013] QCATA 212, [46] (Wilson J). 24 QCAT Act, s 28(3)(b). 25 Ibid s 28(3)(c). 26 Applicant submissions dated 29 May 2019. 27 Transcript page 1-37, lines 24, 30, 38; page 1-38, line 26; page 1-39, line 27; page 1-41, lines 31, 39, 43 to 44; page 1-42, lines 3 to 6, 10 to 12, 23; page 1-45, line 24; page 1-47, line 24; page 1-48, lines 10, 16, 33; page 1-52, lines 14 to 15, 26, 33 to 34. 28 Piric & Anor v Claudia Tillier Holdings Pty Ltd [2012] QCATA 152, [12] (Wilson J). 29 Ibid. -- 4 of 4 --