Crowny v Abbasi [2017] QCATA 122

CITATION: Crowny v Abbasi [2017] QCATA 122 PARTIES: Sam Crowny (Appellant) v Pardis Abbasi (Respondent) APPLICATION NUMBER: APL055-17 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Gordon DELIVERED ON: 2 November 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. The appellant’s application to adduce fresh evidence is refused. 2. Leave to appeal is refused. The appeal therefore fails. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – where the fresh evidence could have been obtained for the original hearing – whether should be admitted on appeal APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN NO APPEAL LIES – leave to appeal – where minor civil dispute heard by Adjudicator – whether any reasonably arguable grounds of appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 147(2) Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 applied APPEARANCES: This appeal was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). -- 1 of 7 -- 2 REPRESENTATIVES: APPELLANT: Represented by MacGregor O’Reilly Solicitors RESPONDENT: Represented by GTC Lawyers REASONS FOR DECISION In this appeal Sam Crowny says that the Adjudicator who heard the case and made an order against him was wrong at the hearing to reject the evidence he submitted in written form. Mr Crowny has applied for leave to adduce fresh evidence and he asks for that evidence to be taken into account by the Appeal Tribunal when resolving the appeal. This appeal demonstrates how important it is for litigants to prepare their evidence properly for hearings in the tribunal. The facts of the case as found by the Adjudicator at the hearing were that on 10 May 2015 Mr Crowny supplied a car to Ms Abbasi. In return she paid him $16,000 and agreed to pay monthly instalments to him. In total she paid him $20,692. Then about 4 months later in September 2015 Mr Crowny and Ms Abbasi agreed to end their arrangement over the car. So Mr Crowny took the car back and agreed to pay her back the $20,692 that she had paid. In her claim in the tribunal, Ms Abbasi said that she had only received $5,000 back so she claimed $15,692 plus various other costs. Mr Crowny said that he had in fact paid back $18,000 in total. He said that in addition to the $5,000 admitted by Ms Abbasi, he had paid a further $8,000 in cash on 16 September 2015 (which Ms Abbasi used to purchase another car) and he had paid a further $5,000 in cash on 2 December 2015. He did not obtain receipts for these payments. After hearing the parties at some length the Adjudicator accepted Ms Abbasi’s claim and ordered Mr Crowny to pay her the sum of $15,692. In this appeal Mr Crowny says that the Adjudicator “deemed inadmissible” the written evidence he presented because it was “not in the proper form and/or not witnessed correctly and/or a key witness not making an appearance at the hearing”. He says he was not legally represented at the time and he was not aware that the evidence would not be admitted in evidence. He says that if the evidence had been in the proper form it would have been admissible and would have proved that he had paid an additional $13,000. Mr Crowny has applied to put fresh evidence before the Appeal Tribunal. The fresh evidence is: a) Affidavit of Mehdi Ghardiri, who says that at a meeting on 16 September 2015 he met with Mr Crowny, Ms Abbasi and Ahmad -- 2 of 7 -- 3 Hazbavi and saw Mr Crowny count $8,000 in cash and hand this to Ms Abbasi. He says that 6 days later on 22 September 2015 Ms Abbasi paid him $8,000 in cash to purchase a Toyota car. There is also a statutory declaration by Mr Ghardiri to the same effect with some more detail. b) Affidavit of Fariba Blackburn, saying that Ms Abbasi told her that Mr Crowny had already refunded $8,000 in cash when she returned the car to him and Mr Ghardiri was present “at the time of the exchange”. There is also a statutory declaration in which she says that Farid Jaberi Ahromi is her brother and what he says about the $8,000 is contrary to what Ms Abbasi told her. The reference here to what Mr Ahromi says is to evidence given at the hearing by Mr Ahromi. He said he had given Ms Abbasi the $8,000 which she used to purchase another vehicle.1 c) Statutory declaration from Alireza Charmsaz that he witnessed Mr Crowny pay Ms Abbasi $5,000 cash on 2 December 2015. d) Affidavit of Sam Crowny in which he says that on 16 September 2015 he paid Ms Abbasi $8,000 in cash. Then on 2 December 2015 he paid $5,000 to her in cash. Despite asking for receipts for these payments he did not get them, but he did get receipts for his subsequent payments, which were five separate payments of $1,000 each. He says that having made four of these payments of $1,000 on about 19 January 2016 he agreed with Ms Abbasi that he would not make any further payments to her until he received receipts for the $8,000 and $5,000. Despite this, he paid a further $1,000 on about 17 February 2016. Mr Crowny also seeks to put before the Appeal Tribunal other fresh evidence which he has not yet provided. This is bank statement evidence and car sale proceeds evidence presumably showing that he had cash in his possession at the time of the payments