Felix v Winton[2018] QCATA 84

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

What is this appeal about?

1. [1]
   On 24 August 2017, Tiarne Winton drove a car owned by her and her mother, Jacqueline Madden, into the rear of Adriana Felix’s 2002 Nissan Pulsar. The Pulsar had 220,000km on the odometer. Ms Felix claimed the cost of her repairs. On 17 November 2017, an Adjudicator dismissed the claim against Ms Madden and ordered Ms Winton to pay Ms Felix $350.00.
2. [2]
   Ms Felix wants to appeal that decision.
3. [3]
   Because this is an appeal from a minor civil dispute, leave is required.^[1]
4. [4]
   In determining whether to grant leave, the Tribunal will consider established principles including:

   1. (a)
      whether there is a reasonably arguable case of error in the primary decision;^[2]
   2. (b)
      whether there is a reasonable prospect that the appellant will obtain substantive relief;^[3]
   3. (c)
      whether leave is needed to correct a substantial injustice caused by some error;^[4] and
   4. (d)
      whether there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.^[5]
5. [5]
   I will address the grounds of appeal below.

Did the Tribunal afford Ms Felix natural justice?

6. [6]
   Ms Felix submitted that that the Tribunal did not afford her natural justice because she did not have an opportunity to present evidence to counter Ms Winton’s evidence that was only provided to her at the hearing.
7. [7]
   The Tribunal must observe the rules of natural justice.^[6] However, natural justice is a flexible notion that must be commensurate with the nature and demands of the jurisdiction – it is a matter of construction of a particular statutory power.^[7] The requirements of procedural fairness must be adjusted to the statutory framework governing the Tribunal.^[8]
8. [8]
   The Tribunal’s statutory mandate to conduct proceedings in an informal way that minimises costs to parties and is as quick as is consistent with achieving justice,^[9] is at its most acute in the busy and demanding minor civil disputes jurisdiction, where thousands of applications are processed and determined each year.^[10] Within this context, the Tribunal is not bound by the rules of evidence,^[11] and may inform itself in any way it considers appropriate.^[12]
9. [9]
   The minor civil disputes jurisdiction requires the Tribunal to deal with matters fairly, quickly and economically.^[13] This means that parties may not be aware of all of the material relied upon by their opponent before the hearing.
10. [10]
    The difficulty with Ms Felix’s submission is that as the person making the claim for damage, she must prove her case. The appeal process is not an opportunity for a party to again present their case.^[14] It is the means to correct an error by the Tribunal that decided the proceeding.^[15]
11. [11]
    I have read the transcript. The learned Adjudicator asked relevant questions of both parties and gave them an opportunity to respond, referring to supporting material where appropriate. By doing so, he focused the hearing on the issues to be determined and used time and resources efficiently, consistent with the Tribunal’s mandate. Extending the requirements of natural justice beyond this is inconsistent with the QCAT Act and would make the minor civil disputes jurisdiction cumbersome. 
12. [12]
    The learned Adjudicator afforded Ms Felix natural justice within the context of the Tribunal’s minor civil disputes jurisdiction.
13. [13]
    This ground of appeal is dismissed.

Was the evidence capable of supporting the Tribunal’s findings?

14. [14]
    Ms Felix filed the following evidence with her appeal and supporting submissions that she submitted countered Ms Winton’s evidence:

    1. (a)
       Photograph of Ms Felix’s Pulsar dated 24 August 2017;
    2. (b)
       Two photographs of measurements of Ms Felix’s Pulsar dated 22 November 2017;
    3. (c)
       Photograph of weather conditions and traffic flow undated;
    4. (d)
       Copy of ‘Without Prejudice’ text message from Ms Winton to Ms Felix dated 22 September 2017;
    5. (e)
       Two photographs of Ms Felix’s Pulsar dated 8 August 2017;
    6. (f)
       Photograph of dashboard dated 22 November 2017;
    7. (g)
       Medical certificate dated 23 November 2017;
    8. (h)
       Valuation certificate dated 4 December 2017;
    9. (i)
       Map of accident undated;
    10. (j)
        Diagram entitled ‘Actual damage to cars’ undated; and
    11. (k)
        Photograph of alleged damage undated.
15. [15]
    A threshold issue is whether these documents are fresh evidence. This is because the Appeal 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 fresh evidence must satisfy three tests:^[16]

    1. (a)
       Could the parties have obtained the evidence with reasonable diligence for use at the trial?
    2. (b)
       If allowed, would the evidence probably have an important impact on the result of the case?
    3. (c)
       Is the evidence credible?
16. [16]
    Apart from the documents that post-date the hearing, it is unclear which of them were available at the hearing and would therefore be fresh evidence making them potentially inadmissible. To the extent that these documents are new evidence, Ms Felix did not explain why she did not obtain them earlier, other than that they were prepared to counter Ms Winton’s evidence at the hearing.
17. [17]
    Ms Felix cannot seek to introduce rebuttal evidence after the Tribunal has delivered its findings at a hearing. The onus is always upon Ms Felix to present her case and bring all relevant material with her to the hearing. Ms Felix had an obligation to act in her own best interests:^[17]

The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources,

“… the public as a whole, not merely the parties to the proceedings”.

Finality in litigation is highly desirable, because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties.

