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- Unreported Judgment
Walden v Li QCATA 126
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Walden v Li  QCATA 126
ROBERT JOHN WALDEN
31 May 2019
On the papers
Leave to appeal refused.
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where the parties involved in a motor vehicle collision – where the appellant had been convicted in the Magistrates Court of traffic offences – where the appellant has filed an appeal against the Magistrates Court convictions which had not been heard when the civil proceedings in the Tribunal occurred – where the Tribunal found against the appellant – where the criminal appeal was extant to the knowledge of the Adjudicator – whether the Adjudicator relied on the conviction in the Magistrates Court – whether, if the Adjudicator did rely on the conviction, that was an error of law – where no reasons given for a particular ground of appeal
Evidence Act 1977 (Qld), s 79
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 143(2)
Alexandria v Thiele  QCATA 174
Fox v Percy (2003) 214 CLR 118
Pickering v McArthur  QCA 294
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
- The respondent was driving his Volkswagen sedan south on the Gateway Motorway near the on-ramp from the Port of Brisbane Motorway in the second from the inside lane when he was struck by the applicant’s prime mover truck. The Gateway motorway was a 4 lane carriageway at that point. The applicant was towing a trailer and was changing lanes from the inside lane to the lane adjacent at the time.
- The respondent’s vehicle was dragged along by the respondent’s truck for some distance and then forced to the left off the carriageway where it crashed, sustaining significant damage. The appellant did not stop and his vehicle did not sustain any significant damage.
- The respondent claimed damages to his sedan from the appellant in the Tribunal. An award of $17,938.36 was made in his favour plus he was awarded his filing fee of $326.80.
- The appellant seeks leave to appeal that decision.
- Given this is an appeal from a decision made in the Tribunal’s Minor Civil Dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.
- Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected. There may be other relevant considerations, but these are primary.
- The appellant was charged by police with an offence of failing to give way when changing lanes on a multi-lane road. By the time the matter went for hearing an additional charge of failing to stop at a road incident had been added.
- The appellant was convicted in the Magistrates Court at Wynnum on 27 July 2018 and fined. He filed an appeal against the conviction and sentence which was to be heard on 22 March 2019. The civil matter came on for hearing before the Tribunal on
14 August 2018.
- The appeal against conviction and sentence date has now passed but there is no material before the appeal Tribunal in respect of outcome of the criminal appeal.
- In the applicant’s application for leave to appeal there are two grounds noted. First that the learned Adjudicator erred in relying on a decision of the Magistrates Court against the appellant as proof of the appellants liability in circumstances where that Magistrates Court decision was under appeal. Secondly, that the learned Adjudicator erred in finding that the appellant was liable for the respondents loss.
- The appellant complains that the learned Adjudicator was aware of the intention to appeal the conviction but despite this the learned Adjudicator relied on the conviction in the Magistrates Court as evidence of his liability for the collision.
- This contention is flawed in a number of respects.
- By s 79 of the Evidence Act 1977 (Qld):
79 Convictions as evidence in civil proceedings
- In this section—
civil proceeding does not include an action for defamation.
convicted means a finding of guilt for an offence, on a plea of guilty or otherwise, and whether or not a conviction was recorded.
- In any civil proceeding the fact that a person has been convicted by a court of an offence is admissible in evidence for the purpose of proving, where to do so is relevant to any issue in that proceeding, that the person committed that offence.
- In any civil proceeding in which by virtue of this section a person is proved to have been convicted by a court of an offence the person shall, unless the contrary is proved, be taken to have committed the acts and to have possessed the state of mind (if any) which at law constitute that offence.
- This section applies—
- whether or not a person was convicted upon a plea of guilty; and
- whether or not the person convicted is a party to the civil proceeding.
- The learned Adjudicator was entitled to rely upon the conviction in the Magistrates Court as evidence of the appellant’s culpability for the accident to the extent liability turned on the appellant’s negligent changing of lanes, which it did. The conviction concerned the same motor vehicle accident with which the civil action before the tribunal was concerned.
