Wight v Ali[2023] QCATA 28

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   On 7 September 2021, an adjudicator ordered Mr Wight to pay Mr Ali the sum of $8,000 within 14 days.
2. [2]
   Mr Wight has applied for leave to appeal that decision.
3. [3]
   When the application for leave to appeal was called on for hearing before me, only Mr Wight appeared.  Mr Ali was contacted by telephone, and indicated that he did not wish to participate in the hearing.  Accordingly, the hearing proceeded in Mr Ali’s absence.

The proceedings before the adjudicator

4. [4]
   On 25 August 2020, Mr Ali filed an application for a minor civil dispute.  He claimed repair costs for damage to his vehicle in the amount of $10,419.12.  He claimed that his vehicle was damaged in a collision with Mr Wight’s vehicle, and that Mr Wight was at fault.
5. [5]
   Mr Ali provided quotes for repairs from:

   1. (a)
      Tom Tom Auto Repairs dated 7 March 2019, in the amount of $10,419.12; and
   2. (b)
      Excel Body Works dated 7 March 2019, in the amount of $15,212.42.
6. [6]
   During the original hearing, Mr Ali advised that he proceeded with the quote from Tom Tom Auto Repairs, but did not have a receipt for the amount paid.  Mr Ali further advised that he could not get a receipt as Tom Tom Auto Repairs had closed down.  In response, Mr Wight stated:^[1]

So first I want to say that I spoke to Tom Tom Auto as early as yesterday.  So I can confirm they’re operational.  And I actually inquired about any work that was carried out on the Toyota HiAce …  The person I spoke to seemed to recollect the car, but didn’t think there was any work carried out and could not find work carried out on the system.

7. [7]
   The matter was stood down by the adjudicator to enable Mr Ali to contact Tom Tom Auto Repairs with a view to obtaining a receipt.  Mr Ali subsequently stated:^[2]

I – I called the – the number and the owner said that I’m a new owner and the owner took over this business from January to March 2020.  And he said he’s not going to be able to give me any receipt because he hasn’t received any data from the previous owner. But yeah, that was right.  He bought the business and moved to a new place.

8. [8]
   In response to a question by the adjudicator as to how much he paid, Mr Ali stated:^[3]

Like it was around – around that amount [$10,419.12] so I can’t really – just – just don’t remember exactly what it was.

9. [9]
   The adjudicator’s reasons, as recorded in the transcript of the original hearing, relevantly state:^[4]

I accept the evidence of the applicant that he was fully stationary at the time.  And he was stationary as a result of the vehicles in front of him being stationary.  There was no action that he took that was in breach of the road rules.  For these reasons I find that – that the respondent breached his duty of care in failing to drive with due skill and attention in failing to be able to stop in time.  And I find that the respondent is liable to the applicant for the cost of rectification to his vehicle.

10. [10]
    The adjudicator continued:^[5]

[Y]ou do have two quotes and so it does indicate essentially what those costs would be.  But in fairness I don’t feel that I can order that the respondent pay the quoted amount when there isn’t the evidence that that was what you paid.  So I’m going to apply a discount or not a discount, but I’m going to sort of go that I’m satisfied on the basis of the information, that the cost of $8,000 was likely the cost that you incurred.  I really – I’m not comfortable ordering any more when you don’t have evidence of payment.  But I don’t feel it would be fair to order less because clearly there was a considerable cost to get it repaired.

11. [11]
    Finally, the adjudicator observed in relation to Mr Wight:^[6]

[Y]ou turned up here today and you’ve got no evidence.  You haven’t filed anything. Okay.  There’s no – there’s no evidence here to me today that you requested that you be provided with the vehicle for – to obtain your independent valuation.  There’s no emails.  There’s nothing.  Okay.  If there’s no evidence here today that you went to and provided this to any mechanic or that you made a request for additional photos.  Or that you made a request to go and take photographs of the vehicle yourself and it was refused.  There’s no evidence of that.

