Ball v McKernan
[2013] QCATA 80
•15 March 2013
| CITATION: | Ball v McKernan [2013] QCATA 80 |
| PARTIES: | Roger Ball (Applicant/Appellant) |
| v | |
| Victoria McKernan (Respondent) |
| APPLICATION NUMBER: | APL023-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 15 March 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Application for stay refused. 2. Application for leave to appeal refused. |
| CATCHWORDS: | APPEAL – MINOR CIVIL DISPUTE – APPLICATION TO STAY DECISION – where the Magistrate ordered the applicant to pay the respondent a fixed sum in compensation – where the applicant seeks leave to appeal that decision – where the applicant filed for a stay of the decision pending leave to appeal – whether stay should be granted |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Ms McKernan’s car was damaged when a vehicle owned and driven by Mr Ball reversed into it in a car park at a shopping centre in Bundaberg on 25 May 2011.
Ms McKernan commenced proceedings against Mr Ball in QCAT’s Minor Civil Disputes jurisdiction. The matter was heard and determined by a Magistrate sitting as a QCAT Member on 8 January 2013.
The learned Magistrate found that Mr Ball was at fault in the collision and liable to Ms McKernan for damages for negligence. He also found that Ms McKernan’s vehicle was damaged beyond economic repair and that she was entitled to recover its current value of $2,750.00 plus her filing fee of $95.00.
Mr Ball seeks leave to appeal that decision. He has also sought a stay. His sole ground of appeal appears to be that Ms McKernan did not give him any photos of the car until 8 January 2013 and the Court ‘… did not check if she sent photos to [sic] insurance company’.
Both parties were directed to file and serve written submissions. Mr Ball’s are to the effect that he needs access to Ms McKernan’s car so it can be valued by his insurance company. He makes no attempt to establish any ground for leave to appeal, and the only error on the part of the learned Magistrate which he appears to assert is that set out above.
I have listened to the recording of the proceedings before the learned Magistrate on 8 January 2013. Mr Ball raised the same matters then. The Magistrate explained to him at length – and with considerable patience – that Ms McKernan had no legal relationship with his insurer and it was up to him to take all necessary steps under his insurance policy if he wished the insurer to indemnify him. During the hearing, despite the learned Magistrate’s attempts to alert him to the errors in what he was saying, Mr Ball was loud and argumentative, and continued to make statements suggesting it was Ms McKernan’s sole obligation to sort things out with his insurer.
His persistence with this unsustainable (indeed, odd) argument, to a point now including an application for leave to appeal and an application to stay the operation of the decision is, in light of the learned Magistrate’s efforts, doubly inexplicable.
The recording makes it clear that the learned Magistrate took care to receive evidence on oath from both parties; to allow them to question each other; to ensure that he understood all the circumstances surrounding the collision, and each parties’ contentions about it; and, to peruse photographs of the accident site, Ms McKernan’s vehicle, and documents relating to her loss. He then gave short but careful reasons addressing the issues of liability, and quantum and making findings in Ms McKernan’s favour which were plainly open on the evidence, and for which he gave perfectly adequate reasons.
Because this is an appeal in the Tribunal’s Minor Civil Disputes jurisdiction, Mr Ball was obliged to establish a ground upon which he is entitled to leave to appeal, before his appeal can proceed. He has made no attempt to do so. Nothing in his application or subsequent submissions suggests that a leave point exists. Nor has he advanced any arguable ground upon which the decision of the learned Magistrate might be stayed.
In the circumstances the application for a stay, and for leave to appeal, must both be refused.
0
0
0