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Keen v Newman QCATA 31
Keen v Newman  QCATA 31
On the papers
Senior Member Stilgoe OAM
9 March 2017
APPEAL AND NEW TRIAL – APPEAL GENERAL PRINCIPLES – INTERFERENCE WITH FINDINGS OF FACT – PROOF AND EVIDENCE – OTHER MATTERS – where loan not supported by documents – where respondent admitted loan but not amount outstanding – where respondent admitted $2,000 outstanding – where tribunal ordered respondent to pay $2,000 – whether grounds for leave to appeal
Australian Broadcasting Commission v Bond (1990) 170 CLR 321
Chambers v Jobling (1986) 7 NSWLR 1
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Pickering v McArthur  QCA 294
Waterford v The Commonwealth (1987) 163 CLR 54
APPEARANCES and REPRESENTATION (if any):
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
- Leona Keen and Phillip and Alison Newman were neighbours. Over time, Ms Keen lent the Newmans money. The Newmans repaid some, but not all of the loan. Neither the loans nor the repayments were documented. Eventually, the neighbours fell out and Ms Keen filed a claim for the return of $12,100. The tribunal ordered the Newmans repay Ms Keen $2,000.
- Ms Keen wants to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. Leave to appeal will usually 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 to the applicant caused by that error.
- Ms Keen’s grounds of appeal are: that she is not satisfied with the outcome; that she spent a lot of time compiling the case and she felt that it was not fully presented or discussed; she did not know that her witness needed to be ‘registered’; and she can prove that the Newmans lied under oath.
Ms Keen was not satisfied with the outcome
- It is not unusual that a party is not satisfied with the outcome even when, as here, Ms Keen was partly successful. That is not enough to justify leave to appeal. Ms Keen must show that the tribunal made an error.
- 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. An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.
- There is no error of law simply in making a wrong finding of fact unless there is no evidence to support that finding. The tribunal had no documentary evidence to support Ms Keen’s loans or the Newmans’ repayments.
- The people who provided statutory declarations, for the most part, simply recited what Ms Keen had told them. Ms Bishop’s statutory declaration proves a distribution to Ms Keen, but nothing else. Ms DeLureto’s statutory declaration relates to a telephone conversation about a loan to the Newmans, which was admitted, but not much else.
- Therefore, the tribunal was left with Ms Keen’s evidence and Mr Newman’s evidence. The tribunal preferred Mr Newman’s evidence. That evidence can support the tribunal’s findings and I can find no compelling reason to come to a contrary view.
Ms Keen spent a lot of time compiling her case and it was not presented or discussed fully
- I can see that Ms Keen put some effort into her case. As I have already mentioned, she obtained statutory declarations that she thought would assist her. Unfortunately, Ms Keen’s effort came at the wrong time. Had she kept records of her loans and the repayments, then the result may have been different.
- I do not agree that Ms Keen had not time to present her case. The hearing lasted for almost an hour. Given that it was a dispute about a debt, with no paperwork and no witnesses, that is a long time. Both Ms Keen and Mr Newman interjected into each other’s case but the tribunal was able to ask each of them specific questions which provided the information necessary for a decision. Ms Keen does not outline what extra information she might have provided to the tribunal had her case been presented, or discussed, more fully.
- The tribunal was not in error. There is no basis for leave to appeal.
Ms Keen did not know her witnesses needed to be ‘registered’
- Witnesses before the tribunal do not need to be ‘registered’. In the interests of procedural fairness, the tribunal does prefer that parties file witness statements, so that the other side is not taken by surprise. Ms Keen did file witness statements.
- Ms Keen had a neighbour available to give evidence at the hearing. The tribunal declined to hear from the witness for good reason:
All she’s going to be able to say is, as far as I can see, is that you told her you lent money. Unless she was actually there and present during the discussion, I can’t see what she can add except that she can tell me that you said that the owed her money – they owed you money.
- The tribunal was not in error.
Ms Keen can prove the Newmans lied under oath
- Ms Keen has not given me any detail about how she can prove the Newmans lied under oath. On a number of occasions, she told the tribunal that Mr Newman was lying and yet the tribunal preferred Mr Newman’s evidence.
- If Ms Keen wants to pursue this matter, she should provide the further evidence in a different context. As submitted to me, Ms Keen’s material does not amount to a valid ground of appeal.
- There is no reasonably arguable case that the tribunal was in error. Leave to appeal should be refused.
 QCAT Act, s 142(3)(a)(i).
 Pickering v McArthur  QCA 294 at .
 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
 Chambers v Jobling (1986) 7 NSWLR 1 at 10.
Waterford v The Commonwealth (1987) 163 CLR 54 at 77; Australian Broadcasting Commission v Bond (1990) 170 CLR 321 at 341.
 Transcript page 1-6, lines 14 – 16.
 Transcript page 1-11, lines 38 – 41.
- Published Case Name:
Leona Keen v Phillip Newman and Alison Newman
- Shortened Case Name:
Keen v Newman
 QCATA 31
Senior Member Stilgoe
09 Mar 2017