Moss v Walkers Moving and Storage
[2013] QCATA 87
•26 March 2013
| CITATION: | Moss v Walkers Moving & Storage Pty Ltd [2013] QCATA 87 |
| PARTIES: | Ms Carolyn Tempest Moss (Applicant/Appellant) |
| v | |
| Walkers Moving & Storage Pty Ltd (Respondent) |
| APPLICATION NUMBER: | APL012 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Senior Member |
| DELIVERED ON: | 26 March 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused |
| CATCHWORDS: | MINOR CIVIL DISPUTE – where goods stored in premises built on floodplain – where goods lost in January 2011 flood – whether loss due to breach of duty pleaded on alternatives – whether misleading and deceptive conduct – whether member complied with s29 obligations – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 s29 Dearman v Dearman (1908) 7 CLR 549 Chambers v Jobling (1986) 7 NSWLR 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 |
APPEARANCES and REPRESENTATION (if any):
The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
In December 2010, Ms Moss moved from Brisbane to Sydney. Before she left, she put her household effects into storage with Walkers Moving & Storage Pty Ltd. The storage yard was inundated in the catastrophic floods on January 2011 and Ms Moss lost about $30,000 worth of goods. She claimed compensation from Walkers for that amount but Walkers refused the claim. Ms Moss filed a claim with the tribunal. The tribunal dismissed her claim.
Ms Moss wants to appeal that decision. She says that the learned Member considered irrelevant matters, namely the insurance position. She says that the learned Member erred in his finding that the law of bailment did not apply. She says that the learned Member erred in finding that Walker was not negligent or had not breached its duty as bailee or was not in breach of ss 52, 53 or 74 of the Trade Practices Act 1974 (Cth). Ms Moss says that the learned Member incorrectly relied on statements from Walker representatives and did not give her statements appropriate weight. She says that the learned Member’s finding that the known flood risk today is vastly different from the known flood risk prior to January 2011 is not supported by the facts. Finally, she says that the learned Member did not fulfil his obligation[1] to ensure that Ms Moss understood the practices and procedure of the tribunal.
[1] Queensland Civil and Administrative Tribunal Act 2009 s29.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?[2] Is there a reasonable prospect that the applicant will obtain substantive relief?[3] Is leave necessary to correct a substantial injustice caused by some error?[4] Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?[5]
[2] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[3] Cachia v Grech [2009] NSWCA 232 at 2.
[4] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[5]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
Ms Moss has filed copies of letters from the Brisbane City Council dated January 2013 in support of her application. The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined.[6] Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Ms Moss 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?[7]
[6] ss 137 and 138 QCAT Act.
[7] Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.
Ms Moss’s claim always included a submission that Walker should not have operated from the Coopers Plains site because it knew, or should have known, that it was flood prone. Ms Moss had accessed the Council flood information and she was aware of the Floodwise Property Report database before the hearing in December 2012. It follows, therefore, that the inquiries she made in January 2013 were inquiries she could have made prior to the hearing. 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.
In any event, for the reasons that follow, the documents do not have an important impact on the outcome of the dispute. That evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Member.
The learned Member did say that it was significant to record that Walker offered insurance to Ms Moss.[8] He makes a similar comment at the conclusion of his reasons for decision.[9] Ordinarily, the fact of insurance is irrelevant to the tribunal’s deliberations. In this case, though, clause 10 the contract refers to insurance and the parties had drawn the learned Member‘s attention to the terms of the contract. However, there is no reference to insurance in the learned Member’s findings about negligence or a breach of the Trade Practices Act 1974. Without that connection, I am unable to say that the learned Member erred in his decision.
[8] Transcript page 17.
[9] Transcript page 21.
The learned Member acknowledged that bailment was an issue. He went on to find, and this is the statement that Ms Moss takes issue with:[10]
In my view, in circumstances where there is a contract as between the parties, and overlaid above the contract are statutory requirements, these are the consumer protection, the laws of bailment can be dispensed with.
[10] Transcript page 19.
While bailment imposes strict liability on the bailee, those obligations can be varied by contract.[11] Ms Moss acknowledges that her contract with Walker contained exclusion clauses. Although, perhaps, the learned Member’s comments about bailment may not have been as clear as he intended, I do not dispute his conclusion; that, because of the contract between the parties, bailment is probably not an issue.
[11]Pacific Resources International Pty Ltd v UTI (Aust) Pty Ltd [2012] NSWSC 1274 at [88].
