Dooney v Hauge [2013] QCATA 227

CITATION: Dooney v Hauge [2013] QCATA 227 PARTIES: Thomas Dooney t/as Sublime Painting (Appellant) V Ian Hauge t/as Hymie Corp (Respondent) APPLICATION NUMBER: APL201 -13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Peta Stilgoe OAM, Senior Member DELIVERED ON: 5 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 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 3 -- 2 REASONS FOR DECISION [1] In 2006, Mr Dooney, trading as Sublime Painting did some work for Hymie Corp. Mr Dooney invoiced Hymie Corp and was paid. In 2012, Mr Dooney issued a new invoice for the same work. Mr Dooney said that the agreement in 2006 included a contra: he would discount his hourly rate in return for free time in Hymie Corp‟s recording studio. He didn‟t use the free time, so he converted that back into an invoice. Hymie Corp did not pay the new invoice so Mr Dooney filed a claim in the tribunal. The tribunal dismissed his claim. [2] Mr Dooney wants to appeal that decision. He says that Mr Hauge, on behalf of Hymie Corp made false and misleading statements to the tribunal. [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] In support of his application, Mr Dooney filed affidavits from Mr Peterson and Mr Hunter. 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 Dooney 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 [5] Mr Hunter‟s affidavit does not help Mr Dooney. He swears that Mr Dooney told him something. He does not have any independent recollection of the relevant facts. He does not state when his conversation with Mr Dooney took place. The evidence is not credible and will not have any impact on the result of the case. [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. Mr Dooney could have obtained Mr Peterson‟s affidavit prior to the hearing and he has not explained why he did not. Mr Peterson swears to a conversation that occurred in 2006. Unsurprisingly, Mr Peter son‟s evidence supports Mr Dooney‟s case. Unless Mr Peterson is questioned on his recollection, his affidavit lacks credibility. His affidavit should not be admitted and the 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 ss 137 and 138 QCAT Act 6 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408 -- 2 of 3 -- 3 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.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 [8] I‟ve read the transcript carefully and considered the written evidence. The learned Adjudicator had to choose between two competing versions of events. The evidence can support the learned Adjudicator‟s finding and there is nothing in the transcript to persuade me that the learned Adjudicator should have taken a different view of the facts. [9] 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. 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. -- 3 of 3 --