18. [18]
    Nevertheless, because it is unclear which of the documents are fresh evidence and to ensure procedural fairness to Ms Felix, the appeal will proceed on the basis of admitting all these documents into evidence.
19. [19]
    Ms Winton admitted liability for the accident. The only issue for the learned Adjudicator was the amount of damage for which Ms Winton was responsible. Central to the learned Adjudicator’s award of $350.00 was his finding that the rear of Ms Felix’s Pulsar was damaged before the accident:^[18]

… the photographs would indicate that the rear of the applicant’s vehicle was damaged prior to the accident. I can’t conclude that all the damage associated with the damage to the rear was caused by the accident in question. There is additionally, in consequence, a difficulty concluding which accident, because I do conclude there was an earlier accident, caused the significant damage to the [indistinct] panel and the other associated costs. If a [indistinct] panel is driven under, and that’s what usually where the costs to replace or adjust lights come in, numerous other things flow.

In all the circumstances, I conclude that the only damage was a partial damage to an existingly (sic) damage bumper bar.

20. [20]
    This is a finding of fact. The Appeal Tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.^[19] An appellate tribunal may only interfere if the conclusion is ‘contrary to compelling inferences’ in the case.^[20]
21. [21]
    The only material that Ms Felix has presented that could possibly relate to whether her car was damaged before the accident were items (e), (j) and (k). Item (e) comprises two photographs purported to have been taken just over two weeks before the accident. Even if taken when claimed, they are not evidence of the condition of the Pulsar immediately before the accident. Item (j) is a hand-drawn mud-map with yellow ink highlighting the vehicles’ bumpers. Despite the document’s heading, it is not evidence of ‘actual damage’. Item (k) cannot be proven to predate the accident. I am not satisfied that these items are sufficient to disturb the learned Adjudicator’s finding of pre-existing damage to the Pulsar.
22. [22]
    Even if I adopt a view most favourable to Ms Felix and accept that items (e), (j) and (k) could perhaps allow a possible alternative inference that her Pulsar was not damaged before the accident, they do not prove this as a fact. Attempting to explain away the learned Adjudicator’s finding with a possible alternative inference does not demonstrate error by the learned Adjudicator. A decision cannot properly be called erroneous, simply because the learned Adjudicator preferred one conclusion to another possible conclusion.^[21] Having heard the evidence of both parties, the learned Adjudicator was in the best position to assess credibility. It is not an error to prefer one version of facts to another.^[22]
23. [23]
    Ms Felix also submitted that because item (d) contains an admission by Ms Winton that she ‘looked away’, the speed at which her vehicle hit Ms Felix’s Pulsar cannot be accurately assessed. However, Ms Winton gave sworn oral evidence that she was ‘only going at a very slow pace of about 10 kilometres per hour’.^[23] Ms Felix did not refute this at the hearing. The learned Adjudicator was therefore entitled to accept Ms Winton’s unrefuted sworn oral evidence of speed and her ‘without prejudice’ admission is not sufficient to disturb that finding. Even if Ms Winton was looking away, this does not mean she was unable to estimate her speed based on her other sensory perceptions.
24. [24]
    Similarly, the Appeal Tribunal is not satisfied that any of the other items of evidence attached to Ms Felix’s appeal and supporting submissions are sufficient to overturn the learned Adjudicator’s finding. None of them predates the accident and therefore cannot possibly be evidence of damage to Ms Felix’s Pulsar before the accident. They are not sufficient to disturb the learned Adjudicator’s finding about the amount of damage.  
25. [25]
    In support of his award of $350.00, the learned Adjudicator explicitly referred to repair quotations and photographs before him. It is implicit that the learned Adjudicator also preferred Ms Winton’s oral evidence and her corroborative photographs about the condition of Ms Felix’s Pulsar when the accident occurred. The learned Adjudicator referred to the evidence to support his ultimate finding, which he was entitled to weigh accordingly.^[24]
26. [26]
    It is not an error for the Tribunal to not explain away each and every item of evidence not considered relevant or of sufficient weight.^[25] It is sufficient that the Tribunal’s reasons set out the evidence it considered relevant and the basis for its findings.^[26] The Tribunal’s finding that damages were to be assessed based on pre-existing damage to Ms Felix’s Pulsar was open on the evidence.
27. [27]
    The Pulsar is an older car with significant mileage. Ms Felix’s own valuation evidence is that it is worth $1,750 to $3,400.^[27] The learned Adjudicator’s assessment of damages reflects the damage to the car as a proportion of its value having regard to its age, use and condition before the accident. Nothing in the material or the transcript persuades the Appeal Tribunal that this finding was not open to the learned Adjudicator.
28. [28]
    The learned Adjudicator’s decision was therefore appropriate and I can find no reason to come to a different view.
29. [29]
    This ground of appeal is dismissed.

Should the Appeal Tribunal grant leave to appeal?

30. [30]
    Leave will not be granted where a party simply desires to re-argue the case on existing or additional evidence.^[28] A clear purpose of the requirement for leave, before a party has the right to appeal, is to prevent any attempt to simply conduct a retrial on the merits of the case.^[29] An application for leave to appeal is not, and should not be an attempt to reargue a party’s case at the initial hearing.^[30]
31. [31]
    Having read the transcript and considered the evidence, I find nothing to indicate that the learned Adjudicator acted on a wrong principle, or made mistakes of fact affecting his decision, or was influenced by irrelevant matters. The evidence was capable of supporting the learned Adjudicator’s conclusions.
32. [32]
    There is no question of general importance for the Appeal Tribunal to determine. There is no reasonably arguable case that the Tribunal was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.

What is the appropriate Order?

33. [33]
    The appropriate Order is that leave to appeal is refused.