Cheang v Dry Cleaners [2014] QCATA 137

CITATION: Cheang v Dry Cleaners [2014] QCATA 137 PARTIES: David Cheang (Applicant/Appellant) v Peerless Dry Cleaners Neweys Dry Cleaners (Respondents) APPLICATION NUMBER: APL324-13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe, OAM DELIVERED ON: 11 June 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – wedding dresses dry cleaned – dispute over whether dry cleaning caused damage – tribunal ordered refund of dry cleaning costs – whether grounds for leave to appeal Australian Consumer Law ss 134, 151 Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Chambers v Jobling (1986) 7 NSWLR 1 Pickering v McArthur [2005] QCA 294 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). REASONS FOR DECISION [1] Peerless Dry Cleaners took two wedding dresses for dry cleaning. When the dresses were returned, there was minor damage to the beading -- 1 of 3 -- 2 and lace of one dress and the lace of the other dress. Both dresses were creased and dirty marks on the trains were still visible. Mr Cheang filed a claim for the cost of replacing the dresses. An Adjudicator ordered Peerless to refund the dry cleaning costs, the cost of a replacement bead, the filing fee and costs. [2] Mr Cheang wants to appeal that decision. He says the learned Adjudicator misinterpreted some relevant facts. He says the learned Adjudicator applied the wrong law. He says that the learned Adjudicator did not accept electronic evidence of the damage to the dresses and the hearing should be reopened to enable that evidence to be considered. [3] Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The principles the appeals tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as His Honour then was) in Pickering v McArthur1: There are numerous authorities, in varying language but with unvarying emphasis, that leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error. [4] Mr Cheang referred the appeals tribunal to s 151 of the Australian Consumer Law. That section relates to offences under the Act, for which the tribunal has no jurisdiction. [5] He also referred the appeals tribunal to s 137 of the Australian Consumer Law. That section relates to an “information standard”. An “information standard” is a document produced by the Commonwealth Minister2. Mr Cheang did not produce such a standard. Again, Mr Cheang’s submissions are not relevant to the dispute. [6] Mr Cheang is correct when he says that the learned Adjudicator refused to accept electronic evidence. The learned Adjudicator pointed out that he could not accept evidence unless the other side could examine it3 and the evidence stayed on the tribunal file during the appeal period4. The learned Adjudicator told Mr Cheang that he could look at evidence on Mr Cheang’s laptop but the laptop would have to stay with the tribunal file5. Mr Cheang’s reply was “Okay. All right.”6 He did not ask for an adjournment, even for a short time, so that he could download and print the photos. If Mr Cheang wanted to rely on the photos, it was up to him to make arrangements once the learned Adjudicator brought the problem to his attention. 1 [2005] QCA 294 at [3]. 2 Australian Consumer Law s 134(1). 3 Transcript page 1-21 lines 9-11. 4 Transcript page 1-2, lines 44-45; page 1-21, lines 15-16, 24-25. 5 Transcript page 1-21, lines 29-30. 6 Transcript page 1-21, line 32. -- 2 of 3 -- 3 [7] This is not an application to reopen the original proceedings. If it was, Mr Cheang would have to show that significant new evidence had arisen that was not reasonably available at the time of the hearing. The evidence Mr Cheang wants the appeals tribunal to look at is not “new” and it was available at the original hearing. Therefore, a reopening ground does not exist. [8] The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.7 An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.8 [9] As to the damage to the dresses, I have read the transcript and considered the material on the original file. The evidence can support the learned Adjudicator’s findings and I can find no compelling reason to come to a different view. [10] Even if I was persuaded to come to a different decision, Mr Cheang has a fundamental problem with his claim. He does not own the dresses because the tax invoices from Elizabeth de Varga are directed to Ms Lum. Mr Cheang did not put the dresses in for dry cleaning because the Peerless tax invoices name Ms Lum. Therefore, Mr Cheang has suffered no loss. [11] I note that Mr Cheang’s wife was outside the hearing room on the day of the hearing9. Mr Cheang did not want her to give evidence. Mr Cheang did not say, as he could have, that he appeared as Ms Lum’s agent. If Peerless had also applied for leave to appeal, it would have been wholly successful. It did not, so the appropriate order is to refuse leave to appeal because there is no reasonable prospect of substantive relief on appeal. 7 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126. 8 Chambers v Jobling (1986) 7 NSWLR 1 at 10. 9 Transcript page 1-35. -- 3 of 3 --