Clarke v Behan [2011] QCATA 110

CITATION: Clarke v Behan [2011] QCATA 110 PARTIES: Peter Charles Clarke (trading as Wechsels Auto Services) (Applicant/Appellant) v Jeffrey Kenneth Behan (Respondent) APPLICATION NUMBER: APL101-11 MATTER TYPE: Appeal HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President DELIVERED ON: 19 May 2011 DELIVERED AT: Brisbane ORDERS MADE: Application for leave to appeal refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where Mr Behan brought proceedings in QCAT claiming $6,809.70 from Mr Clarke being the cost of work done on a car engine and for damages to repair negligent workmanship – where the Magistrate found in favour of Mr Behan and ordered that Mr Clarke pay him $5,559.70 for the claim, and $90 filing fee – where Mr Clarke now seeks leave to appeal that decision – whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act 2009, s 43 Fox v Percy [2003] 214 CLR 118 APPEARANCES and REPRESENTATION (if any): This proceeding was heard on the papers, with written submissions from the parties, pursuant to s 32(2) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). -- 1 of 3 -- 2 REASONS FOR DECISION [1] Mr Behan brought proceedings in QCAT claiming $6,809.70 from Mr Clarke (trading as Wechsels Auto Services), being the cost of work done on a car engine owned by Mr Behan, and what he alleged were damages to repair Mr Clarke’s alleged negligent workmanship. [2] The matter came on before a Magistrate sitting as a QCAT Member in the Tribunal’s Minor Civil Disputes jurisdiction in April 2010. The Magistrate dismissed the matter. Mr Behan successfully appealed against that decision and it was later heard by another Magistrate over two days, on 19 January and 9 February 2011. [3] That Magistrate found in favour of Mr Behan and ordered that Mr Clarke pay him $5,559.70 for the claim, and $90 filing fee. (The learned Magistrate also ordered, effectively with Mr Behan’s consent, that he return the engine to Mr Clarke.) [4] Mr Clarke now seeks leave to appeal that decision. Leave to appeal is necessary: QCAT Act, section 142(3)(a)(i). By direction of the Appeal Tribunal the application for leave (and the appeal, if leave is granted) are to be heard and determined on the papers, with both parties filing submissions according to a timetable. Each has done so. [5] The application is brought on two grounds: that the Magistrate’s decision was wrong, and was the product of her (incorrectly) placing too much weight on certain pieces of evidence; or, that she made findings of fact for which there was no supporting evidence. [6] The Magistrate heard evidence from Mr Behan, Mr Clarke and a Mr Savage, a mechanic who had inspected the engine and gave evidence on Mr Behan’s behalf that major problems with it were caused by defective workmanship in Mr Clarke’s workshop. [7] Although the learned Magistrate’s reasons for her decision are short, it is clear that she concluded that the weight of evidence fairly pointed to findings which were in line with Mr Savage’s evidence. [8] Other matters are also relevant to the attack Mr Clarke now makes, through his solicitors, upon the decision. First, the matter proceeded over two days and, at the conclusion of the first, the Magistrate made it very clear to both parties that it would assist her, and could certainly aid each of them, if they called independent evidence to support their respective cases. Mr Behan did so at the resumed hearing, but Mr Clarke did not. [9] Secondly, the transcript shows that the decision made by the learned Magistrate was reasonably open to her, particularly in the face of Mr Savage’s evidence (during which he was cross-examined by Mr Clarke – who had therefore, the necessary opportunity to challenge that evidence and put his own case). [10] Findings of fact by the Tribunal will not usually be disturbed on appeal if the facts inferred by the Presiding Member, upon which the finding is based, are capable of supporting her conclusions: Fox v Percy [2003] 214 CLR 118 at 125-6. -- 2 of 3 -- 3 [11] An appeal tribunal may nevertheless interfere if the conclusion at first instance is contrary to compelling inferences in the case.1 In considering that question, however, the Appeal Tribunal is only looking to see whether there is any error in the primary decision, and it will not attempt to decide where the truth lay as between the competing versions given by the parties.2 [12] Despite the best efforts of Mr Clarke’s legal advisors, no error of that kind is apparent here. There was evidence from Mr Savage which supported the inferential finding, by the learned Magistrate, that it was something that occurred in Mr Clarke’s workshop which was primarily causative of the engine damage and, on any view of the evidence and the weight of the evidence, that finding was reasonably open. [13] As to the first ground of appeal (that the decision was factually wrong or the product of the Magistrate placing too much weight on a particular piece of evidence) there was, again, evidence from Mr Savage and Mr Clarke which supported the findings. [14] This is not a case in which the decision in the Tribunal is ‘glaringly improbable’3 or ‘contrary to compelling inferences’ in the case4. [15] Rather, the transcript shows that the weight of evidence supported the learned Magistrate’s findings which were, on any view, fairly and reasonably open to her. Indeed, it is appropriate to record that any other finding would have been surprising and, it could have been strongly argued, against the weight of the evidence. [16] For these reasons the application for leave to appeal must be refused. 1 Fox v Percy, at 128. 2 Fox v Percy, at 129. 3 Brunskill v Sovereign Marine & General Insurance Co Pty Ltd (1985) 59 ALJR 842 at 844. 4 Chambers v Jobling (1986) 7 NSWLR 1 at 10. -- 3 of 3 --