Felsman v Jones [2018] QCATA 63

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Felsman v Jones [2018] QCATA 63 PARTIES: COLIN FELSMAN (appellant) v SAMUEL JONES (respondent) APPLICATION NO/S: APL383-17 ORIGINATING APPLICATION NO/S: MCDO131/17 (Maroochydore) MATTER TYPE: Appeals DELIVERED ON: 18 May 2018 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Howe ORDERS: Leave to appeal refused. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where motor vehicle accident causing damage to property – where no grounds of appeal in application for leave to appeal and appeal – where appeal seeks to litigate matter decided in Tribunal below a second time Queensland Civil and Administrative Act 2009 (Qld), s 142(3)(a)(i) Pickering v McArthur [2005] QCA 294 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). -- 1 of 3 -- 2 REASONS FOR DECISION [1] This matter concerns a motor vehicle accident involving the parties which occurred on 7 February 2017 at Coronation Avenue, Nambour. [2] Mr Jones, the respondent to the appeal, was travelling in the right hand lane of Coronation Avenue as it increased to three lanes approaching a right turn into Bli Bli Road. At the intersection the two right hand lanes turn right at traffic lights into Bli Bli Road and the left lane continues straight through the intersection. Mr Jones stayed in his lane, which became the middle lane. [3] Mr Felsman, the appellant, was travelling in the left lane in Coronation Avenue. Mr Felsman also wanted to turn right into Bli Bli Road. To do that he had to change lanes. [4] Mr Felsman changed from the left lane into the middle lane. In doing so he collided with Mr Jones’ vehicle which was travelling in the middle lane. [5] Mr Felsman says he looked to make sure the lane next to him was clear of traffic before changing lanes. He did not see Mr Jones’ vehicle. He said he indicated before crossing into the middle lane. [6] Mr Jones says the right rear of Mr Felsman’s vehicle collided with the front left of his vehicle, causing damage. Mr Jones said Mr Felsman did not indicate to change lanes and gave no warning that he was crossing into his lane in front of Mr Jones’ vehicle. Mr Jones says the traffic was slow, travelling at about 40 km/h at the time travelling towards the traffic lights where the traffic was stopped. [7] At hearing the Tribunal found for Mr Jones. The Tribunal gave its decision to the parties ex tempore, at the conclusion of evidence. The Tribunal said it was satisfied ‘that the accident happened as the applicant had described. The evidence appears to be overwhelming and therefore we’re going to find for the applicant….’ [8] After that was said, Mr Felsman further raised with the Tribunal the matter, not addressed before then, about his vehicle being in front when he changed lanes which meant Mr Jones’ vehicle was behind. On the basis that person travelling behind should be held accountable, he contended he should not be held liable. [9] The Tribunal responded to this challenge saying that they accepted the evidence of the witness called for Mr Jones who said she saw the accident from her position travelling in another motor vehicle. [10] That witness had given evidence that she was travelling in the right lane of Coronation Avenue towards the traffic lights when she heard a horn and looked over. She saw a gold Mercedes merging into the right hand lane (sic.) without any indication from the left hand lane, collide with Mr Jones’ vehicle and then drive on. [11] Mr Felsman was invited by the Tribunal on two occasions after the witness gave her evidence to ask questions of the witness. Instead he made what was effectively simply a statement to the Tribunal that his car was a silver Mercedes not gold, and he was not sure which car the witness therefore saw. He did not challenge her evidence directly nor put to her for her comment what his contentions were. [12] Mr Felsman has appealed the decision of the Tribunal. -- 2 of 3 -- 3 [13] Given this is an appeal from a decision made in the Tribunal’s Minor Civil Dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.1 [14] Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.2 [15] Unfortunately Mr Felsman fails to say in his appeal what injustice arose in result of the decision he appeals against nor, importantly, what error was made in the decision below. An appeal is not an opportunity for a second attempt at a hearing to try the matters adjudicated upon again, hopefully this time round with a different result. [16] Mr Felsman simply restates his argument about his position on the roadway, changing lanes and indicating before doing so when it was safe to do so. He finishes with allegations that Mr Jones was driving too fast and failed to take evasive action and if he did not cause the accident he contributed to it. [17] This is simply a reiteration of his argument below. [18] Where decisions are based on credibility, it is difficult to have a decision overturned on appeal. The Tribunal heard from the parties and the witness, but the Appeal Tribunal does not do so. The Tribunal below was in a far better position than an Appeal Tribunal to assess the credibility of the parties and the witness, and credibility was what this matter turned on. [19] On the accepted evidence the Tribunal was entitled to conclude that the accident was the fault of Mr Felsman. [20] No error in the decision below has been shown. Leave to appeal must be refused. 1 Queensland Civil and Administrative Act 2009 (Qld), s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294, [3]. -- 3 of 3 --