Callil v Kosonen [2018] QCATA 62

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Callil v Kosonen [2018] QCATA 62 PARTIES: Peter Callil (Appellant) v Samuel Kosonen (Respondent) APPLICATION NUMBER: APL312-17 MATTER TYPE: Appeals HEARING DATE: 24 April 2018 HEARD AT: Brisbane DECISION OF: Member Hughes DELIVERED ON: 4 May 2018 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal refused. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – CONTROL OVER PROCEEDINGS – where allegations of bias and denial of natural justice – where Tribunal has mandate to deal with matters quickly – where appellant was given opportunity to present case – where appellant relied on written statement of independent witness – where appellant did not seek or arrange to have his independent witness attend hearing to give evidence in person or by telephone – where not hearing evidence by telephone was not denial of natural justice – where appellant had obligation to act in own best interests and call relevant witnesses APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – interference with adjudicator’s findings of fact – where appellant disputed finding of fact on causation – where -- 1 of 8 -- 2 motor vehicle collision in car park – where evidence capable of supporting findings – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 4, s 28, s 43, s 143 Transport Operations (Road Use Management) Regulation – Road Rules) Regulation 2009 (Qld), r 296, 297, r 299 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39 Cachia v Grech [2009] NSWCA 232 Chambers v Jobling (1986) 7 NSWLR 1 Creek v Raine & Horne Mossman [2011] QCATA 226 Dearman v Dearman (1908) 7 CLR 549 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Fox v Percy (2003) 214 CLR 118 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 Kilpatrick v Tighnabruaich Properties Pty Ltd [2011] QCATA 208 Kioa v West (1985) 159 CLR 550 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Piric & Anor v Claudia Tillier Holdings Pty Ltd [2012] QCATA 152 QUYPD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Selvanayagam v University of the West Indies [1983] 1 All ER 824 Slater v Wilkes [2012] QCATA 12 APPEARANCES: APPELLANT: Mr Peter Callil appeared in person RESPONDENT: Mr Samuel Kosonen appeared in person REASONS FOR DECISION What is this appeal about? [1] Peter Callil and Samuel Kosonen had a car accident in a car park. Mr Callil was reversing his Hiace Van from its parking space onto the carriageway. Mr Kosonen was driving his Ford Ranger along the carriageway. Their vehicles collided. -- 2 of 8 -- 3 [2] An Adjudicator apportioned 90 percent responsibility for the accident to Mr Callil and 10 percent responsibility to Mr Kosonen. The learned Adjudicator ordered that Mr Callil pay Mr Kosonen $1,720.80. [3] Mr Callil wants to appeal that decision. He wants the Tribunal to apportion 10 percent apportion responsibility for the accident to him and 90 percent responsibility to Mr Kosonen. [4] Because this is an appeal from a minor civil dispute, leave is required.1 [5] 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;2 b) whether there is a reasonable prospect that the appellant will obtain substantive relief;3 c) whether leave is needed to correct a substantial injustice caused by some error;4 and 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.5 [6] An application for leave to appeal is not, and should not be an attempt to reargue a party’s case at the initial hearing.6 Is it a ground of appeal for a lawyer to prepare Mr Kosonen’s case? [7] In his grounds of appeal, Mr Callil submitted:7 A few days prior to the hearing, the defendant, Mr Samuel Kosonen lodged a counter claim in the court. Mr Kosonen also offered a submission that seemed to be written by a lawyer, rather than by himself. This action is contrary to the rules in principle, set by QCAT, specifically, that not legal representation is permitted. [8] Section 43 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides that the main purpose in Tribunal proceedings is for the parties to represent themselves unless the interests of justice require otherwise. However, this does not prevent a party from having a lawyer prepare their case: 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 143(3). 2 QUYPD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 3 Cachia v Grech [2009] NSWCA 232, 2. 4 QUYPD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 5 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. 6 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39. 