Fresh evidence

12. [12]
    Mr Wight has sought to rely on two items of fresh evidence:

    1. (a)
       An annotated version of the quote from Tom Tom Auto Repairs completed by Luke Rotolone of Wolfe Smash Repairs on the basis of two photographs of the vehicle provided by Mr Wight, identifying items that Mr Rotolone considered were unlikely to be damaged in the collision or were over-priced.
    2. (b)
       An email from Dwight of Tom Tom Auto Repairs relevantly stating: “This was only quoted and as per my records, this job was not converted to a repair job.”
13. [13]
    Mr Wight stated that the annotated quote was not available at the time of the original hearing as he did not find Mr Rotolone until after that hearing.  He had approached at least a dozen other repairers prior to the original hearing, who had all refused to provide a quote without physically inspecting the vehicle.
14. [14]
    Mr Wight stated that Dwight from Tom Tom Auto Repairs was only willing to help him over the phone and not in writing prior to the original hearing.  Dwight only became willing to help him with an email when he went to see Dwight in person a few days after that hearing.
15. [15]
    The Appeal Tribunal’s power to allow fresh evidence is not a mechanism by which parties can repair the holes in their original case.^[7]  Ordinarily, for an applicant to be granted leave to adduce fresh evidence, three tests must be satisfied:^[8]

    1. (a)
       that the evidence could not have been obtained with reasonable diligence for use at the original hearing;
    2. (b)
       if it was allowed to be relied upon, that the evidence probably would have an important impact on the result of the case; and
    3. (c)
       that the evidence is credible.
16. [16]
    These requirements were reflected in a direction of the Appeal Tribunal made on 18 November 2021.
17. [17]
    I am not satisfied that Mr Wight was unable to obtain either item of fresh evidence prior to the original hearing, had he used reasonable diligence.  Mr Wight had from 30 October 2020, when the application for a minor civil dispute was served on him, until the original hearing on 7 September 2021, to obtain evidence.  Mr Wight has not provided a satisfactory explanation as to why he could not have applied himself to finding Mr Rotolone during this period of almost a year prior to the original hearing.  Mr Wight also did not provide a satisfactory explanation as to why he could not have attended in person to arrange an email from Dwight prior to the original hearing, in circumstances where he was apparently able to do so a few days after that hearing.
18. [18]
    I am not satisfied that the fresh evidence would have an important impact on the result of the case.  The email from Dwight of Tom Tom Auto Repairs does not go beyond the oral account of the telephone call with the proprietor that Mr Wight gave at the original hearing, which was before the adjudicator.  In relation to the annotations on quote from Mr Rotolone, the adjudicator applied a discount to the quote from Tom Tom Auto Repairs in any event.
19. [19]
    Finally, I note that the existence of issues which may affect the credibility of the fresh evidence.  The annotated quote from Mr Rotolone is based only on two photographs of the vehicle, in circumstances where at least a dozen other repairers had apparently refused to quote without conducting a physical inspection of the vehicle.  The email from Dwight does not address the issue of whether records from the previous owner of Tom Tom Auto Repairs were available to him. 
20. [20]
    In these circumstances, the fresh evidence is not admitted.

Grounds of appeal

21. [21]
    The grounds of appeal set out in the application for leave to appeal may be summarised as follows:

    1. (a)
       The finding of fact that the vehicle was repaired by Tom Tom Auto Repairs was not supported by evidence.
    2. (b)
       The finding of fact that the vehicle had been repaired was not supported by evidence.
    3. (c)
       The finding of fact that the repairs had been paid for was not supported by evidence.
    4. (d)
       There was no evidence corroborating the value of the quote obtained.
22. [22]
    The first three grounds appear to be affected by a misapprehension on the part of Mr Wight that evidence is confined to written evidence.  Mr Ali gave oral evidence as to these issues at the original hearing, which it was reasonably open to the adjudicator to have accepted and which she did accept.  Further, it should be noted that damages are assessed as the diminution in the value of the vehicle, which is usually the cost of repair.^[9]  The diminution in value is immediate when the damage occurs, so it is not necessary to establish that repairs have taken place.^[10]  Accordingly, these grounds are misconceived.
23. [23]
    While the fourth ground is also misconceived, I note that Mr Ali did in fact provide two quotes in relation to the cost of repairs, with the quote from Tom Tom Auto Repairs being the lower quote.  That lower quote was further discounted by the adjudicator.
24. [24]
    In determining whether to grant leave to appeal, the established principles include:^[11]

    1. (a)
       whether there is a reasonably arguable case of error in the primary decision;
    2. (b)
       whether there is a reasonable prospect that the appellant will obtain substantive relief;
    3. (c)
       whether leave is needed to correct a substantial injustice caused by some error; 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.
25. [25]
    For the reasons set out above, I am not satisfied that Mr Wight has established that there is either a reasonable argument that the adjudicator’s was attended by error and that an appeal is necessary to correct a substantial injustice caused by that error, or that the appeal raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage.
26. [26]
    In these circumstances, leave to appeal is refused.