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O'Hara v Pacey QCATA 19
O'Hara v Pacey  QCATA 19
31 January 2017
Senior Member Stilgoe OAM
Ex tempore reasons 31 January 2017
APPEAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – whether evidence was not available at hearing below – whether appeal tribunal should accept fresh evidence
APPEAL – LEAVE TO APPEAL – INTERFERENCE WITH FINDINGS OF FACT – WHERE FINDINGS CLEARLY WRONG – where evidence was accepted by tribunal below – where accepted evidence could not have led to decision made below – whether ground of appeal
REASONS FOR DECISION
- Mr O'Hara and Ms Pacey live in the same block of units. In 2014 Mr O'Hara witnessed Ms Pacey running into the back of his car while she was manoeuvring her car in the shared car park area. He filed an application for the cost of repair to the damage to his vehicle in the amount of $175. A Tribunal constituted by two Justices of the Peace refused Mr O'Hara’s claim.
- Mr O'Hara wants to appeal the decision. Because it is an appeal from the decision of the Tribunal in its minor civil disputes jurisdiction, leave is necessary. Leave will normally only be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice caused by that error.
- In his application for leave to appeal Mr O'Hara filed some fresh evidence. I have previously refused that application for fresh evidence, and I will now give the reasons for that. The Appeals Tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Firstly, could the applicant, Mr O'Hara in this case, have obtained the evidence with reasonable diligence for use at the trial. Secondly, if allowed, would the evidence probably have an important impact on the result of the case. And thirdly, is the evidence credible.
- The accident, as I said, occurred in November 2014, and Mr O'Hara filed his application for a claim on the 9th of May 2016. One would have thought that in that time Mr O'Hara, busy as he was with his PhD and other matters, would have had the time to draw his evidence together. He has not satisfactorily explained to me why this evidence wasn’t available at the time, particularly when one of the pieces of evidence is an estimate from the eventual repairer dated the 25th of November 2014. Mr O'Hara submitted to me that it was before the Tribunal below; it was not. It was filed before the Appeal Tribunal.
- The second thing that I have to consider when looking at fresh evidence is will it have an important impact on the result of the case, and in this case it will not. The photograph in the estimate is of the same size and detail as the photograph that was already before the Tribunal, and in relation to the other evidence it is ex post facto evidence. There is an affidavit from a woman who wants to tell the Tribunal about Ms Pacey’s post-hearing driving, and behaviour. That is not relevant to the Tribunal’s hearing when it determined this case. The third, is the evidence credible; yes. But because it fails the previous two tests I am not having regard to the fresh evidence.
- So back to the application for leave to appeal. Mr O'Hara had two central points. Firstly, that the evidence could not support a finding that the accident did not occur. And secondly, that the Tribunal was bamboozled, if you like, by the behaviour of Ms Pacey so that it was unable to make a proper decision. Mr O'Hara submitted to me that the Tribunal failed in its duty not to accept beyond a reasonable doubt that the damage was caused by the respondent, and the damage was categorised by a registered repairer. But the onus of proof in this Tribunal, of course, is not beyond reasonable doubt; it is on the balance of probabilities which is a lower standard.
- But coming to the first point. Findings of fact by a Tribunal will not usually be disturbed on an 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. An Appeal Tribunal may interfere however if the conclusion at first instance is contrary to the compelling inferences in the case.
- Mr O'Hara carefully took me through the transcript, and I am grateful to him for that. I agree with his submission that the evidence cannot support a finding that Ms Pacey did not cause the accident, and the damage. In particular, I refer to page 20 of the transcript at line 20 where Justice of the Peace Snow said that the verbal evidence “stacks up”, and page 26, line 15 where, again, Justice of the Peace Snow concludes that the damage was done, and there was a photo showing that it was done.
- The Tribunal made the decision based on not so much a finding that the accident didn’t occur, but that it wasn’t satisfied on the balance of probabilities that the accident occurred the way Mr O'Hara described it. The only evidence before the Tribunal of any significant weight was Mr O'Hara’s sworn evidence, the email from Mr Dodd from the Touch Up Guys dated the 14th of January 2016 in which he noted that the paint on the two cars was identical, and the invoice from the Touch Up Guys.
- The Tribunal was critical of that evidence because it was dated much later than the date of the incident, and that criticism is fair to an extent. But Ms Pacey’s evidence was so unreliable that it could not have realistically contradicted Mr O'Hara’s evidence.
- I just want to make a few more comments about some of the points that Mr O'Hara made for completeness. It’s true that Ms Pacey didn’t comply with the Tribunal directions, however that doesn’t mean anything to the Appeal Tribunal except that there is non-compliance. I have noted with Mr O'Hara that there have been errors in the transcript, and as I told Mr O'Hara some of those I have corrected, and they will be sent to Auscript for correction.
- Mr O'Hara made the point that the fact that there was no other damage to the car is clear from the photos, and this, I think, is where the Tribunal started to have some problems. Quite frankly, Mr O'Hara, two thumbnails photographs in black and white of damage is not good evidence of any damage at all. The only thing that in my view saves you is the email from the Touch Up Guys. So I am satisfied that not only did the accident occur, but the damage occurred as is stated in those documents.
- One final point Mr O'Hara made was the Justice of the Peace at page 21, line 41, said to Mr O'Hara:
Don’t muck around. We won’t want to do any – you’ve said it.
- I agree with Mr O'Hara that that expression was perhaps infelicitous, and showed the Tribunal’s frustration at the time. It is regrettable, but I don’t think that that in itself would be a ground for leave to appeal.
- So leave to appeal is granted because there was an error by the Tribunal. The difficulty that the Tribunal faced, and it is a difficulty that I also face, is that the tax invoice of the 31st of March 2015 for $175 records:
Clean surface and apply coloured matched paint to a minor number of rock chips, and/or fine scratches.
- It appears that the Tribunal determined that it could not distinguish the amount of repair work required for the rock chips from the amount of repair work required for the fine scratches. As poor as the photos are, they do however show a significant scratch mark on the rear right bumper of the car, and there is another quote from Bignell Panel Repairs Pty Ltd dated the 9th of December 2014 where there is also a quote for the repair and painting of the rear bumper bar. Not surprisingly, the amount quoted by Bignell is around about the same as the quote from the Touch Up Guys, and that quote is much more contemporaneous.
- On balance therefore the Tribunal was entitled to find, and should have found that the full cost of repair was as a result of the motor vehicle accident. Therefore, the first order is leave to appeal granted; second order is appeal allowed. The third order is Eunice Pacey shall pay Michael O'Hara $175 plus an application fee of $23.80 being a total of $198.80 by 22 February 2017.
- Published Case Name:
Michael O'Hara v Eunice Pacey
- Shortened Case Name:
O'Hara v Pacey
 QCATA 19
Senior Member Stilgoe
31 Jan 2017