Captain Nemo's Pool and Spa Supplies v Pike - [2021] QCAT 47

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Captain Nemo’s Pool and Spa Supplies v Pike [2021] QCAT 47

PARTIES: CAPTAIN NEMO’S POOL AND SPA SUPPLIES

(applicant)

v

NIGEL PIKE

(respondent)

APPLICATION NO:

APL130-20

MATTER TYPE:

Other minor civil dispute matters

DELIVERED ON:

10 February 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes

ORDER:

The application for leave to appeal is dismissed

CATCHWORDS:

APPEAL – APPLICATION FOR LEAVE TO APPEAL – consumer dispute – where the applicant firm did not appear at the time appointed for hearing – where the primary tribunal exercised its discretion to hear and determine the matter in the applicant’s absence – where the applicant changed its address without notifying QCAT – where the applicant alleges that it was unaware of its duty to notify QCAT – where notice of trial sent to applicant’s former address – where applicant alleges denial of due process and seeks a new trial – whether application for leave should be granted

Acts Interpretation Act 1954 (Qld) s 39A
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 92, s 93, s 139, s 140, 3^rd schedule
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Collier v Coast to Coast Earthmoving Pty Ltd [2018] QCATA 129
Fox v Percy (2003) 214 CLR 118

FV Rentals (t/a Forbes Realty Rentals) v Anderson [2014] QCATA 181

Harris v Foxworth Pty Ltd [2013] QCATA 133

House v The King (1936) 55 CLR 499
Keynes Capital Global Limited v Guo [2020] NSWCA 178
Lee v The Queen [2020] NSWCCA 307
Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611

Pickering v McArthur [2005] QCA 294

The Pot Man Pty Ltd v Reaoch [2011] QCATA 318

W, In re, (an infant) [1971] AC 682

APPEARANCES & REPRESENTATION:

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

This application by Captain Nemo’s Pool and Spa Supplies (`Nemo’) seeks leave to appeal a decision of the Tribunal, given in its absence on 30 January 2020. The amount of $5,770.50 was then awarded to the Respondent Nigel Pike (`Pike’).
On or about 28 November 2017 Nemo sold Pike an outdoor spa bath and accessories. Pike claims that that the spa was irreparably faulty due to leaks and deterioration of the plastic base.
The parties attended mediation[1], but no resolution resulted.[2]
[1]T page 2 lines 11-13.
[2]Certificate of mediation 11 June 2019.
Pike began these proceedings on 6 March 2019, and they were listed for hearing on 30 January 2020. Pike then appeared. Nemo did not.
Ex parte hearing
In exercising its lawful discretion to proceed ex parte the Tribunal observed:
[Nemo’s notice of hearing] was sent to Shop 26, 502 Hope Island Road, Helensvale.[3] That is where the notice of mediation[4] went, so I am going to accept that they received notice of mediation and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Captain Nemo's Pool and Spa Supplies v Pike and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] QCAT 47
Decision Date

CaseChat Overview and Summary

In the matter of Captain Nemo's Pool and Spa Supplies v Pike, the court was presented with an appeal against a decision concerning the registration of a change of address. The appellant, Captain Nemo's Pool and Spa Supplies, argued that the trial judge had made an error in not allowing them to present their case due to a failure to register a change of address. The dispute centred on whether the appellant's failure to update their address constituted a valid reason to dismiss their case and whether they were entitled to a retrial.

The primary legal issue before the court was whether the appellant's failure to register a change of address justified the dismissal of their application and whether this warranted a retrial. The court had to consider the principles governing appeals against discretionary decisions and whether the appellant had demonstrated that an appellable error had occurred, resulting in a substantial injustice.

The court found that the appeal against a discretionary decision was heavily restricted and could only be upheld if the decision was plainly unjust or unreasonable. The court held that the appellant had not demonstrated that the trial judge's decision was erroneous, as reasonable minds could differ on the matter. The court emphasised that an application for leave to appeal was not an opportunity to re-evaluate the primary decision, but rather to determine if there had been an appellable error causing substantial injustice. In this case, the appellant had not met this burden.

