Gough Industries v Bucknell

[2014] QCATA 274

CITATION: Gough Industries v Bucknell [2014] QCATA 274

PARTIES:	Gough Industries P/L atf The Gough Family Trust t/a Gough Plastics (Appellant)
v
Peter Bucknell (Respondent)

APPLICATION NUMBER: APL355-14

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Acting Senior Member Paratz

DELIVERED ON: 23 September 2014

DELIVERED AT: Brisbane

ORDERS MADE: 1.   The application to stay the decision is refused.

CATCHWORDS:

APPLICATION TO STAY DECISION UNDER APPEAL – MINOR CIVIL DISPUTE – whether grounds for stay established – where a claim for loss suffered when molasses tank burst – where the appellant is awaiting a transcript of the hearing but was in attendance and heard the oral reasons at the hearing – where no justification for a stay was shown

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 145(2)

Commissioner of Taxation (Cth) v The Myer Emporium Ltd (No 1) (1986) 160 CLR 220
JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 2) [1983] 2 Qd R 255
Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
Jennings v Design and Procure Pty Ltd [2010] QCATA 36

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. Mr Bucknell is a farmer in North Queensland. He bought a plastic molasses tank from Gough Industries P/L atf The Gough Family Trust t/a Gough Plastics (Gough). It burst, destroying the tank and spilling the contents.

2. He brought an application in the Tribunal at Townsville on 22 August 2014 for refund of the value of the tank of $2,592.88 plus lost molasses to the value of $4,839.90.

3. The tank was purchased on or around 22 February 2007 for $4,735.00. Mr Bucknell argued that he was led to believe that the tank had a 20 year guarantee and was fit for storing molasses. The tank burst on 18 January 2014, and 28 tonnes of molasses spilt onto the ground and was lost.

4. The Tribunal, constituted by a Judicial Registrar of the Magistrates Court at Townsville, heard the matter and made an Order on 22 July 2014 that Gough pay to Mr Bucknell the sum of $5,941.30 within 28 days.

5. Gough filed an Application for leave to appeal or appeal, and also filed an Application to stay the decision, on 22 August 2014. Directions were made as to filing of submissions, and for an On the Papers determination of the stay application not before 16 September 2014. Submissions were received, and this is the decision on the stay application.

6. This Tribunal has power to make an order staying the operation of a decision being appealed against, until that appeal is finally decided: Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 145(2).

7. The normal rule is that a litigant is entitled to the ‘fruits’ of the litigation, a phrase which typically includes a judgment.[1]  While it has been suggested that an applicant for a stay must establish ‘special circumstances’[2] before an order will be made, it has also been said that the discretion is unfettered and that the applicant must demonstrate a basis for a stay, with particular emphasis upon such matters as the balance of convenience, and the competing rights of the parties.[3]

   [1]Commissioner of Taxation (Cth) v The Myer Emporium Ltd (No 1) (1986) 160 CLR 220 at 222 – 223 per Dawson J.

   [2]JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 2) [1983] 2 Qd R 255 at 258.

   [3]Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694 – 695.

1. Gough has stated its reasons for wanting a stay on the application as follows:-  

(1)   The decision of the Delegate was made on 22 July 2014.

(2)   On 25 July 2014, I requested a Statement of Reasons.

(3)   To date, no reasons have been provided.

(4)   On 19 August 2014, I lodged a Form 39 Application for leave to appeal or appeal.

(5)   If the order for payment is complied with, but the decision is overturned on appeal, the respondent will likely have difficulty recovering the amount from the applicant, as the applicant is a farmer in a remote area and has stated that he is suffering hardship and will likely utilise the payment before the appeal is determined.

1. The “Grounds of Appeal” in Gough’s application for leave to appeal do not identify any error of law or fact, but say that other grounds will be provided on receipt of the reasons for decision. They also refer to a judicial member not having constituted the tribunal.

1. In its submissions filed on 2 September 2014, Gough do not raise any justification for a stay. The submissions solely relate to the ordering of a transcript. They submit as to hardship that it will suffer prejudice as it is likely that Mr Bucknell will apply the monies towards a new molasses tank and it will be unable to recover the monies if successful in the appeal; and that Mr Bucknell will not suffer any prejudice if the decision is stayed because if the appeal is unsuccessful Mr Bucknell will be entitled to recover the original amount plus interest.

1. Mr Bucknell submits that he does not believe it is fair that Gough do not pay the amount until the appeal is heard.

1. A stay will not be granted unless the applicant has an arguable case on appeal and the balance of convenience favours the grant of a stay.[4]

   [4]Jennings v Design and Procure Pty Ltd [2010] QCATA 36 at para 4.

1. The hearing was conducted by hearing oral evidence. Both Mr Bucknell and Mr Ian Gough gave evidence. The learned Judicial Registrar gave comprehensive oral reasons at the conclusion of the evidence[5]. The reasons are clear and easily understandable.

   [5]Transcript p 1-13 to 1-15.

1. Mr Ian Gough was in attendance and heard the oral reasons. Whilst a transcript may assist Gough in referring to detail, it is in a position to identify alleged errors of law or fact sufficient to raise grounds for a stay.

1. Gough has been granted an extension of time to allow it to peruse the Transcript before filing submissions on the appeal, so the time taken to obtain the transcript has not affected his ability to properly argue the appeal itself.

1. I do note that an initial perusal of the Transcript does not appear to disclose any obvious error of law or fact, but this is to be determined after receipt of submissions on the Appeal. Gough however has not identified any errors, and as none appear overwhelmingly obvious, there is no suggestion that the decision is clearly unsafe.

1. Gough has raised as an appeal ground that the Tribunal was not constituted by a judicial member, but there is no requirement in the QCAT Act for a Minor Civil Dispute to be heard by a judicial member, and this ground is without foundation.

1. Mr Bucknell has demonstrated hardship by needing to purchase the molasses on his credit card. Gough has not demonstrated any hardship as to its ability to satisfy the judgment.

1. The balance of convenience is clearly with Mr Bucknell who is entitled to the fruits of the decision in his favour, and who has suffered detriment by being deprived of the facility of a molasses tank, and of the molasses itself.

1. No justification for a stay appears on the submissions of Gough, no obvious error appears in the judgment, and the balance of convenience is with Mr Bucknell.

1. The application by Gough for a stay is refused.