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Tomlin v Davis

[2020] QCATA 93



Tomlin v Davis [2020] QCATA 93
















22 June 2020


On the papers




Member Hughes


  1. Leave to appeal refused.
  2. The application to strike out filed on 13 November 2019 is dismissed.


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 – where new evidence not sufficient to overturn original findings – where findings still open on evidence – whether leave to appeal should be granted 

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – interference with findings of Tribunal below – functions of appellate Tribunal – where findings open on evidence – where no reasonably arguable case of Tribunal in error – where no reasonable prospect of substantive relief on appeal


Competition and Consumer Act 2010 (Cth), Schedule 1 (Australian Consumer Law)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4

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

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

King v Hoare [1844] EngR 1042

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

Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611

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

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

Slater v Wilkes [2012] QCATA 12

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247









This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).


  1. [1]
    Stephanie Tomlin is a licensed motor dealer. She sold a 2010 Holden Captiva to Tracey Davis for $6,990.00. Within a month, Ms Davis discovered mechanical problems. She sought a refund. Ms Tomlin refused, instead offering to contribute to the cost of repairs. Because the parties were unable to resolve their dispute, the matter proceeded to a hearing.
  2. [2]
    At the hearing, an Adjudicator ordered that Ms Tomlin pay to Ms Davis the sum of $5,900.00 and that Ms Davis return the car. Ms Tomlin has applied for leave to appeal that decision.
  3. [3]
    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;[1]
    2. (b)
      whether there is a reasonable prospect that the appellant will obtain substantive relief;[2]
    3. (c)
      whether leave is needed to correct a substantial injustice caused by some error;[3] 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.[4]
  4. [4]
    Ms Tomlin’s grounds of appeal asserted that the learned Adjudicator’s decision was erroneous because it did not address certain “factual points”. She also sought to rely upon a Technical Data Sheet of a sealant product[5] “for repairing cracks in oil pans (sump)” as fresh evidence. Apart from this, Ms Tomlin sought to reargue her case by referring to the same evidence considered by the learned Adjudicator.
  5. [5]
    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:[6]
    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?
  6. [6]
    Ms Tomlin said that she did not provide the fresh evidence at the hearing “as this is apparently repaired and therefore did not require a reason to justify explaining.” However, the onus is always upon Ms Tomlin to present her case and bring all relevant material and witnesses to the hearing.
  7. [7]
    Ms Tomlin had an obligation to act in her own best interests, including providing all evidence to support her defences that the issues with the car were not major or that Ms Davis had not acted reasonably:

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.[7]

  1. [8]
    This alone is sufficient to not allow the fresh evidence. However, even if the fresh evidence were admitted into evidence, it has little evidential weight and is unlikely to affect the outcome of the case. The sealant product information is general and not attached to a report or sworn statement from an independent expert witness about the application of the product to the particular sump.  Moreover, the fresh evidence does not prove that the problem with the sump was not a major defect or that it could be remedied. The evidence at the hearing was that the sump already had a sealant applied and that this was not sufficient to address the problem.   
  2. [9]
    At most, the sealant product information might allow the drawing of a possible alternative inference of the extent of the defect with the sump. But it does not prove it. 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.[8]
  3. [10]
    Ms Tomlin submitted that the learned Adjudicator did not address “factual points and written evidence”. However, this is not sufficient to demonstrate an appellable error. If the learned Adjudicator’s reasons do not specifically refer to an item of evidence, it does not mean it was overlooked. Rather, it is reasonable to infer that the learned Adjudicator did not consider it relevant or outweighed the evidence upon which findings were made. It is not an error for the learned Adjudicator to not explain away each and every item of evidence not considered relevant or of sufficient weight.[9]
  4. [11]
    This is particularly so in in the busy and demanding minor civil disputes jurisdiction, where thousands of applications are processed and determined each year and 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[10] is at its most acute. It is sufficient that the learned Adjudicator’s reasons set out the evidence she considered relevant and the basis for her findings.[11]
  5. [12]
    To arrive at her decision, the learned Adjudicator was very careful to identify the relevant provisions of schedule 1 of the Competition and Consumer Act 2010 (Cth) (Australian Consumer Law).[12] She correctly cited case law.[13] The learned Adjudicator then made relevant findings that the car was not of an acceptable quality due – in part at least – to engine light issues and the crack in the sump.[14] The learned Adjudicator also made findings that Ms Tomlin was in a better position than Ms Davis to know about these defects, that they constituted a major failure because Ms Davis would not have bought the car had she known the problems she would have so soon after purchase, that Ms David rejected the goods within a reasonable period and that the claim was to be reduced to allow for Ms Davis’s ongoing use of the car and its age.[15]
  6. [13]
    The learned Adjudicator’s findings are unremarkable and were based on supporting evidence including a contemporaneous invoice from Ms Davis’s mechanic that itemises the defects,[16] contemporaneous communications between Ms Tomlin and Ms Davis and oral evidence from both parties.
  7. [14]
    Having considered this material, the learned Adjudicator was in the best position to assess credit and make findings accordingly. Nothing in the material or the transcript persuades the Appeal Tribunal that the learned Adjudicator’s findings were not open to her. The findings were open on the evidence. 
  8. [15]
    The appeal process is not an opportunity for a party to again present their case.[17] It is the means to correct an error by the Tribunal that decided the proceeding.[18] The minor civil disputes jurisdiction requires the Tribunal to deal with matters fairly, quickly and economically.[19] A party who does not provide all their relevant evidence at the hearing cannot expect a different outcome by simply re-arguing their case on appeal.
  9. [16]
    The Tribunal’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]
    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  her decision, or was influenced by irrelevant matters. The evidence was capable of supporting the learned Adjudicator’s conclusions.
  3. [19]
    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.
  4. [20]
    Leave to appeal is refused. Because the refusal of leave finally disposes of the appeal, it extinguishes Ms Davis’s application to strike out the appeal filed on 13 November 2019.[23] The appropriate orders are therefore:
    1. Leave to appeal is refused; and
    2. The application to strike out the appeal filed on 13 November 2019 is dismissed.


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

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

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

[4] 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.

[5]  Permatex Spray Sealant Leak Repair Technical Data Sheet dated February 2019.

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

[7] 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.

[8] Slater v Wilkes [2012] QCATA 12, [6], citing Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611.

[9] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247.

[10] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 4(c) (‘QCAT Act’).

[11] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247.

[12] Transcript, page 1-16, lines 38 to 47; page 1-17, lines 1 to 46; page 1-37, lines 9 to 13, 46 to 47; page 1-38, lines 1 to 14, 21 to 25; page 1-44 lines 21 to 22.

[13] Transcript page 1-42, line 45.

[14] Transcript, page 1-43, lines 25 to 27.

[15] Transcript, page 1-43, lines 28 to 29, 33 to 37; page 1-44, lines 20 to 22, 25 to 27, 36 to 40.

[16] Direct Automotive Tax Invoice dated 9 May 2019.

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

[18] Ibid.

[19] QCAT Act, s 3, s 4.

[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.

[23] King v Hoare [1844] EngR 1042.


Editorial Notes

  • Published Case Name:

    Stephanie Racheal Elizabeth Tomlin v Tracey Davis

  • Shortened Case Name:

    Tomlin v Davis

  • MNC:

    [2020] QCATA 93

  • Court:


  • Judge(s):

    Member Hughes

  • Date:

    22 Jun 2020

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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