City Chops Pty Ltd v Kridan Pty Ltd [2011] QCATA 145

CITATION: City Chops Pty Ltd v Kridan Pty Ltd [2011] QCATA 145 PARTIES: City Chops Pty Ltd v Kridan Pty Ltd trading as Royal Wholesale Meats APPLICATION NUMBER: APL334-10 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member Peta Stilgoe, Member DELIVERED ON: 21 June 2011 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal refused. CATCHWORDS: MINOR CIVIL DISPUTES – leave to appeal – where appellant claimed undue weight given to respondent‟s evidence at hearing – where appellant claimed adjudicator refused to consider evidence at hearing – 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 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] 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. -- 1 of 3 -- 2 Ms Stilgoe [2] As its name suggests, Kridan Pty Ltd is in the business of supplying meat wholesale. In 2009 it provided meat to City Chops Pty Ltd for which, it says, it did not receive full payment. Kridan brought proceedings in the minor civil disputes jurisdiction of the tribunal claiming $6,125.65 for meat supplied but not paid for by City Chops. At a hearing on 25 October 2010, the learned Adjudicator ordered City Chops pay Kridan $5,215.65, which is a $1,000 reduction in the amount claimed but including the filing fee. [3] City Chops has appealed the decision on these grounds: a) The learned Adjudicator did not consider City Chops‟ documentary evidence even though the evidence was offered to him. In spite of its offer, the learned Adjudicator found that City Chops had, in fact, provided no evidence to back up its claims. b) Kridan‟s evidence at the hearing was not credible and should not have been afforded the weight that was given to it. [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] City Chops‟ contention that the learned Adjudicator did not consider the evidence it presented is misconceived. An examination of the transcript shows that on a number of occasions the learned Adjudicator asked Mr Lee, City Chops‟ representative for evidence in support of his case1. [6] The learned Adjudicator stood down the proceeding for an hour so that Mr Lee could prepare a summary of his payments and present it to Kridan for reconciliation.2 [7] On the parties‟ return, Ms Monaghan, on behalf of Kridan, reported that she had checked Mr Lee‟s reconciliation, that Kridan had accounted for all the payments that Mr Lee referred to and that there was still a shortfall. Mr Lee then asserted that the shortfall had been paid in either cash or by cheque. As to the cheques, Mr Lee referred to cheque stubs but had no real evidence that they had been drawn in favour of Kridan. The learned Adjudicator explored this issue with Mr Lee, inviting him to provide further evidence.3 1 Transcript page 4, lines 9, 38-39, 43; page 5, line 9-10, 22-25, 42-43. 2 Transcript page 5 lines 42-44; page 6 lines 1-2, 6-7. 3 Transcript page 8, lines 42-43; page 9 lines 1-2, 12-13, 23-25. -- 2 of 3 -- 3 [8] I am satisfied that City Chops was given a number of opportunities to present evidence in support of its claim to the learned Adjudicator. I accept that the learned Adjudicator did not examine all of the documents that Mr Lee wanted the tribunal to look at but, given the thorough discussion of the evidence that took place at the hearing, I am satisfied that the learned Adjudicator‟s action in not receiving that evidence did not affect his determination of the hearing. [9] City Chops complains about the fact that Kridan‟s invoices were not signed as an acknowledgement that City Chops received the goods. The learned Adjudicator considered this issue and noted that an invoice does not require a signature.4 That seems to me to be the correct position and that City Chops may be confusing an invoice with a delivery note. [10] 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 [11] 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 [12] City Chops‟ reconciliation fell short of the required standard and, despite an invitation from the learned Adjudicator, it was not able to produce any evidence to rectify this omission. The learned Adjudicator‟s findings of fact can be supported by the evidence presented to him at the hearing. There is nothing in the transcript to persuade me that a contrary inference should be drawn from the evidence. [13] There is no question of general importance that requires a determination by the appeals tribunal. I note that City Chops alleges bias and that the hearing was not fair but there is simply no evidence to substantiate this allegation. [14] There is no evidence of error on the part of the learned Adjudicator; there is no reasonable prospect that City Chops will be granted any substantive relief on appeal and there is no substantial injustice. Leave to appeal should be refused. 4 Transcript page 7, line 32, 36-43. 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. -- 3 of 3 --