Bergin v Saunders Havill Group [2013] QCATA 272

CITATION: Bergin v Saunders Havill Group [2013] QCATA 272 PARTIES: Dr Patrick Thomas Bergin (Appellant) v Saunders Havill Group Pty Ltd t/as Saunders Havill Group (Respondent) APPLICATION NUMBER: APL308 -13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Peta Stilgoe OAM, Senior Member DELIVERED ON: 1 October 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused CATCHWORDS: MINOR CIVIL DISPUTE – whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549; Fox v Percy (2003) 214 CLR 118. Chambers v Jobling (1986) 7 NSWLR 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. Cachia v Grech [2009] NSWCA 232 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 APPEARANCES and REPRESENTATION (if any): The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009. -- 1 of 4 -- 2 REASONS FOR DECISION [1] Dr Bergin wanted to build a driveway on his rural property at Alberton. His neighbours had other ideas, so he filed proceedings in the Supreme Court. His lawyers decided that Dr Bergin needed a town planning report about whether the Council had to issue an operational works permit for the driveway. Dr Bergin‟s lawyers wrote to Mr Venturini at Saunders Havill Group, asking him to provide that report. Mr Venturini provided the report and issued an invoice for $7,480. Dr Bergin did not pay the invoice, so Saunders Havill filed a claim in the minor civil dispute jurisdiction of the tribunal. The tribunal, in his absence, ordered Dr Bergin pay Saunders Havill the invoice plus costs and interest. [2] Dr Bergin applied to reopen the learned Adjudicator‟s decision, saying that he did not receive the notice of hearing. The tribunal refused his application. Dr Bergin now wants to appeal the learned Adjudicator‟s decision. He says that he did not know the dispute was listed for hearing. He says that he didn‟t sign a contract for Saunders Havill‟s services. He says that Saunders Havill did not provide any service. He says that Mr Venturini engaged in misleading and deceptive conduct because he could not, and did not, perform the services Dr Bergin required. [3] Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?1 Is there a reasonable prospect that the applicant will obtain substantive relief?2 Is leave necessary to correct a substantial injustice caused by some error?3 Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?4 [4] To the extent that Dr Bergin‟s application for leave to appeal is another attempt to reopen the learned Adjudicator‟s decision, it must fail. The tribunal‟s decision on a reopening is final and no appeal lies from it.5 [5] Both parties have filed new material in the appeal file. Presumably, Saunders Havill‟s material is in response to Dr Bergin‟s material. The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined6. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Dr Bergin have obtained the evidence with reasonable 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 2 Cachia v Grech [2009] NSWCA 232 at 2. 3 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 4 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580. 5 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s139(5). 6 Ibid ss 137, 138. -- 2 of 4 -- 3 diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?7 [6] An application for leave to appeal is not, and should not be, an attempt to shore up the deficiencies of a party‟s case at the initial hearing. Dr Bergin filed “comprehensive”8 material in response to the claim. He has not explained why the new material was not available earlier. The new material does not have an important impact on the outcome of the case. The new evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Adjudicator. [7] The appeals tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.9 An appellate tribunal may interfere if the conclusion is „contrary to compelling inferences‟ in the case.10 As the High Court said in Fox v Percy: In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.11 [8] The learned Adjudicator considered the material carefully, even though Dr Bergin did not appear. He considered the detail of Dr Bergin‟s response. These are the same arguments that Dr Bergin makes in this application. The learned Adjudicator noted that Dr Bergin had professional advice about the need for Saunders Havill‟ report and he acted on that advice12. If Dr Bergin did not need the town planning advice, the fault lies with his lawyers, not Saunders Havill. [9] I am not persuaded by Dr Bergin‟s argument that Mr Venturini engaged in misleading and deceptive conduct. Mr Venturini explained that there were conflicting views about whether an operational works permit was required. Even though Dr Bergin had correspondence from Council, his lawyers thought it prudent that he obtain a report. There is no evidence that Mr Venturini could not provide the report because he did, in fact, provide a report. [10] The learned Adjudicator found that the amount charged was “within the commercial range of things.”13 Dr Bergin‟s material did not change the learned Adjudicator‟s view about that.14 The learned Adjudicator‟s decision is supported by the facts. There is nothing in the transcript to persuade me that the learned Adjudicator should have taken a different view of the facts. 7 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408. 8 Transcript page 1-3, line 29. 9 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126. 10 Chambers v Jobling (1986) 7 NSWLR 1 at 10. 11 Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ. 12 Transcript page 1-3, lines 33-38. 13 Transcript page 1-10, lines 32-33. 14 Transcript page 1-10, line 35. -- 3 of 4 -- 4 [11] There is no question of general importance that should be determined by the appeals tribunal. There is no reasonably arguable case that the learned Adjudicator was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused. -- 4 of 4 --