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Fowler v Sakuma[2019] QCATA 147

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Fowler v Sakuma [2019] QCATA 147

PARTIES:

MARTIN JOEL FOWLER

(appellant)

v

MARJORIE SAKUMA

(respondent)

APPLICATION NO/S:

APL333-18

ORIGINATING

APPLICATION NO/S:

MCDO 74/18

MATTER TYPE:

Appeals

DELIVERED ON:

21 August 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDERS:

Leave to appeal refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – IN GENERAL – where applicant applied for leave to appeal – where applicant sought to introduce evidence not adduced at first instance – whether evidence should be admitted – whether evidence capable of supporting findings – whether leave to appeal should be granted 

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 143

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Balfour v Balfour [1919] 2 KB 571

Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39

Cachia v Grech [2009] NSWCA 232

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404

Creek v Raine & Horne Mossman [2011] QCATA 226

Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388

McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577

Olindaridge Pty Ltd & Anor v. Tracey & Anor [2014] QCATA 207

Piric & Anor v Claudia Tillier Holdings Pty Ltd [2012] QCATA 152

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

APPEARANCES:

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

What is this appeal about?

  1. [1]
    An Adjudicator dismissed Martin Fowler’s claim that he lent $15,880.00 to Marjorie Sakuma because of the presumption against the intention to create legal relations in a domestic relationship.[1]
  2. [2]
    Mr Fowler wants to appeal that decision. He says that the statutory declaration he signed stating that the money was a gift is a ‘sham document’[2] and that Ms Sakuma provided ‘false and misleading’ documents that were disproved by an AHPRA investigation.[3] He says that his claim for interest in his original application, prior loan history between he and Ms Sakuma, offers to settle from her legal representatives, and text messages between he and Ms Sakuma is evidence of an intention to create legal relations.
  3. [3]
    Because this is an appeal from a minor civil dispute, leave is required.[4]
  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;[5]
    2. (b)
      whether there is a reasonable prospect that the appellant will obtain substantive relief;[6]
    3. (c)
      whether leave is needed to correct a substantial injustice caused by some error;[7] 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.[8]

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

  1. [5]
    It was not disputed that Mr Fowler and Ms Sakuma were in a relationship at the time of the transaction.[9] Parties in domestic relationships are presumed not to intend to create legal relations.[10] None of the material provided by Mr Fowler is sufficient to rebut the presumption.
  2. [6]
    The AHPRA letter[11] is fresh evidence. 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:[12]
    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?
  3. [7]
    Mr Fowler submitted that the AHPRA letter shows Ms Sakuma’s evidence was ‘false and misleading’. It does not.
  4. [8]
    The AHPRA letter relevantly states:
  • Mr Fowler may be a vexatious notifier
  • Ms Sakuma’s performance as a registered nurse was not inappropriate
  • No further action is to be taken against Ms Sakuma
  1. [9]
    Clearly, the letter does not assist Mr Fowler’s case and would not have an important impact on the result. Mr Fowler provided no other evidence to support his bald assertion of the veracity of Ms Sakuma’s evidence.
  2. [10]
    Mr Fowler provided reports from a psychiatrist and psychologist to the effect that he was not in a fit state to sign the statutory declaration.[13] Their reports appear to be based much on what Mr Fowler told them and are dated some 18 months after the transaction. Moreover, Ms Sakuma gave evidence questioning the credibility of this evidence.[14] The Tribunal must observe procedural fairness.[15] In circumstances where Ms Sakuma filed material before the hearing questioning the credibility of this evidence and neither expert attended to allow the learned Adjudicator to assess credit, it was open to the learned Adjudicator to not accept their evidence.[16]
  3. [11]
    Mr Fowler did not provide evidence from the witness to the statutory declaration to support his claim it was a ‘sham’. He said this was because Ms Sakuma’s legal representatives refused to provide him with contact details. However, the onus is always upon Mr Fowler to present his case and bring all relevant material and witnesses to the hearing. Mr Fowler had an obligation to act in his own best interests, including conducting reasonable inquiries:

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.[17]

  1. [12]
    Mr Fowler’s claim for interest in his original application is not evidence of a loan because it is not a contemporaneous document at the time of the transaction. Similarly, evidence of a prior arrangement between the parties about the purchase of a car is not referable to this transaction.
  2. [13]
    Neither the offers to settle from Ms Sakuma’s legal representatives nor text messages are sufficient to characterise the transaction as a loan. A text dated 15 January 2016 refers to ‘how much I still owe him’, but this predates the transaction in December 2016.  
  3. [14]
    Mr Fowler and Ms Sakuma were in a relationship at the time of the transaction, raising a presumption against an intention to create legal relations. None of Mr Fowler’s evidence is sufficient to rebut the presumption. The learned Adjudicator’s finding of no intention to create legal relations was open to him.
  4. [15]
    The appeal process is not an opportunity for a party to again present their case.[18] It is the means to correct an error by the Tribunal that decided the proceeding.[19] 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 their decision, or was influenced by irrelevant matters. The evidence was capable of supporting the learned Adjudicator’s conclusions.
  5. [16]
    The learned Adjudicator’s decision was therefore appropriate and I can find no reason to come to a different view.

Should the Appeal Tribunal grant leave to appeal?

  1. [17]
    Leave will not be granted where a party simply desires to re-argue the case on existing or additional evidence.[20] 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.[21] An application for leave to appeal is not, and should not be an attempt to reargue a party’s case at the initial hearing.[22]
  2. [18]
    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?

  1. [19]
    The appropriate Order is:
    1. Leave to appeal refused.

Footnotes

[1] Balfour v Balfour [1919] 2 KB 571.

[2] Statutory Declaration of Martin Joel Fowler sworn 15 December 2016.

[3] Letter Australian Health Practitioner Regulation Agency to Martin Fowler dated 24 January 2019.

[4]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 143(3).

[5]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

[6] Cachia v Grech [2009] NSWCA 232, 2.

[7] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

[8] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 577, 580.

[9] Transcript page 1-2, lines 37 to 42; page 1-3, lines 2 to 7 and 44 to 46; page 1-4, lines 1 to 10; Attachment to Application for minor civil dispute filed 6 July 2018, paragraph 1.

[10] Balfour v Balfour [1919] 2 KB 571.

[11]  Letter Australian Health Practitioner Regulation Agency to Martin Fowler dated 24 January 2019.

[12] Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, 408.

[13]  Report of Dr James Wright, Consultant Psychiatrist dated 24 August 2018; Report of Erin Hitzke, Senior Psychologist dated 12 June 2018.

[14]  Response sworn 2 August 2018, paragraph 15.

[15] Queensland Civil and Administrative Tribunal Act 2009 (Qld), 28(3)(a).

[16] Olindaridge Pty Ltd & Anor v Tracey & Anor [2014] QCATA 207, [40]-[43].

[17] Creek v Raine & Horne Mossman [2011] QCATA 226, [13], citing with approval Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 217 (citations omitted).

[18] Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39, [9].

[19]  Ibid.

[20]Piric & Anor v Claudia Tillier Holdings Pty Ltd [2012] QCATA 152, [12] (Wilson J).

[21]  Ibid.

[22] Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39.

Close

Editorial Notes

  • Published Case Name:

    Fowler v Sakuma

  • Shortened Case Name:

    Fowler v Sakuma

  • MNC:

    [2019] QCATA 147

  • Court:

    QCATA

  • Judge(s):

    Member Hughes

  • Date:

    21 Aug 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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