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Hawkins v East QCATA 145
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Hawkins v East  QCATA 145
19 September 2019
On the papers
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – CONTROL OVER PROCEEDINGS – OTHER CASES – where allegation of denial of procedural fairness – where Tribunal has mandate to deal with matters quickly – where appellant was given opportunity to present case and respond – where respondent was given procedural fairness within context of Tribunal’s minor civil disputes jurisdiction
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – IN GENERAL – where applicant applied for leave to appeal – whether evidence capable of supporting findings – where findings open on evidence – whether leave to appeal should be granted
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 28, s 143
Bradlyn Nominees Pty Ltd v Saikovski  QCATA 39
Cachia v Grech  NSWCA 232
Chambers v Jobling (1986) 7 NSWLR 1
Creek v Raine & Horne Mossman  QCATA 226
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Glenwood Properties Pty Ltd v Delmoss Pty Ltd  2 Qd R 388
Kioa v West (1985) 159 CLR 550
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd  2 Qd R 577
Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611
Piric & Anor v Claudia Tillier Holdings Pty Ltd  QCATA 152
QUYD Pty Ltd v Marvass Pty Ltd  1 Qd R 41
Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe  QCATA 212
Selvanayagam v University of the West Indies  1 All ER 824
Slater v Wilkes  QCATA 12
REASONS FOR DECISION
What is this appeal about?
- On 25 September 2018, the Tribunal ordered Dean Hawkins pay $6,230.00 to Alan East for breach of an Agreement to provide two cars in exchange for a car that Mr East had previously purchased from Mr Hawkins. The exchange was because Mr East had not been satisfied with the earlier car.
- Mr Hawkins wants to appeal the Tribunal’s decision.
- Because this is an appeal from a minor civil dispute, leave is required.
- In determining whether to grant leave, the Tribunal will consider established principles including:
- (a)whether there is a reasonably arguable case of error in the primary decision;
- (b)whether there is a reasonable prospect that the appellant will obtain substantive relief;
- (c)whether leave is needed to correct a substantial injustice caused by some error; and
- (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.
- I will address the grounds of appeal below.
Did the Tribunal give Mr Hawkins procedural fairness?
- Mr Hawkins submitted that ‘the hearing was one sided at no time did was I offered to reply to the Finding Points used by the Judge to come to his decision’ and ‘the Applicant giving the registry false and misleading information suing me for $13,438 but stands up at the hearing and admits he’s only really $3,000 out of pocket’.
- The Tribunal must observe procedural fairness. However, this 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. The requirements of procedural fairness must be adjusted to the statutory framework governing the Tribunal.
- 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, is at its most acute in the busy and demanding minor civil disputes jurisdiction, where thousands of applications are processed and determined each year. Within this context, the Tribunal is not bound by the rules of evidence, and may inform itself in any way it considers appropriate.
- The minor civil disputes jurisdiction requires the Tribunal to deal with matters fairly, quickly and economically. Although the Tribunal awarded less than the amount claimed, the award was part of the original claim and referred to during the original hearing. Mr Hawkins was aware of the claim to which he was required to respond.
- The Tribunal also gave Mr Hawkins an opportunity to present respond to the claim at the original hearing. The Tribunal asked relevant questions of Mr Hawkins and gave him an opportunity to present his case and respond, referring to supporting material where appropriate. By doing so, the Tribunal focused on the issues and used time and resources efficiently, consistent with the Tribunal’s mandate. Extending the requirements of procedural fairness beyond this is inconsistent with the QCAT Act and would make the minor civil disputes jurisdiction cumbersome.
- This ground of appeal is dismissed.
Was the evidence capable of supporting the Tribunal’s findings?
- Mr Hawkins submitted that an error was made by ‘the Judge awarding more money than the Applicant thinks he’s out of pocket’ and that ‘the Applicant has been making and giving false information – I have three written statements from the Applicant. Each of these three statements read differently from each other.’
- A decision cannot properly be called erroneous, simply because the Tribunal preferred one conclusion over another. Having heard the evidence of both parties, the Tribunal was in the best position to assess credibility. It is not an error to prefer one version of events to another. The Appeal Tribunal is not satisfied that the file note has sufficient evidential weight to overturn the Tribunal’s original finding.
