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McNamara v Bradford QCATA 5
McNamara v Bradford  QCATA 5
On the papers
Senior Member Stilgoe OAM
17 January 2017
APPEAL – LEAVE TO APPEAL – interference with finding of fact – functions of appellate tribunal – where findings based on credibility of witnesses – necessity for finding to be clearly wrong – where applicant claimed on invoice – where respondent disputed time spent – where tribunal preferred evidence of respondent – whether grounds for leave to appeal
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
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
- Thomas McNamara agreed to a ‘do and charge’ plumbing job for Shaun Bradford. When Mr McNamara presented the invoice, Mr Bradford thought it was too high. After correspondence to and fro, Mr McNamara filed a claim for $1357.96. The tribunal ordered Mr Bradford pay Mr McNamara $750.15.
- Mr McNamara 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.
- Mr McNamara says the tribunal erred in a finding of fact. He says that the tribunal could not have come to the conclusion that he spent only 6 hours on the job, rather than the 11 hours he claimed.
- 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. 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.
- I have read the transcript and considered the material. The tribunal had conflicting evidence from Mr McNamara and Mr Bradford. Both gave evidence under oath. Mr Bradford referred to diary entries to support his claim that Mr McNamara did not spend 11 hours doing the job. The tribunal preferred Mr Bradford’s evidence as being ‘more reliable’. The evidence can support that finding and I can find no compelling reason to come to a contrary view.
- 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.
 Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
 Transcript page 1-16, line 10.
- Published Case Name:
Thomas McNamara v Shaun Bradford
- Shortened Case Name:
McNamara v Bradford
 QCATA 5
Senior Member Stilgoe
17 Jan 2017