that he says he made. There is a difficulty with the bank statement and car sales proceeds evidence because the tribunal made a disclosure order on 8 November 2016. This required any relevant documents to be filed in the tribunal and served on the other party within 14 days. The direction said that except with the leave of the tribunal neither party could rely upon or seek to produce any other document at the hearing of the application unless a copy of any such document was filed and served in accordance with the order. Another problem with this evidence is that during the hearing the Adjudicator asked Mr Crowny whether he had any bank records which 1 Transcript 1-13. -- 3 of 7 -- 4 would show money being withdrawn from his account to enable him to make the payments. Mr Crowny was quite clear that he did not.2 The evidence that Mr Crowny now seeks to put before the Appeal Tribunal is referred to as “fresh evidence” in the relevant statutory provision and it can only be received if the Appeal Tribunal so decides.3 When it is right to allow fresh evidence to be admitted on appeal is firmly established by case law. Usually these three tests should be satisfied:4 a) the evidence could not have been obtained with reasonable diligence for use at the hearing; b) the evidence, if allowed, would probably have an important impact on the result of the case (although it need not be demonstrated that it would be decisive); and c) the evidence is credible, though it need not be incontrovertible. There is a good reason for these principles. Appeals are not generally an opportunity for a losing party to have a second chance to win a hearing which they lost because they were not properly prepared. If this were generally permitted, it would seriously interfere with the tribunal’s ability to deal with disputes efficiently and speedily. It could also be unfair to the other party. The first of the fresh evidence tests causes difficulty for Mr Crowny. The sole issue in the case was whether he had paid the $8,000 and the $5,000 in cash in further discharge of the amount owed. He knew that Mrs Abbasi was saying that he had not paid these amounts at all. So it must have been obvious to him that the decision maker at the hearing would need to have a close look at the evidence of both sides on this issue. Any witnesses who either saw the payments being made or (in the case of one witness) heard Mrs Abbasi refer to receiving one of them, would be relevant. It would have been obvious to him that if he wished to rely on such evidence, he would need to present it to the decision maker at the hearing. In the application to put fresh evidence before the Appeal Tribunal it is for Mr Crowny to show that it could not have been obtained with reasonable diligence for use at the hearing. With respect to the bank statement and car sales evidence there is nothing said about this. All that is said is that Mr Crowny was not aware that this would be relevant evidence. Clearly it could have been obtained for the hearing. As for the documentary evidence from the witnesses in the form of affidavits and statutory declarations, significantly Mr Crowny is not asking for this 2 Transcript 1-52 line 40. 3 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 147(2). 4 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, 408. -- 4 of 7 -- 5 appeal to be dealt with at an oral hearing.5 Instead it will be dealt with on the papers. On that basis it is clear that it would have been possible to put this written evidence before the tribunal at the hearing. It may however be right to regard the application for permission to adduce fresh evidence as an application to call these new witnesses in person at an oral hearing so that they can be cross-examined. In this type of case, it might be important do this. One reason is that Ms Abbasi says that their evidence should be treated with suspicion because they are Mr Crowny’s friends and/or work colleagues.6 There is also a suggestion that if Mr Crowny did make another payment of $5,000 it may not have been a part repayment of the debt of $15,692 at all. It may have been a payment for something else.7 But even on that basis, Mr Crowny has difficulty in showing that the evidence could not have been obtained for use at the hearing. As for the witness evidence of Fariba Blackburn, it is said that at the time of the hearing Mr Crowny did not realise she could give relevant evidence – only after the hearing when he spoke to her did he realise she had relevant information. This does not pass the fresh evidence test. Clearly this evidence could have been obtained if required. As for the witness evidence of Mr Ghardiri it is said in the submissions in support of this appeal that Mr Ghardiri could not attend the hearing due to work commitments and being in Melbourne unexpectedly at that time. In fact, the Adjudicator said she would like to hear from Mr Ghardiri and an attempt was made during the hearing to call him by telephone to give evidence but he could not be contacted.8 As for Mr Charmsaz, it is said that he was not available at the hearing because he was overseas at the time for personal family reasons. The problem with this information about the availability of these witnesses at the hearing is that it is contained in solicitor’s submissions on Mr Crowny’s behalf. There is no evidence about these matters before the Appeal Tribunal. The likelihood is that the solicitors are merely repeating information given to them about what happened with these witnesses by Mr Crowny. It is up to the party to ensure that they have their witnesses available to give evidence at the hearing. If this cannot be achieved, then the evidence needs to be put in a form which can be accepted in evidence and given such weight by the decision maker as is appropriate bearing in mind the 5 If the parties wanted an oral hearing they were given until 21 September 2017 to ask for one. 6 Transcript 1-6 line 39. 