Blocksidge v Raefire Pty Ltd t/as Toowoomba Concrete Sawing and Coring Services [2013] QCATA 237

CITATION: Blocksidge v Raefire Pty Ltd t/as Toowoomba Concrete Sawing and Coring Services [2013] QCATA 237 PARTIES: Mr Michael David Blocksidge (Appellant) V Raefire Pty Ltd t/as Toowoomba Concrete Sawing and Coring Services (Respondent) APPLICATION NUMBER: APL214 -13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Peta Stilgoe OAM, Senior Member DELIVERED ON: 26 August 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 Attorney-General v Kehoe [2001] 2 Qd R 350; Tully v McIntyre [2001] 2 Qd 338 -- 1 of 4 -- 2 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. REASONS FOR DECISION [1] In 2011, Raefire Pty Ltd did some work for Mr Blocksidge. It rendered invoices totalling $1,353; Mr Blocksidge did not pay them. Raefire filed a claim in the tribunal. Mr Blocksidge filed a counterclaim. The learned Adjudicator ordered Mr Blocksidge pay Raefire $1,000. He did not deal with Mr Blocksidge‟s counterclaim. [2] Mr Blocksidge wants to appeal the decision. He says that the dispute should have been filed in the building jurisdiction of the tribunal. He says that Raefire provided false and misleading information to the tribunal. Mr Blocksidge says that the learned Adjudicator did not consider the evidence that he filed. He says the learned Adjudicator did not provide reasons for his decision. [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] Raefire‟s claim as filed was a simple debt dispute. The minor civil dispute jurisdiction was the appropriate jurisdiction for its claim. Mr Blocksidge raised the issue of poor workmanship in his response. The tribunal struck out his counterclaim on 8 January 2013, well before the hearing. The order, unusually, suggested an alternative to Mr Blocksidge; that he file a fresh claim and the two matters be heard together. He chose not to follow the tribunal‟s suggestion and he did not appeal that decision. He did not apply to transfer the dispute to the building jurisdiction. I am satisfied that the tribunal in its minor civil dispute jurisdiction was the appropriate forum for this dispute and that the learned Adjudicator did not fall into error by hearing it. [5] Mr Blocksidge has filed fresh material with his application for leave to appeal. Mr Blocksidge has provided a transcript of Magistrates Court proceedings involving Mr Armanasco, director of Raefire. 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. -- 2 of 4 -- 3 [6] The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined5. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Mr Blocksidge have obtained the evidence with reasonable 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?6 [7] 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. The transcript was created in October 2012, well before the hearing. Mr Blocksidge has provided no explanation as to why this material was not available earlier. It does not go to the facts of this dispute. The evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Adjudicator [8] The appeals 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 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.9 [9] Mr Blocksidge‟s defence to Raefire‟s claim was that the work was not done properly. The learned Adjudicator heard from Mr Blocksidge and Mr Armanasco. Mr Blocksidge provided a photo of the work but the learned Adjudicator did not find it helpful10. That is not so surprising, given the size of the photo provided. It is also not surprising that the learned Adjudicator knew nothing about concrete11. As he explained12, the learned Adjudicator is a lawyer who must decided cases according to the law. Mr Blocksidge was unable to persuade the learned Adjudicator that the work was defective. The learned Adjudicator‟s decision was open on the evidence and there is nothing in the transcript to persuade me the learned Adjudicator should have taken a different view. [10] The nature and extent of the obligation to provide full reasons varies according to the nature of the case.13 In QCAT‟s Minor Civil Disputes jurisdiction, giving immediate oral decisions accords with the spirit and purpose of the Queensland Civil and Administrative Tribunal Act 2009. 5 QCAT Act ss 137 and 138. 6 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408 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 Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ. 10 Transcript page 9, lines 19-21. 11 Ibid. 12 Transcript page 13, lines 34-37. 13 Attorney-General v Kehoe [2001] 2 Qd R 350 at 356; Tully v McIntyre [2001] 2 Qd R 338. -- 3 of 4 -- 4 Those decisions will not be exposed to criticism which fails to acknowledge the circumstances in which they are given, or the pressure of the Adjudicator‟s caseload. The learned Adjudicator gave short reasons for his decision at the end of the hearing. Although they are not ideal, they were sufficient to tell the parties, and in particular Mr Blocksidge, why he made his decision. The learned Adjudicator‟s brief reasons are not a ground for leave to appeal. [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 --