The duty in bailment may be strict, but it is not absolute. A bailee is required to exercise the standard of care that an ordinary reasonable person would take in all the circumstances. Ms Moss is correct, however, in saying that, in bailment, the onus of proving what is reasonable shifts to Walker.
Ms Moss’s main complaint is that the learned Member did not find Walker breached its duty to her, whether that duty is in bailment, negligence or breach of the Trade Practices Act.
The appeals tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[12] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[13] As the High Court said in Fox v Percy:
In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.[14]
[12]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[13] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[14] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
Ms Moss says that Walker knew, or should have known when it leased the property, that it was likely to flood. She says that it failed to make the necessary inquiries and that, if it had done, it would not have conducted a storage business on that site. She also says that Walker should have warned her of the risk of flooding.
The learned Member acknowledged the thrust of Ms Moss’s argument.[15] He concluded that it was a “very long bow to draw”. He made the point, which Ms Moss contests, that the known risk in late 2012 is vastly different from the risk as it was known in January 2011.
[15] Transcript page 20.
Ms Strickland, a director of Walker told the tribunal that the site did not flood in 1974.[16] Prior to January 2011, the community accepted the 1974 flood levels as the benchmark for flood susceptibility in Brisbane. The learned Member decided the issues before him without factoring in the benefit of hindsight. That was the proper approach and I have no reason to come to a different view. The learned Member’s findings apply to Ms Moss’s claim whether it is framed in bailment, negligence, a breach of warranty under the Trade Practices Act or a claim for misleading and deceptive conduct.
[16] Transcript page 10.
Ms Moss also says that, once the flood threat was known, Walker did not take proper steps to protect her property. She says they should have contacted her so that she had an opportunity to save her property. Warren Strickland outlined the flood events in his affidavit sworn December 2012. On Tuesday 11 January, Walker staff members were either moving goods to higher ground or had left to secure their own homes. Walker staff worked throughout Tuesday night to move goods. They were still working early Wednesday morning until water started lapping at the premises. The learned Member found that immediate steps were taken on the day to protect property[17] and I agree with that conclusion. Ms Moss was living in Sydney. She says that, had Walker contacted her, she could have arranged for a friend to collect her goods. Within the context of events that day, I find this submission unrealistic. Transport through the city that day was difficult. The authorities were urging people not to travel. Walker was fully engaged in moving goods. The intervention of a third party would not have been easy or, I suspect, welcome in the difficult hours before the flood consumed the property.
[17] Transcript page 21.
Even though the onus is reversed in bailment – it is for Walker to show that its actions were reasonable - I find that the result is the same. The learned Member was satisfied that Walker took the steps that a reasonable person would take in all the circumstances. There is nothing in the transcript that would cause me to take a different view.
Ms Moss says that the learned Member did not fulfil his obligation[18] to ensure that she understood the practices and procedures of the tribunal. She says that Ms Strickland said a lot of things during the hearing that Ms Moss wanted to question but she was not invited to do so. Ms Moss says she remained silent because she was not sure what she should do and felt intimidated. She says that she thought she would be given that opportunity at the end of the evidence but she was not. She says that she thought she would be able to refer to things that the learned Member did not specifically address but this never happened.
[18] Queensland Civil and Administrative Tribunal Act 2009 s29.
At the start of the hearing, the learned Member asked Ms Moss to explain her claim.[19] He clarified her understanding that her claim was limited to the tribunal’s jurisdiction of $25,000.[20] After Ms Strickland had given some evidence, the learned Member referred back to Ms Moss for comment.[21] He told her she had the onus of proof.[22] The learned Member allowed Ms Moss’ partner, Mr Russell, to assist.[23] The transcript shows that Mr Russell was a competent advocate. After further evidence from Ms Strickland, the learned Member, once again, asked Ms Moss for comment.[24] He gave her a further opportunity to comment[25] and, when the learned Member announced that he would adjourn to give reasons for decision, Ms Moss asked if she could make one further comment.[26] I have listened to a record of the hearing. Ms Moss presents as confident and competent. I do not accept that the learned Member failed in his obligation to ensure Ms Moss had an understanding of the tribunal process. On any view, she and Mr Russell conducted their case confidently and competently.
[19] Transcript, page 1.
[20] Transcript page 4.
[21] Transcript page 5.
[22] Transcript page 5.
[23] Transcript page 6.
[24] Transcript page 12.
[25] Transcript page 15.
[26] Transcript page 15.
There is no question of general importance that should be determined by the appeals tribunal. There is no reasonably arguable case that the learned Adjudicator was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.
0