Mepham v Keyz Pty Ltd[2022] QCATA 83

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction 

1. [1]
   On 25 July 2020 at about 9.40 on a rainy Saturday night the applicant (`Mepham’) was driving a vehicle, registered number 883KVX, in the vicinity of Cavill Avenue, Surfers Paradise. He stopped in a line of cars standing at   traffic lights. The car immediately in front of Mepham’s was a Hyundai Tucson, number NMU10 (`the Tucson’). The lights changed, the cars moved off and then, according to Mepham, the Tucson suddenly `propped’. Mepham strenuously maintains that he stopped his vehicle without making any contact with the Tucson.

Collision alleged

2. [2]
   However, the driver of the Tucson alighted from her car complaining that Mepham’s vehicle had collided with the rear of hers. She and Mepham stopped and exchanged their registration and other details.
3. [3]
   The definition of “minor civil dispute” includes “a claim for an amount of not more than the prescribed amount for damage to property caused by, or arising out of the use of, a vehicle”.^[1]
4. [4]
   The vehicle driven by Mepham was hired by him from the respondent company (`Keyz’), which was effectively self-insured. Shortly after the incident Keyz obtained from Mepham a `Hirer Collision or Damage Report’, in which Mepham stated:

I was sitting at lights when they changed green. The vehicle in front proceeded forward, I started moving slowly when the third party misread lights and applied brake heavily/ I believe the noise she heard was her ABS^[2] engaging. There is no damage to my vehicle and damage to third party car seemed to be previous damage.

5. [5]
   It is unfortunate, as the Adjudicator observed, that the driver of the Tucson was not joined as a defendant.^[3] As a result, the tribunal did not have the benefit of hearing her version of the incident. However, she made this accident report:

My niece was driving the vehicle.  I was a passenger.  We were stopped at a red light at Cavill tram station waiting for the vehicles to proceed.  Before the vehicle in front had moved off, the red vehicle behind hit the rear of mine.  We felt the impact and jumped out of the car in the rain to speak – [he] produced his license. ...  He provided his phone details ... As the damage was minor and the traffic was held up in the rain, we did not call the police.^[4]

6. [6]
   Mepham did concede that after the incident there were some marks to be seen on his `bottom bar’. However, he explained that they had an unrelated cause, namely a `steel grid at Caltex Ferry Road car cleaning’.^[5]

$1000 excess paid

7. [7]
   Subsequently repairs were made to the lower rear bumper of the Tucson at a cost of $1222.16.^[6]
8. [8]
   As noted above, the vehicle driven by Mepham was hired from Keyz. It was a term of the hiring agreement that in the event that a successful third party claim against Mepham was paid by the self-insured^[7] Keyz, the former would be liable for an `excess’, namely the first $1,000 of the cost of the third party’s repairs.
9. [9]
   Mepham voluntarily, if not cheerfully, promptly paid that amount to Keyz. Otherwise, he says, he would no longer have had the use of 883KVX to earn income.^[8]

Payment regretted, action unsuccessful

10. [10]
    But some three months later Mepham, still maintaining his freedom from liability, and the occurrence of any collision, decided to retrieve his $1,000 if that were legally possible.^[9] 
11. [11]
    The matter was heard on 25 November 2020. The tribunal rejected Mepham’s version of the incident and dismissed his application. Crucially, the tribunal found it improbable that a driver wrongly accused of causing a collision would produce his licence, exchange other details, and give his telephone number to the complainant.^[10] The evidence also included a statement by the other party, photographs, and an invoice from a repairer showing minor damage to the Tucson’s lower rear bumper and incidental items.^[11]
12. [12]
    The Tribunal dismissed as improbable a suggestion that the Tucson owner may have dishonestly taken the opportunity to secure repairs to damage done on another, unrelated occasion.^[12] Comparative measurements of the position of the Tucson’s bumper bar, taken from a similar vehicle seen by Mepham `in a car yard’, if accurate, were open to Keyz’ comment that different loadings of the Tucson hired by Mepham and the comparative car could well produce slight, but significant differences in the rear bumper heights of those two vehicles.^[13]
13. [13]
    Mepham conceded that there were certain marks on the “bottom bar” of his vehicle but insisted that they were sustained on another, irrelevant occasion.^[14]
14. [14]
    As Mepham framed his action, the onus was upon him to satisfy the tribunal that Keyz was not entitled to retain the $1,000 in contention. That, in turn, required proof that he did not collide, however slightly, with the Tucson.
15. [15]
    The adjudicator, as judge of fact and credit, was not satisfied, on the balance of probabilities, that Mepham achieved those objectives. So Mepham’s claim against Keyz was dismissed.

Leave to appeal?

16. [16]
    He now seeks leave^[15] to appeal against that decision.

17. [17]
    An application for leave to appeal is not an opportunity to re-run the trial or to `second guess’ the findings of the primary tribunal. It is not nearly enough for an applicant to express disappointment, or to cherish a subjective feeling that justice has not been done.<sup>[16]</sup> As the High Court has said, the trial is not a `preliminary skirmish’^[17], after which a disappointed party may reagitate the already decided issues, or others more recently conceived.

18. [18]
    On the contrary, it is a review to see whether it is reasonably arguable that the trial involved any error of law, irrationality, or breach of due process that caused a serious injustice to the applicant for leave.^[18]
19. [19]
    The crux of this case is quintessentially a matter of fact, and there was evidence, particularly (but not exclusively) Mepham’s conduct at the scene, to support that conclusion. Courts of appeal seldom disturb findings of fact and credit made by a trial judge.^[19] Findings of fact will not normally be disturbed if they have rational support in the evidence, even if another reasonable view is available.^[20] Fact-finding is the prerogative of the primary decision maker.^[21] An appeal tribunal is not at liberty to `second guess’ or interfere, even if it would have been inclined to take a different view.^[22] A decision is not appellable merely because a decision-maker prefers one witness to another, or gives less weight to one party’s case than he or she thinks it should receive.

If there is evidence, or if there are available inferences which compete for the judge’s acceptance, no error of law occurs simply because the judge prefers one version of evidence to another or one set of inferences to another. That is his function.^[23]

20. [20]
    An exception may be made if a decision is seen as `glaringly improbable’^[24] but that is not the position here.

Adequacy of reasons

21. [21]
    Mepham complains that insufficient reasons for the subject decision were given. However, the adjudicator pointed on several occasions what he saw as the crucial weakness in Mepham’s case, namely his contemporary conduct at the scene of the incident,^[25] and other reasons were mentioned.^[26]
22. [22]
    It does not matter if the decision lacks the elegance and polish of the best of High Court judgments. This is a minor civil dispute, and no civil case is a quest for ultimate verities.^[27] Probabilities are the guiding light. Courts of high authority have warned against hypercritical nit-picking of minor court judgments^[28], and have expressed sympathy for hard-pressed tribunals.^[29] Not every piece of evidence is important, and not every argument is tenable.^[30] It is plainly unnecessary for a judge to refer to all the evidence; the adequacy of reasons depends on the circumstances of the individual case, the interests at stake, and the constitution of the tribunal.^[31]
23. [23]
    No reasonably appellable ground of appeal has been shown. Accordingly the application for leave must be refused.
24. [24]
    Keyz submits that the leave application was filed out of time. The decision was given on 25 November 2020 and the leave application was lodged on 11 December.  Time allowed for seeking leave is 28 days: QCAT Act s 143(3). There is no substance in this submission, but in view of the foregoing, no more need be said about it.

ORDER

The application for leave to appeal is dismissed.