- Mr Hawkins did not identify or provide the Appeal Tribunal with the three written statements to which he refers. Mr East made two references to $3,000 during the original hearing. He also referred to other amounts that ultimately formed the basis for the Tribunal’s decision. These amounts were supported by documentary evidence filed with the original Application and sworn oral evidence of Bill Thomas, mechanic.
- The Appeal Tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions. An appellate tribunal may only interfere if the conclusion is ‘contrary to compelling inferences’ in the case. It is implicit that the Tribunal accepted the sworn evidence of Mr East and Mr Thomas and supporting documents when making its findings. The Tribunal was entitled to weigh the evidence as it did. The Tribunal’s finding that $6,230 was payable by Mr Hawkins to Mr East was open on the evidence.
- Nothing in the material or the transcript persuades the Appeal Tribunal that the Tribunal’s finding was not open.
- The Tribunal’s decision was therefore appropriate and the Appeal Tribunal can find no reason to come to a different view.
- This ground of appeal is dismissed.
Should the Appeal Tribunal grant leave to appeal?
- Leave will not be granted where a party simply desires to re-argue the case on existing or additional evidence. 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. An application for leave to appeal is not, and should not be an attempt to reargue a party’s case at the initial hearing.
- Having read the transcript and considered the evidence, the Appeal Tribunal finds nothing to indicate that the Tribunal acted on a wrong principle, or made mistakes of fact affecting its decision, or was influenced by irrelevant matters. The evidence was capable of supporting the Tribunal’s conclusions.
- 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 are the appropriate Orders?
- Leave to appeal is refused.
- On 23 November 2018, the Appeal Tribunal granted a stay of the original decision until the appeal is finally determined by the Appeal Tribunal or withdrawn.
- The Appeal Tribunal has finally determined the appeal. The stay is lifted.
Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 143(3).
QUYD Pty Ltd v Marvass Pty Ltd  1 Qd R 41.
 Cachia v Grech  NSWCA 232, 2.
 QUYD Pty Ltd v Marvass Pty Ltd  1 Qd R 41.
 Glenwood Properties Pty Ltd v Delmoss Pty Ltd  2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd  2 Qd R 577, 577, 580.
 QCAT Act, s 28(3)(a).
 Kioa v West (1985) 159 CLR 550, 584-585.
 Creek v Raine & Horne Mossman  QCATA 226,  (Wilson J).
 QCAT Act, s 4(c).
 Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe  QCATA 212,  (Wilson J).
 QCAT Act, s 28(3)(b).
 Ibid s 28(3)(c).
 Ibid, s 3, s 4.
 Transcript page 1-6, lines 22 to 46; page 1-7, lines 1 to 24; page 1-26, lines 20 to 47; page 1-27, lines 1 to 47; page 1-28, lines 1 to 14 and lines 33 to 47; page 1-29, lines 1 to 47; page 1-30, lines 1 to 47; page 1-31 lines 1 to 42; page 1-32, lines 9 to 13; page 1-33, lines 15, 41 and 45; page 1-34, lines 20 to 46; page 1-35, lines 1, 14 to 17, 33 and 41 to 43.
 Bradlyn Nominees Pty Ltd v Saikovski  QCATA 39, .
Slater v Wilkes  QCATA 12, , citing Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611.
 Slater v Wilkes  QCATA 12, .
 Gatton Auto Invoice dated 6 June 2017; Bill Thomas Automotive Invoice undated.
 Dearman v Dearman (1908) 7 CLR 549, 561; Fox v Percy (2003) 214 CLR 118, 125-126.
 Chambers v Jobling (1986) 7 NSWLR 1, 10.
Selvanayagam v University of the West Indies  1 All ER 824, 826.
 Piric & Anor v Claudia Tillier Holdings Pty Ltd  QCATA 152,  (Wilson J).
 Bradlyn Nominees Pty Ltd v Saikovski  QCATA 39.
- Published Case Name:
Hawkins v East
- Shortened Case Name:
Hawkins v East
 QCATA 145
19 Sep 2019