Clinckett v 1st Class Movers Pty Ltd

[2014] QCATA 338

CITATION: Clinckett v 1^st Class Movers Pty Ltd [2014] QCATA 338

PARTIES:	Darren Clinckett (Applicant/Appellant)
v
1st Class Movers Pty Ltd (Respondent)

APPLICATION NUMBER: APL380-14

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member Stilgoe OAM

DELIVERED ON: 8 December 2014

DELIVERED AT: Brisbane

ORDERS MADE:

1.    Leave to appeal granted.

2.    Appeal allowed.

3.    The decision of 7 August 2014 is set aside.

4.    1^st Class Movers Pty Ltd shall pay Darren Clinckett $490 by 29 December 2014.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where applicant engaged removalist – where damage to goods – where claim for compensation dismissed – whether evidence established causation – whether grounds for leave to appeal

Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Pickering v McArthur [2005] QCA 294
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404
Chambers v Jobling (1986) 7 NSWLR 1

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 (Qld) (QCAT Act).

REASONS FOR DECISION

1. During the course of a move from Slacks Creek to Rochedale in December 2013, Mr Clinckett’s fridge and safe sustained damage. He claimed the cost of repair and/or replacement from the removalists, 1^st Class Movers Pty Ltd. He also claimed a refund of some of the removal costs because the removalists were late and slow. Two Justices of the Peace, sitting in the minor civil disputes jurisdiction of the tribunal, dismissed Mr Clinckett’s claim.

2. Mr Clinckett wants to appeal the learned Justices’ decision. He says that Mr Dundon, a director of 1^st Class Movers Pty Ltd lied to the tribunal.

3. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]

   [1]QCAT Act s 142(3)(a)(i).

   [2]Pickering v McArthur [2005] QCA 294 at [3].

1. Mr Clinckett submitted fresh evidence to the appeals tribunal to prove that Mr Dundon’s evidence was incorrect. The appeals 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 such evidence must satisfy three tests. Could Mr Clinckett have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?[3]

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

1. The learned Justices dismissed Mr Clinckett’s claim because, in their view, he had not proven that 1^st Class Movers Pty Ltd caused the damage. An application for leave to appeal is not, and should not be, an attempt to shore up the deficiencies of a party’s case at the initial hearing.

1. Mr Clinckett has provided affidavits from witnesses who were not able to attend the hearing. One of the witnesses was Mr Clinckett’s wife (or ex-wife). He referred to her evidence twice during the hearing[4]. He did not, however, tell the learned Justices that his wife could not attend. He did not tell the tribunal that he had other witnesses who could not attend. He did not ask for an adjournment so that they could give their evidence. That evidence should not be admitted.

   [4]Transcript page 1-19, line 10; page 1-31, line 41 to page 1-32, line 2.

1. Mr Clinckett has provided copies from a blog reviewing the performance of 1^st Class Movers Pty Ltd. The material was downloaded on 3 September 2014, after the hearing. It is not relevant to the dispute, will not have an important impact on the results of the case and should not be admitted.

1. Mr Clinckett has provided material from the website of 1^st Class Movers Pty Ltd. The learned Justices had that material.[5] Mr Dundon, for 1^st Class Movers, pointed out that this information was not on the company’s website when Mr Clinckett engaged it.[6]

   [5]Transcript page 1-7, lines 36 – 47.

   [6]Transcript page 1-9, lines 20 – 26.

1. Mr Clinckett has also provided photos that show the LED screen on the safe was undamaged shortly before the move. The learned Justices accepted the screen was damaged.[7] The issue for them was the cause of the damage. The photograph is of no real assistance on that point.

   [7]Transcript page 1-36, lines 11 – 13.

1. The application for leave to appeal must proceed on the basis of the evidence before the learned Justices.

1. Mr Clinckett gave uncontradicted evidence that the fridge and the safe were undamaged before the move. As he was required to do, Mr Clinckett noted the damage to both items on the tax invoice before signing off and paying 1^st Class Movers. The parties agreed that the safe was damaged after the move. Mr Ormiston, a removalist employed by 1^st Class Movers, denied that the fridge was damaged during the move.

1. I note Mr Clinckett’s view that Mr Dundon was not telling the truth but the learned Justices formed the view after hearing from both parties and Mr Ormiston. The evidence can support the learned Justices’ finding that the fridge was not damaged in the move.

1. But the evidence does show that the safe was damaged during the move. Although Mr Clinckett bears the onus of proving the claim, the learned Justices were entitled to apply a legal principle which, translated from its Latin, states that ‘the thing speaks for itself’. In other words, one fact – the goods were damaged during transit – raises a presumption of another fact – that the movers caused the damage – until the contrary is proven. At least in relation to the safe, the evidence could support a conclusion that the movers caused the damage and there was no evidence before the learned Justices to suggest any other cause of damage. The learned Justices’ reasons for decision do not explain adequately why they found against Mr Clinckett. Leave to appeal should be granted and the appeal allowed.

1. 1^st Class Movers relied on its terms of trade to avoid liability. Mr Clinckett relied on the Australian Consumer Law to argue that the terms of trade were void.

1. Mr Clinckett did report the damage on the invoice before the removalists left as required by clause 2 of the standard terms and conditions. The damage to the safe screen is ‘damage’ rather than a scratch, dent or mark which is excluded by clause 11. It is external damage, so cannot be excluded by clause 10(d) if 1^st Class Movers argued that the safe screen was ‘electrical’. There has been no suggestion, properly in my view, that the damage to the safe screen was an ‘unavoidable risk’ within the meaning of the exclusion in clause 10(c).

1. Because I find that Mr Clinckett’s claim does fall within the terms of 1st Class Movers’ contract, I do not need to consider the Australian Consumer Law issues Mr Clinckett raises. I note that 1^st Class Movers terms and condition acknowledge that they are subject to the provisions of the Trade Practices Act, which was the precursor to the Australian Consumer Law. 1^st Class Movers would do well to obtain advice about the implications of the Australian Consumer Law on its current business practices.

1. Mr Clinckett is entitled to payment for the loss of the screen on his safe. Because he is unable to replace the screen, or the door, he is entitled to the cost of a new safe. He provided evidence of the cost of that safe in the form of an extract from the Masters’ web site and I am prepared to accept that claim. The download also shows a delivery fee of $75, which I am also prepared to accept.

1. Leave to appeal is granted and the appeal allowed. The decision of 7 August 2014 is set aside. 1^st Class Movers Pty Ltd shall pay Darren Clinckett $490 by [21 days].