7 Application for leave to appeal or appeal, Attachment ‘A’, p 1. -- 3 of 8 -- 4 Although s 43 has, as its purpose, that parties represent themselves unless the interests of justice otherwise require it, nothing in the Act prevents a party from having a lawyer assist in the preparation of material.8 [9] This is not a ground of appeal. Was Mr Callil afforded natural justice? [10] Mr Callil submitted that the learned Adjudicator did not afford him natural justice because he did not query Mr Kosonen ‘stridently’ and did not telephone Mr Callil’s independent witness. Mr Callil submitted that this meant that the learned Adjudicator’s decision was tainted by bias. [11] The Tribunal must observe the rules of natural justice.9 However, natural justice 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.10 The requirements of procedural fairness must be adjusted to the statutory framework governing the Tribunal.11 [12] 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,12 is at its most acute in the busy and demanding minor civil disputes jurisdiction, where thousands of applications are processed and determined each year.13 Within this context, the Tribunal is not bound by the rules of evidence,14 and may inform itself in any way it considers appropriate.15 [13] I have carefully read the transcript. The learned Adjudicator asked relevant questions of both parties and gave them an opportunity to respond, referring to supporting material where appropriate. By doing so, he focused the hearing on the issues to be determined and used time and resources efficiently, consistent with the Tribunal’s mandate. Extending the requirements of natural justice beyond this is inconsistent with the QCAT Act and would make the minor civil disputes jurisdiction cumbersome. [14] The Adjudicator was not required to telephone Mr Callil’s independent witness and not doing so is not a denial of natural justice. This is because the onus is always upon Mr Callil to present his case and call relevant witnesses. Mr Callil did not seek or arrange for his independent witness to 8 Kilpatrick v Tighnabruaich Properties Pty Ltd [2011] QCATA 208, [19]. 9 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(a). 10 Kioa v West (1985) 159 CLR 550, 584-585. 11 Creek v Raine & Horne Mossman [2011] QCATA 226, [15] (Wilson J). 12 QCAT Act, s 4(c). 13 Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe [2013] QCATA 212, [46] (Wilson J). 14 QCAT Act, s 28(3)(b). 15 Ibid, s 28(3)(c). -- 4 of 8 -- 5 attend the hearing to give evidence in person or by telephone. Mr Callil had an obligation to act in his own best interests:16 The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, ‘… the public as a whole, not merely the parties to the proceedings’. Finality in litigation is highly desirable, because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties. [15] Mr Callil tendered a written statement from his independent witness. The learned Adjudicator considered that statement, weighed it appropriately and expressly referred to in his reasons. [16] Bias is a serious allegation. The threshold to prove bias is high:17 … if a fair-minded lay bystander might reasonably apprehend that the decision- maker might not bring an impartial mind to the determination of the issues that he or she must decide. [17] Allegations of bias require more than mere speculation. Both parties filed material to support their case and were given an opportunity to present their case, consistent with the objects of the QCAT Act and within the demands of the jurisdiction. The learned Adjudicator conducted the hearing appropriately. [18] The learned Adjudicator afforded Mr Callil natural justice. The allegation of bias is speculative and without basis. [19] This ground of appeal is dismissed. Was the evidence capable of supporting the Tribunal’s findings? [20] Mr Callil disputed the learned Adjudicator’s findings of fact and the conclusions he drew from those findings. He submitted that the learned Adjudicator did not give proper weight to the statement of the independent witness. He submitted that Mr Kosonen had the greater duty of care to avoid being distracted. [21] The Appeal Tribunal will not usually disturb findings of fact on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.18 An appellate tribunal may only interfere if the conclusion is ‘contrary to compelling inferences’ in the case.19 16 Creek v Raine & Horne Mossman [2011] QCATA 226, [13], citing with approval Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 217. 17 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344-5 [6]. 18 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118. 19 Chambers v Jobling (1986) 7 NSWLR 1, 10. -- 5 of 8 -- 6 [22] The transcript reveals that the learned Adjudicator read the statement of Mr Callil’s independent witness. He noted its consistency with Mr Callil’s evidence that Mr Kosonen’s vehicle was moving slowly. However, he found it difficult to reconcile the witness statement with Mr Kosonen’s direct testimony about the alleged use of his mobile phone. [23] In particular, the learned Adjudicator noted a discrepancy between the witness statement and a prior inconsistent statement made by Mr Callil to Mr Kosonen’s insurer. Upon careful scrutiny, he found other inconsistencies in the witness statement. Because of these issues with the witness statement, the learned Adjudicator preferred Mr Kosonen’s direct evidence that he was using his mobile phone hands-free and found that it made little impact on his