Chirnside v Waratah Lodge Horse Agistment Pty Ltd [2013] QCATA 73

CITATION: Chirnside v Waratah Lodge Horse Agistment Pty Ltd [2013] QCATA 73 PARTIES: Sharon Chirnside (Applicant/Appellant) V Waratah Lodge Horse Agistment Pty Ltd (Respondent) APPLICATION NUMBER: APL170 -12 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Peta Stilgoe, Senior Member DELIVERED ON: 5 March 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009, s137, s 138 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41, cited Cachia v Grech [2009] NSWCA 232, cited Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, cited McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, cited Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, cited Dearman v Dearman (1908) 7 CLR 549, cited Fox v Percy (2003) 214 CLR 118, cited Chambers v Jobling (1986) 7 NSWLR 1, cited -- 1 of 3 -- 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] Ms Chirnside placed three horses on agistment with Waratah Lodge Horse Agistment Pty Ltd. She did not pay the agistment fees so Waratah Lodge brought a claim in the Minor Civil Disputes jurisdiction of the Tribunal. Ms Chirnside did not appear at the first hearing, which was adjourned because Waratah Lodge wanted to increase its claim. Ms Chirnside appeared at the second hearing. The learned Adjudicator ordered that Ms Chirnside pay Waratah Lodge $14,547.70. [2] Ms Chirnside wants to appeal that decision. She disputes the facts presented at the hearing and the learned Adjudicator‟s findings of fact. She says that the learned Adjudicator erred in law by finding that she was liable for the debt. She says that she has a good defence and reasonable prospects of success on appeal. [3] 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] Ms Chirnside has filed a number of affidavits with her application for leave to appeal. The Appeals Tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined.5 Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Ms Chirnside 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] 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. Ms Chirnside told the learned Adjudicator that she could get witnesses to give 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, ss 137, 138. 6 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408. -- 2 of 3 -- 3 evidence.7 The learned Adjudicator observed that Ms Chirnside knew the hearing was “set for today”8 but Ms Chirnside did not explain why her witnesses were not available. Ms Chirnside has still not explained why this material was not available earlier. I will not consider this evidence when making my decision. [6] 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 Percy11: 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.12 [7] I have read the transcript carefully. Ms Chirnside admits she took the horses to Waratah Lodge for agistment. She admits that she left them there. She admits part of the debt but made no offer to pay the part that she accepts. There is nothing in the transcript that persuades me the learned Adjudicator should have taken a different view of the facts. [8] 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 Transcript, pages 4-5, 12, 24. 8 Transcript page 24 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 (2003) 214 CLR 118. 12 Ibid 128 per Gleeson CJ, Gummow and Kirby JJ. -- 3 of 3 --