Chinchilla 4x4 Centre v Dingley [2016] QCATA 56

CITATION: Chinchilla 4x4 Centre v Dingley [2016] QCATA 56 PARTIES: CHINCHILLA 4x4 CENTRE (Applicant/Respondent) v LISEL DINGLEY (Respondent/Applicant) APPLICATION NUMBER: APL347-15 and APL065-16 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Carmody DELIVERED ON: 9 May 2016 DELIVERED AT: Brisbane ORDERS MADE: THE APPEAL TRIBUNAL ORDERS THAT: 1. Peter Enrich’s statutory declaration dated 20 October 2015 will be allowed as evidence in the matters APL347-15 and APL065-16. CATCHWORDS: MINOR CIVIL DISPUTE – NEW EVIDENCE – whether an application to adduce new evidence should be allowed Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 32 and 128 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 Nadalini v RJW Developments Pty Ltd [2013] QCATA 23 Walton v New Lakelands Pty Ltd [2013] QCATA 49 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”). -- 1 of 3 -- 2 REASONS FOR DECISION [1] Ms Dingley applies for leave to adduce new evidence that was not before the Magistrate, sitting as the Tribunal, in a minor civil dispute hearing in Chinchilla. [2] Chinchilla 4x4 Centre have applied to the Tribunal for leave to appeal that decision and Ms Dingley has brought a counter-application. This new evidence is purportedly relevant to both of those applications. [3] The Appeal Tribunal usually only accepts fresh evidence on appeal if it was not reasonably available at the time the proceeding was heard and determined.1 [4] In Walton v New Lakelands Pty Ltd,2 Senior Member Stilgoe OAM relevantly set out the three tests an applicant seeking to adduce new evidence must satisfy:3 a) The evidence could not have been obtained with reasonable diligence for use at the trial;4 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) That the evidence is credible, though it need not be incontrovertible.” [5] The evidence Ms Dingley seeks to bring before the Appeal Tribunal is a statutory declaration by Peter Enrich, the manager of Dalby Diesel Care, who personally prepared a report relied upon in the original hearing by Ms Dingley. [6] Mr Enrich did not attend the hearing to give evidence personally. The transcript, at 1-2:24, shows: MEMBER: (…) I adjourned this on the last occasion to give Ms Dingley the opportunity of having Mr Eric, Mr Peter Eric (sic) come along to give evidence. MR FOGARTY: Yes. MEMBER: Yes. Is Mr Eric (sic) here? MS DINGLEY: No. Until this week he was coming and then this week he decided he was too busy. I put through an application for the subpoena. MEMBER: Yes. 1 cf QCAT Act s 138; Nadalini v RJW Developments Pty Ltd [2013] QCATA 23 [15]. 2 [2013] QCATA 49. 3 Ibid [5] citing Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, 408. 4 Paragraph 4 of Chinchilla 4x4’s submissions. -- 2 of 3 -- 3 MS DINGLEY: I’m not sure that that got to him in time. But he has provided us with photos of the parts. [7] Ms Dingley relied on the photographs provided by Mr Enrich in her oral submissions. [8] In Chinchilla 4x4 Centre’s submissions dated 25 September 2015, it says: “(…) the evidence supplied by the Respondent was in fact not supplied by Dalby Diesel Care as she led everyone to believe, but rather from herself and she had highlighted the pictures provided what she thought Chinchilla 4x4 did verse what she thought it should be, showing she had no idea.” [9] It appears Ms Dingley now wants to adduce this evidence to refute this claim. She submits that the new evidence proves the information before the Magistrate was indeed created by Dalby Diesel Care. [10] Since Chinchilla 4x4 seeks to run the claim that her evidence at the first instance was misleading or untruthful, I am satisfied it is in the interests of justice for her to do so. [11] Based on the transcript, I am satisfied Ms Dingley was reasonably diligent in her attempts to obtain Mr Enrich’s evidence for the hearing. [12] Mr Enrich’s evidence was effectively before the Tribunal and the new evidence is only probative of its authenticity, which Chinchilla 4x4 is seeking to dispute. [13] Finally, Chinchilla 4x4 is not prejudiced in any material way, other than the damage admission might do to its claim that Ms Dingley’s evidence misled the Tribunal. [14] Therefore, the Appeal Tribunal orders that Peter Enrich’s statutory declaration dated 20 October 2015 will be allowed as evidence in the matters APL347-15 and APL065-16. -- 3 of 3 --