reaction time. [24] The Appeal Tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.20 As the learned Adjudicator correctly noted, Mr Callil’s independent witness did not attend the hearing to give evidence in person.21 The learned Adjudicator was entitled to reduce the weight to be attached to the independent witness statement or not accept in its entirety. [25] I have read the transcript of the hearing and the learned Adjudicator’s reasons for his decision. The learned Adjudicator carefully considered the cause of the collision. He questioned both parties about what happened. He examined photographs of the damage and repair quotes. [26] Having heard the evidence of both parties and questioned them throughout the hearing, the learned Adjudicator was in the best position to assess credibility. The learned Adjudicator referred to the evidence to support his ultimate findings and which he was entitled to weigh accordingly.22 It is not an error to prefer one version of facts to another.23 [27] Mr Callil submitted that Mr Kosonen did not comply with Regulation 297 of the Transport Regulations,24 requiring a driver to not drive unless they have a clear view of the road and traffic ahead, behind and to each side. He submitted that Mr Kosonen did not pay due care and attention. He also submitted that Mr Kosonen did not comply with Regulation 299 of the Transport Regulations,25 prohibiting a driver from driving a vehicle that has a visual display unit with an image visible to or likely to distract the driver while the vehicle is moving. [28] However, having made a finding of fact that Mr Kosonen’s use of his mobile phone was hands-free, it was open to the learned Adjudicator to apportion responsibility for the incident as he did. Mr Callil admitted that 20 Dearman v Dearman (1908) 7 CLR 549, 561; Fox v Percy (2003) 214 CLR 118,125-126. 21 Transcript 1-22, Lines 16 to 17. 22 Selvanayagam v University of the West Indies [1983] 1 All ER 824, 826. 23 Slater v Wilkes [2012] QCATA 12, [6]. 24 Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld). 25 Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld). -- 6 of 8 -- 7 he was ‘reversing with limited vision’.26 His vehicle had no side windows and he relied on his side mirrors, rear-view mirror and reversing camera. Despite this, Mr Callil admitted to not applying his brakes. [29] Regulation 296 of the Transport Regulations requires that a driver must not reverse their vehicle unless they can do so safely. Because of his limited vision, Mr Callil had to exercise particular care to comply with Rule 296. He was required to give way as he reversed onto the main thoroughfare. He did not. [30] The evidence shows that it was open to the learned Adjudicator to find that the main cause of the accident was Mr Callil’s vehicle reversing from a stationary position into the pathway of a vehicle travelling very slowly on a carriageway. The Appeal Tribunal is satisfied that the learned Adjudicator’s apportionment of responsibility is a proper assessment of the parties’ respective contributions to the accident: Mr Callil’s failure to give way, including his failure to apply his brakes while reversing, and Mr Kosonen’s use of his mobile phone. [31] Mr Callil also queried the veracity of the quote used by the Adjudicator to assess quantum. However, the quote was the cheaper of the only two quotes provided at the hearing and was otherwise uncontradicted. It is also consistent with the photographic evidence and both parties’ description of the accident. The learned Adjudicator was therefore entitled to rely upon it. [32] Nothing in the material or the transcript persuades the Appeal Tribunal that the findings were not open to the learned Adjudicator. [33] Having read the transcript and considered the evidence, I find nothing to indicate that the Tribunal acted on a wrong principle, or made mistakes of fact affecting its decision, or was influenced by irrelevant matters. The evidence was capable of supporting the Tribunal’s conclusions. The Tribunal’s decision was unremarkable and I can find no reason to come to a different view. [34] This ground of appeal is dismissed. Should the Appeal Tribunal grant leave to appeal? [35] Leave will not be granted where a party simply desires to re-argue the case on existing or additional evidence.27 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.28 [36] 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. 26 Application for leave to appeal or appeal, Attachment ‘A’, p 3. 27 Piric & Anor v Claudia Tillier Holdings Pty Ltd [2012] QCATA 152, [12] (Wilson J). 28 Ibid. -- 7 of 8 -- 8 There is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused. What is the appropriate Order? [37] In his submissions, Mr Kosonen sought an order that requiring Mr Callil pay the judgement sum of $1,720.80 within 14 days. [38] Because leave to appeal is refused, the original order remains. If not paid already, the judgment sum remains payable. [39] The appropriate Order is: 1. Leave to appeal refused. -- 8 of 8 --