7 Mr Crowny told the Adjudicator that he paid the $5,000 because of “blackmail” but that he still regarded it as coming off the money he owed her – Transcript 1-46. 8 Transcript 1-23 line 40, 1-24 line 34, 1-45 line 24. -- 5 of 7 -- 6 relevance of the evidence to the issues in the case. Alternatively, if a crucial witness cannot attend the hearing a party may ask the tribunal to postpone the hearing to enable this to happen. Obviously to keep disruption of the list to a minimum this needs to be done as early as possible and the chance of achieving such a postponement diminishes as the hearing approaches. In the circumstances I am not persuaded that any of the new evidence which Mr Crowny wishes to put before the Appeal Tribunal could not have been obtained with reasonable diligence for use at the trial. The application to adduce new evidence is refused. Turning now to the appeal itself, in the grounds of appeal Mr Crowny refers to statements which were “deemed inadmissible” by the Adjudicator. It is not said however, that the Adjudicator was wrong not to admit them. In fact, the Adjudicator did not deem anything inadmissible. There were two statements attached to the Response to the claim. Both statements were made by Mr Crowny himself. One said that he had paid Ms Abbasi $8,000 in cash and the other said that he had paid her $5,000 cash. Each statement was then “witnessed” by someone else who appeared to have signed it. The first statement appeared to have been witnessed by Mr Ghardiri. The second by Mr Charmsaz. But these witnesses, instead of declaring that they witnessed the signature of Mr Crowny in the usual way, said: name of witness witnessed the said statement above and here by acknowledge that this is true In her reasons, the Adjudicator said that it was unclear whether this was saying that the witness saw the money being given to Ms Abbasi or whether this was merely witnessing the statement by Mr Crowny to that effect. The Adjudicator then said that it was very difficult to give much weight to the statement at all. So the Adjudicator was not saying that the statements were inadmissible as Mr Crowny says in this appeal. Instead, she accepted them in evidence but gave them little weight. Now that we have affidavits from both the people who signed the statements attached to the Response we can see that these witnesses were saying that they actually witnessed the handing over of cash to Ms Abbasi. But the Adjudicator did not have this affidavit evidence before her, and because of the ambiguity of the statements she had to decide what weight to give them. Her decision to give them little weight cannot be criticised in the circumstances. The Adjudicator rightly regarded the evidential burden of proof as shifting to Mr Crowny once he admitted that he owed Ms Abbasi the sum $15,692 -- 6 of 7 -- 7 upon receiving back the car from her.9 This meant it was for Ms Crowny to prove that he made the two payments of $8,000 and $5,000 as he claimed but which were denied by Ms Abbasi. The Adjudicator’s main reason for reaching the conclusion that Mr Crowny had not done so was that he had no receipts for the two additional payments, despite their being made in cash. She also had regard to a receipt written out by Ms Abbasi on 18 January 2016 which stated: This is Pardis Abbasi. $3,000 has been payed to me from Sam Crowny. $1,000 every month in the period of 3 months. Pardis Abbasi 18.01.2016 The Adjudicator noted that this receipt made no mention of the alleged payments of $8,000 and $5,000 as would be expected if they had been made by that time as Mr Crowny said.10 There were two other receipts for $1,000 which made no mention the payments either. On the evidence before the Adjudicator she had no choice but to make the decision that she did. Apart from the Adjudicator’s failure to admit in evidence Mr Crowny’s material, which as can be seen from the above did not happen, there are no other grounds of appeal. Appeals in minor civil disputes can only be brought with the leave of the Appeal Tribunal. Such leave will only be given if there is an arguable case on appeal. Such appeals are only arguable if the decision maker is in error in law, or has made a factual finding which could not be made on the evidence. This is not the case here. Leave to appeal is refused and the appeal therefore fails. 9 Transcript 1-21 line 40. 10 Transcript 1-30 line 12, 1-31 line 13, 1-33 line 39. -- 7 of 7 --