Degen v Somerset Excavations [2013] QCATA 75

CITATION: Degen v Somerset Excavations [2013] QCATA 75 PARTIES: Del Degen (Applicant/Appellant) V Somerset Excavations (Respondent) APPLICATION NUMBER: APL375 -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 Dearman v Dearman (1908) 7 CLR 549, cited Fox v Percy (2003) 214 CLR 118, cited Chambers v Jobling (1986) 7 NSWLR 1, cited Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, applied 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(QCAT Act). REASONS FOR DECISION [1] Mr Somerset, who operates a business under the name Somerset Excavations, agreed to do excavation and earthmoving work for Mrs Degen. They agreed that Mr Somerset would do the work in exchange for a -- 1 of 4 -- 2 truck but the precise terms of the agreement were vague. Mr Somerset thought he was doing work in exchange for a “working truck”. Mrs Degen thought that they agreed the value of the work, and the truck, at $6,000. [2] Mr Somerset did about $4,000 worth of work. He realised that the truck was not a “working truck” so he stopped work. He claimed the difference between the value of the work done and his estimate of the value of the truck. The learned Adjudicator agreed with Mr Somerset‟s version of events and ordered Mrs Degen pay him $2,356.50. [3] Mrs Degen wants to appeal that decision. She says that the learned Adjudicator did not consider “significant written evidence” but relied on verbal evidence. She says that the learned Adjudicator discounted Mr Tatnell‟s evidence because he was not present at the hearing. She says that the learned Adjudicator was under severe time constraints which resulted in a miscarriage of justice. [4] Because this is an appeal from a decision of the Tribunal in its Minor Civil Dispute jurisdiction, leave is necessary. Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error? [5] Both Mrs Degen and Mr Somerset filed further affidavits in support of the 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.1 Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could they 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?2 [6] There is no explanation as to why this material was not available earlier. The new evidence does not have an important impact on the result of the case. I will not consider it in deciding this application. [7] Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.3 1 Queensland Civil and Administrative Tribunal Act 2009 ss 137, 138. 2 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408. 3 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126. -- 2 of 4 -- 3 [8] An appellate tribunal may interfere, however, if the conclusion at first instance is „contrary to compelling inferences‟ in the case.4 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.5 [9] Mrs Degen and Mr Tatnell both filed affidavits. The learned Adjudicator read the file before the hearing.6 He referred to Mrs Degen‟s affidavit7 and Mr Tatnell‟s affidavit8 in a way that shows he knew and understood the contents of both. The transcript does not support Mrs Degen‟s claim that the learned Adjudicator did not consider the written evidence. [10] Mrs Degen told the learned Adjudicator that she could produce witnesses to say the truck was a working truck.9 If this was a reference to her husband then the learned Adjudicator was right to discount it. The condition of the truck was always an issue and Mr Tatnell does not refer to it at all in his affidavit. The transcript does not otherwise support Mrs Degen‟s claim that the learned Adjudicator discounted Mr Tatnell's evidence. [11] The Minor Civil Disputes jurisdiction is a busy and demanding one. Experienced adjudicators often understand the issues in dispute without the need for lengthy submissions from the parties. This hearing took 57 minutes which is reasonable for a dispute of this type. The learned Adjudicator actively participated in the hearing, seeking evidence from both parties and criticising them equally when the evidence was lacking. [12] The transcript does not support Mrs Degen‟s claim that the learned Adjudicator “hastily tried unsuccessfully to understand a complex situation in the moment.” The learned Adjudicator had to determine the terms of an oral contract and whether the contract had been breached. He had to determine the value of work done and the value of the truck. He received little assistance from the parties, both of whose evidence was confused and contradictory. [13] There is nothing in the transcript that persuades me that the learned Adjudicator should have taken a different view of the facts. [14] 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 4 Chambers v Jobling (1986) 7 NSWLR 1 at 10. 5 Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ. 6 Transcript page 2 7 Transcript page 2 8 Transcript page 3 9 Transcript page 11 -- 3 of 4 -- 4 relief on appeal; and there is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused. -- 4 of 4 --