Bessarb Pty Ltd v Slater Leahy Investments [2011] QCATA 320

CITATION: Bessarb Pty Ltd v Slater Leahy Investments [2011] QCATA 320 PARTIES: Bessarb Pty Ltd t/as Laughter Australia v Slater Leahy Investments t/as How Bazaar Trading APPLICATION NUMBER: APL205-11 / APL346-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member Peta Stilgoe, Member DELIVERED ON: 17 November 2011 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal refused. CATCHWORDS: MINOR CIVIL DISPUTE – where claim under distribution contract – where documents necessary to prove claim were in possession of respondent – where applicant did not seek production of documents – whether applicant had discharged the onus to prove its claim 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 APPEARANCES and REPRESENTATION (if any): This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009. REASONS FOR DECISION Mr Oliver -- 1 of 4 -- 2 [1] In this matter the Appeal Tribunal consisted of Ms Stilgoe, QCAT Member and me. I have had the benefit of reading her reasons in draft. I agree with her reasons, and her conclusions, and the order she proposes. Ms Stilgoe [2] Bessarb Pty Ltd t/as Laughter Australia operated a business in which it placed stands of stickers, signs and other merchandise in retail outlets. The retailer paid a deposit for the stand but the merchandise was placed on consignment. Bessarb granted a distribution agreement to Von Gradon Investments Pty Ltd, by which the latter company would maintain the stock of merchandise, collect payment for stock sold and remit it to Bessarb. [3] Von Gradon sold its distribution rights to Slater Leahy Investments t/as How Bazaar Trading in 2005. There was no stock take at the time of sale. [4] The distribution agreement expired in October 2009 and the parties, for a variety of reasons, did not enter into a new agreement. Bessarb wanted its consignment stock returned together with a current list of retailers who held stands. For want of a better description, Slater “held out”. Eventually, Bessarb brought a claim for $25,000 as an arbitrary sum for the value of the stands and stock it said was outstanding. [5] The learned Adjudicator decided that Bessarb had not discharged its onus of proof because it could not say, with any certainty, what stock Slater held, what stands were with retailers and, therefore, what amount was owed. She dismissed Bessarb‟s claim. [6] Bessarb has appealed the learned Adjudicator‟s decision on these grounds: a) The learned Adjudicator‟s decision will cause the company a total loss as it cannot prove ownership of the stands and stock. b) Slater handed the learned Adjudicator a list that has no bearing on the claim. c) The learned Adjudicator accepted Slater‟s list as correct. d) Bessarb cannot verify its claim until Slater produces copies of contracts for each stand. [7] 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 -- 2 of 4 -- 3 asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error? [8] Bessarb has provided a lengthy submission to the appeal tribunal, together with an affidavit from Ian Maddox. The submission responds to, and argues against, findings of the learned Adjudicator but much of that argument is by way of fresh evidence that was not produced to the learned Adjudicator at the hearing. [9] The appeal tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined1. Ordinarily, an applicant for leave to adduce such evidence must satisfy each of the following tests: a) The evidence could not have been obtained with reasonable diligence for use at the trial; b) The evidence, if allowed, would probably have an important impact on the result of the case (although it need not be demonstrated that it would be decisive); and c) That the evidence is credible though it need not be incontrovertible.2 [10] 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. Bessarb has provided no explanation as to why this material was not available earlier. That evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Adjudicator. [11] The sole duty of the appeal tribunal is to determine whether there is an error in the primary decision. It is not the task of the appeal tribunal to decide where the truth lay as between the competing versions given by the parties.3 [12] The learned Adjudicator formed the view that she was not satisfied that Bessarb had discharged the obligation to prove its claim. The appeal tribunal is in no better position than the learned Adjudicator in that regard. The learned Adjudicator accepted the truth of Ms Fisher‟s affidavit. It is no answer for Bessarb to now assert that its contents are untrue and ask the tribunal to subpoena Ms Fisher to “answer why she made her false statements.” Bessarb could have raised that issue at the hearing and asked for an adjournment. It did not do so. [13] Bessarb‟s main complaint is that Slater has not provided copies of the documents that it needs to prove its loss. The tribunal has power to require a party to produce documents4 but Bessarb has never asked the 1 Sections 137 and 138 QCAT Act. 2 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408. 3 Fox v Percy (2003) 214 CLR 118 at 129 per Gleeson CJ, Gummow and Kirby JJ. 4 See, for example, ss 62 and 97 QCAT Act. -- 3 of 4 -- 4 tribunal to exercise that power. It cannot complain that it does not have the documents necessary to prove its claim when it has taken no action to have them produced. [14] 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.5 [15] An appellate tribunal may interfere, however, if the conclusion at first instance is „contrary to compelling inferences‟ in the case.6 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.7 [16] There is nothing in the transcript that persuades me that the learned Adjudicator should have taken a different view of the facts or that she should have been persuaded that Bessarb did prove its claim. [17] I note the submission that the learned Adjudicator‟s decision will cause the company a total loss as it cannot prove ownership of the stands and stock. I do not necessarily accept that as a natural consequence of the learned Adjudicator‟s decision. The uncontested evidence is that there are still stands in various locations. Slater offered to return the stands stored in its warehouse. Even if I accept the learned Adjudicator‟s decision will result in a loss of income to Bessarb, that is not a “substantial injustice” within the meaning contemplated by the authorities.8 [18] There is no question of general importance that should be determined by the appeal tribunal; there is no reasonably arguable case that the learned Adjudicator was in error; there is no reasonable prospect of substantive 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. 5 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126. 6 Chambers v Jobling (1986) 7 NSWLR 1 at 10. 7 Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ. 8 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. -- 4 of 4 --