Gamble v Klein
[2014] QCATA 35
•19 March 2014
| 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 |
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 the applicant between 16 July 2011 and 7 July 2012, and includes: the racecourse at which each bet was placed; the name of the horse; the type of bet (e.g. win, place or each way); and, the amount that was wagered. The statement also records a balance of accounts. The final balance on the applicant’s statement reads ‘-8,965.00’.
While it was the applicant’s case that the bets had been improperly recorded, no evidence was called to contradict the accuracy of the final balance other than his recollection of those bets he placed, and meetings he had, with the respondent on 16 July 2011, 5 May 2012, 6 May 2012, and 7 July 2012.
The learned Magistrate did not find the applicant’s memory of these dealings to be credible or reliable. Instead, the learned Magistrate accepted the details of the contemporaneously made statement of account to be an accurate record of the balance of the bookmaking debt owed by the applicant. That finding led to the learned Magistrate allowing the respondent’s claim, in part, for the amount of $11,157.35.[1]
[1]The amount claimed in respect of credit collection service fees was not allowed.
Application for leave to appeal
Mr Gamble seeks to appeal that decision. An appeal against a decision in a proceeding for a minor civil dispute may only be made by an application for leave to appeal.[2]
[2]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(3)(a)(i) (‘QCAT Act’).
Leave will be granted only where there is a reasonable argument that there is an error to be corrected and the appeal is necessary to correct a substantial injustice to the applicant.[3]
[3]Pickering v McArthur [2005] QCA 294, [3] per Keane JA (as he then was).
An application for leave to appeal or appeal was filed in the Tribunal on 8 July 2013. The stated grounds of appeal are set out as follows:
I believe the decision was incorrect and would like more time to seek legal advice and gather more evidence to support my claim.
The applicant did not file any particulars with his application and, later, advised the Tribunal that he would not make any further submissions, but would rely upon the material before the Appeal Tribunal.[4]
[4]File Note – APL283-13, Gamble v Klein (QCAT, 1 August 2013).
Discussion
It is the responsibility of the applicant seeking leave to identify how the decision at first instance is attended by such doubt to justify the grant of leave to appeal.[5] The Applicant must state the reasons for the application or appeal (i.e. grounds of appeal). It is not sufficient to simply submit that the decision is incorrect. In seeking leave to appeal, it is necessary for the applicant to identify an error of law, fact, or mixed law and fact, which is relevant to the granting of the relief sought on appeal.
[5]Niemann v Electronic Industries Ltd [1978] VR 431, 441-442.
The present application does not articulate any identifiable error or injustice. The applicant seeks to rely on arguments that have already been fully considered at the first hearing.
The transcript of the proceedings shows that the learned Magistrate did not find credible the applicant’s evidence that the bets were improperly recorded by the respondent and his clerks. That finding of fact was reasonably open to the learned Magistrate considering the statement of account which was accepted as being an accurate record of the applicant’s betting history with him.
Numerous authorities, in varying language but with unvarying emphasis, describe the principles that should be applied by an appellate body in an appeal from a decision based upon a finding of fact.
In short, where there is a conflict of evidence, the Appeal Tribunal should not reverse the decision of a member who has had the advantage of hearing the witnesses and considering the evidence first hand unless it can be shown that the decision is manifestly wrong.[6]
[6]Dearman v Dearman (1908) 7 CLR 549 at 553 per Griffith CJ.
The applicant has not shown how the decision is wrong, let alone manifestly so, and no error can be discerned as to how the learned Magistrate took evidence and made findings of facts based on that evidence. There is no basis upon which the learned Magistrate’s findings should be disturbed.
The applicant’s submission that ‘the decision was incorrect’ is unsustained.
Leave to appeal is refused on this ground.
Form of application
While leave to appeal is refused for the reasons above, the application can not succeed because of a fundamental defect in the form in which it was filed.
Under s 143(2) of the QCAT Act, an application for leave to appeal or appeal must be in a form substantially complying with the Queensland Civil and Administrative Tribunal Rules 2009 (Qld), be accompanied by the prescribed fee and, relevantly, state the reasons for the application or appeal.
A statement that ‘the decision was incorrect’ does not, by itself, amount to ‘reasons’ for the application or appeal as that term is used in the QCAT Act.
The reasons (or grounds) for an appeal are the basis upon which an appellant contends that the decision, or a part of the decision, should be set aside, or varied, by the Tribunal in the exercise of its appellate jurisdiction.
In the absence of any reasons, or at least particulars, which set out why the decision was incorrect, the applicant has not complied with the requirement of s 143(2)(b) of the QCAT Act that the applicant state ‘the reasons for the application or appeal’.
Order
The application for leave to appeal or appeal is dismissed.
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