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Zebdarth Pty Ltd v Schonfeld Consulting QCATA 104
Zebdarth Pty Ltd t/a Alan Willi Family Trust v Schonfeld Consulting  QCATA 104
Zebdarth Pty Ltd t/a Alan Willi Family Trust
On the papers
30 June 2016
MINOR CIVIL DISPUTE – interlocutory application to adduce new evidence – test for adducing new evidence
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 32, 142(3)(a), 147.
Clarke v Japan Machines (Australia) Pty Ltd  1 Qd R 404
Walton v New Lakelands Pty Ltd  QCAT 49
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
- The issue in this interlocutory application is a procedural one about whether evidence not adduced in the original hearing should be received on appeal.
- As the appeal is from a tribunal exercising minor civil dispute jurisdiction, it is proceeding by way of application for leave under s 142(3)(a) QCAT Act. If leave is given, it will be decided under s 147 QCAT Act, because it involves questions of fact.
- There is power to take new evidence in deciding an appeal by way of rehearing in the interests of justice.
- The dispute relates to the preparation of the 2014 tax returns and financial statements. The decision appealed from is an order against the applicants to pay tax agent fees of $3,009. The applicants deny liability because the work was (a) unauthorised and (b) professionally substandard.
- The hearing was conducted on 4 December 2015. The new evidence is a letter (dated 1 March 2016) with attachments from a firm of chartered accountants, which tends to support the applicant’s incompetence head of claim.
- The test for receiving additional evidence on appeal as a matter of discretion requires the applicant to address three key factors, which contemplate whether the evidence:
- could not have been obtained with reasonable diligence for us at the trial;
- 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
- is credible (though it need not be incontrovertible).
- The subject matter of appeal and usefulness of the new evidence in deciding it also bear hearing on the scope of the discretion.
- The new evidence meets the criteria in the above paragraphs, and will be admitted at any rehearing by the appeal tribunal to ensure justice is done, despite the unexplained delay between the decision and the date of the new evidence. However, as it is documentary hearsay and is not self-explanatory, the new evidence will not mean much to the appeal tribunal or carry any real weight unless the author is orally examined, at least, via telephone link, at the hearing proceedings.
Walton v New Lakelands Pty Ltd  QCAT 49; Clarke v Japan Machines (Australia) Pty Ltd  1 Qd R 404, 408.
- Published Case Name:
Zebdarth Pty Ltd t/a Alan Willi Family Trust v Schonfeld Consulting
- Shortened Case Name:
Zebdarth Pty Ltd v Schonfeld Consulting
 QCATA 104
30 Jun 2016