- That the appellant filed an appeal against his conviction and sentence did not detract from the entitlement of the learned Adjudicator to rely upon the conviction which was current as at date of hearing of the civil proceedings before the Tribunal. There is nothing in the wording of s 79 that suggests it changes the statutory evidential presumption available to the respondent consequent on the conviction. Neither when the matter was before the learned Adjudicator, nor now in this application for leave to appeal, is there any evidence that the conviction was stayed pending hearing of the appeal to the District Court.
- But, the contention on the part of the appellant would fail in any case because it is clear from perusal of the transcript that the learned Adjudicator did not rely solely or significantly on the conviction but rather gave both parties the opportunity to give evidence about the circumstances of the accident and he based his decision on the evidence before him.
- Though the learned Adjudicator made mention of the conviction in the Magistrates Court he was in fact persuaded that the appellant was responsible for the accident because of the material in the police report such as witness statements and Mr Li’s evidence.
- Even if the appellant had succeeded in overturning his conviction, there is a different onus of proof applicable in civil as opposed to criminal proceedings. In criminal proceedings the prosecution is required to prove its case beyond all reasonable doubt. In civil proceedings a lesser standard is sufficient, that of proof to the satisfaction of the Tribunal or court on the balance of probabilities. Accordingly, even if the appellant was found not guilty in the criminal appeal, this would not mean the appellant could not be liable in the civil proceedings.
- The learned Adjudicator allowed the appellant the opportunity of explaining what happened in the accident and then that version of events was put to Mr Li, who rejected the version. Mr Li said he had changed lanes from lane 2 to lane 3 (of the 4 lane carriageway) and travelled in lane 3 for approximately 10 to 30 seconds before he was struck by the appellant’s truck. The learned Adjudicator said he accepted Mr Li’s evidence about that. It was not unreasonable for him to conclude so.
- In giving his reasons for decision the learned Adjudicator mentioned the conviction in the Magistrates Court and that the magistrate did not believe the appellant’s version of events and that the respondent was convicted and fined. He noted the conviction and fine was the subject of an appeal.
- But the real basis upon which the learned Adjudicator found the appellant was responsible for the accident was his preference for Mr Li’s evidence over that of
Mr Walden’s. He said:
I find that, consistently with the alleged offences and conviction, though subject to an appeal, it was Mr Walden, not Mr Li, who caused the collision. I am not satisfied that Mr Li was contributorily negligent in the sense of speeding up, as Mr Walden suggested, or failing to take evasive action or otherwise manage his vehicle in such a manner as to avoid the collision. I think the more likely scenario is that at the time of changing from lanes 4 to 3, Mr Walden had missed seeing Mr Li’s vehicle. I accept Mr Li’s evidence that he was in lane 3, to which he had changed from lane 2, for about 10 to 30 seconds, that is, the whole of his car body, as he said, was in that lane before the point of impact. I, therefore, accept that the claim does not fall to be apportioned or discounted against Mr Li by any percentage.
- There is no prospect of success for this ground of appeal.
The learned Adjudicator erred
- The second proposed ground of appeal is simply that the learned Adjudicator erred in finding the appellant was liable for the respondent’s loss.
- This is not a ground of appeal. There are no particulars given for this ground of appeal.
- By s 143(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld):
The application or appeal must—
- be in a form substantially complying with the rules; and
- state the reasons for the application or appeal; and
- be accompanied by the prescribed fee (if any).
- An appellant has an obligation to state the reasons for an application for leave to appeal. It requires more than simply saying the decision-maker was wrong because the decision was given against the party. This broad-brush complaint raises no intelligible ground of appeal for consideration.
- As stated in Alexandria v Thiele what has to be shown is that the learned Adjudicator made a mistake in his decision. It must be shown that the decision was tainted by legal error or that there has been a finding of fact or about credibility which was not supported on the evidence, although findings as to credit, that is assessing the relative weight of competing evidence, are seldom disturbed on appeal.
- The learned Adjudicator’s decision was not obviously tainted in any way by any of the above potentially vitiating elements. Indeed, given the very busy and demanding jurisdiction of the minor civil dispute list, the conduct of the proceeding and the reasons given by the learned Adjudicator were exemplary. There are no prospects of success of an appeal. The application for leave to appeal is refused.
- Published Case Name:
Walden v Li
- Shortened Case Name:
Walden v Li
 QCATA 126
31 May 2019