The court dismissed the application for leave to appeal, concluding that the appellant had not presented a reasonable argument that an appellable error had occurred, nor had they demonstrated a substantial injustice. The court's decision was based on the established principles governing appeals against discretionary decisions, which limited the scope of such appeals. The court found that the appellant's dissatisfaction with the outcome did not constitute a sufficient ground for an appeal.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

An application of the present kind is clearly something that the Act is designed to discourage. If any party who fails to register a change address were allowed to appeal and secure a new trial, then one trial would become two, and the second trial, could generate another appeal about a disproportionately modest amount of money or property. Justice to the party who duly did appear is not to be disregarded.Appealing discretionary decisions A section 93 decision is discretionary. Appeals against discretionary decisions are particularly restricted:The manner in which an appeal against an exercise of discretion is governed by established principles. It is not enough that the judges of the appellate court consider that, if they had been in the position of the appellate court, they would have taken a different course.[23][23]House v The King (1936) 55 CLR 499 at 505; Lee v The Queen [2020] NSWCCA 307 at [152]. Provided that the decision is not plainly unjust or unreasonable, or clearly contrary to principle, the decision will not usually be disturbed.[24] The present decision cannot fairly be described in those terms. Where reasonable minds may differ, a decision cannot properly be called erroneous simply because one conclusion has been preferred to another possible view.[25][24]Keynes Capital Global Limited v Guo [2020] NSWCA 178 at [10].[25]Fox v Percy (2003) 214 CLR 118 at 125-126; Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at [131]; In Re W (an infant) [1971] AC 682 at 700. Not a retrial An application for leave to appeal is not an opportunity to `second guess’ the primary decision. It is not nearly enough to feel a subjective sense of injustice, or to express disappointment at an adverse decision. An application of this kind is limited to the question: Has the applicant produced a reasonable argument that an appellable error has occurred, and has a substantial injustice resulted?[26] Nemo has not discharged that onus. Accordingly, the application for leave must be dismissed.[26] Pickering v McArthur [2005] QCA 294 at [3]. FV Rentals (t/a Forbes Realty Rentals) v Anderson[2014] QCATA 181 at [4]. ORDER: The application for leave is dismissed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Captain Nemo’s Pool and Spa Supplies v Pike [2021] QCAT 47
PARTIES:	CAPTAIN NEMO’S POOL AND SPA SUPPLIES
(applicant)
v
NIGEL PIKE
(respondent)
APPLICATION NO:	APL130-20
MATTER TYPE:	Other minor civil dispute matters
DELIVERED ON:	10 February 2021
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Dr J R Forbes
ORDER:	The application for leave to appeal is dismissed
CATCHWORDS:	APPEAL – APPLICATION FOR LEAVE TO APPEAL – consumer dispute – where the applicant firm did not appear at the time appointed for hearing – where the primary tribunal exercised its discretion to hear and determine the matter in the applicant’s absence – where the applicant changed its address without notifying QCAT – where the applicant alleges that it was unaware of its duty to notify QCAT – where notice of trial sent to applicant’s former address – where applicant alleges denial of due process and seeks a new trial – whether application for leave should be granted Acts Interpretation Act 1954 (Qld) s 39A Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 92, s 93, s 139, s 140, 3^rd schedule Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Collier v Coast to Coast Earthmoving Pty Ltd [2018] QCATA 129 Fox v Percy (2003) 214 CLR 118 FV Rentals (t/a Forbes Realty Rentals) v Anderson [2014] QCATA 181 Harris v Foxworth Pty Ltd [2013] QCATA 133 House v The King (1936) 55 CLR 499 Keynes Capital Global Limited v Guo [2020] NSWCA 178 Lee v The Queen [2020] NSWCCA 307 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 Pickering v McArthur [2005] QCA 294 The Pot Man Pty Ltd v Reaoch [2011] QCATA 318 W, In re, (an infant) [1971] AC 682
APPEARANCES & REPRESENTATION:	This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)