Gamble v Klein - [2014] QCATA 35

CITATION:

Gamble v Klein [2014] QCATA 35

PARTIES:	Ashley Gamble (Applicant)
v
Paul Klein (Respondent)

APPLICATION NUMBER:

APL283-13

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Thomas, President

DELIVERED ON:

19 March 2014

DELIVERED AT:

Brisbane

ORDER MADE:

The application for leave to appeal is dismissed.

CATCHWORDS:

APPEALS – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – EVIDENCE – where the respondent tendered account statement as evidence of applicant’s debt – where the Magistrate found applicant’s memory to be lacking credibility and reliability – where the Magistrate gave judgment for the respondent – whether identifiable error or injustice in Magistrate’s findings – where only reason given by the applicant in his application for leave to appeal was that “the decision was incorrect” – whether the applicant has complied with requirement of s 143(2)(b) of the QCAT Act – whether leave to appeal should be granted

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 143(2)

Dearman v Dearman (1908) 7 CLR 549, applied
Niemann v Electronic Industries Ltd [1978] VR 431, applied
Pickering v McArthur [2005] QCA 294, applied

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).

REASONS FOR DECISION

This is an application for leave to appeal and, if leave is given, appeal against a decision of the Queensland Civil and Administrative Tribunal in its minor civil disputes jurisdiction.

Background

The respondent is a racing bookmaker for whom judgment was given in the Tribunal for $11,157.35 (including interest and service fees) in respect of credit bets allegedly placed with him by the applicant.
The respondent’s case was that he was owed $13,005.52 by the applicant for bets placed by him on 16 July 2011 at the Dalby Races.
The details of the claim are as follows: the balance of the bookmaking debt ($8,9650.00); credit collection service fees ($1,972.30); interest accrued on the debt and service fees ($1,660.07); filing fees ($275.00); bailiff’s service fees ($53.40); search fees ($66.00); and, a CITEC service fee for electronic filing ($13.75).
The applicant’s response to the claim admitted that credit bets had been made with the respondent on 16 July 2011, but alleged that the amount owed was $2,900.00. The difference in the amount each party claimed was owed to the respondent was said, by the applicant, to be caused by bets being improperly recorded by the respondent and his clerks. In particular, it was alleged that some of the applicant’s winning bets were not recorded on his statement of account, and others which had lost but had not in fact been placed by the applicant were recorded instead.
On 7 June 2013, the application was heard by a Magistrate in Toowoomba sitting as a Member of the Tribunal.
At the hearing, the respondent produced the applicant’s statement of account with him. The statement is a printed record of bets and repayments made by…

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.

Continue reading Gamble v Klein

Details

AGLC: Gamble v Klein [2014] QCATA 35
Case: [2014] QCATA 35
Decision Date: 19 March 2014

CaseChat Overview and Summary

Gamble, the applicant, appealed against a decision made by Klein, the respondent, in the Queensland Civil and Administrative Tribunal. The original dispute was a minor civil matter concerning a debt owed by the applicant to the respondent. The Magistrate had ruled in favour of the respondent, accepting their tendered account statement as evidence of the applicant’s debt. The Magistrate found the applicant’s memory to be lacking in credibility and reliability, leading to the judgment in favour of the respondent.

The central legal issue before the court was whether the Magistrate’s decision contained an identifiable error or injustice. The applicant argued that the decision was incorrect but did not provide any further explanation. The court needed to determine whether the applicant had complied with the requirement of section 143(2)(b) of the Queensland Civil and Administrative Tribunal Act, which mandates that an application for leave to appeal must specify the error or injustice in the original decision. The respondent contended that the applicant had not met this requirement and thus the application should be dismissed.

The court considered the statutory requirement that an application for leave to appeal must specify the error or injustice in the original decision. The applicant had simply stated that "the decision was incorrect" without identifying any specific errors or injustices. The court found that this was insufficient to comply with the statutory requirement. The applicant’s vague assertion did not enable the court to identify any specific grounds for appeal, which are necessary to assess whether leave should be granted. Consequently, the court held that the application did not comply with the statutory requirements, and the appeal was dismissed.

Orders