O'Loughlin v Vintage Aeroplane Services

[2010] QCATA 103

CITATION: O’Loughlin v Vintage Aeroplane Services [2010] QCATA 103

PARTIES:	Raymond O’Loughlin (Applicant/appellant)
v
Vintage Aeroplane Services (Respondent)

APPLICATION NUMBER:            APL198-10               

MATTER TYPE:

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON:   8 December 2010

DELIVERED AT:   Brisbane

ORDERS MADE:  Application for leave to appeal refused

CATCHWORDS : 

MINOR CIVIL DEBT – SERVICES RENDERED – where respondent performed work on plane owned by appellant – where appellant did not attend hearing – where Tribunal ordered that appellant pay respondent for services rendered – where appellant denies ownership of plane but was invoiced for work performed – whether proceeding tainted by lack of procedural fairness – whether leave should be granted

Queensland Civil and Administrative Tribunal Act 2009, ss 137, 142(3)

Fox v Percy [2003] HCA 22, cited

APPEARANCES and REPRESENTATION (if any):

By order of the Appeal Tribunal the application for leave to appeal (and appeal, if leave is granted) were directed to be determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. Vintage Aeroplane Services, a business conducted by Mr Patrick Harrington, brought proceedings in QCAT’s Minor Civil Disputes jurisdiction against Mr O’Loughlin for work allegedly performed on a plane he owned.

1. The matter came on for hearing before a QCAT adjudicator on 19 July 2010. Mr O’Loughlin did not appear. After requiring Mr Harrington to prove his case by giving evidence on oath, the learned adjudicator ordered that Mr O’Loughlin pay him $6,571.43 – and that Mr Harrington make an aeroplane propeller, which had featured in the proceedings, available to Mr O’Loughlin within 28 days after receipt of that payment.

1. Mr O’Loughlin has sought leave to appeal the adjudicator’s decision. Leave is necessary: Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), s 142(3). His principal ground of appeal was that he was denied natural justice because, he says, he was not actually the owner of the aircraft and was only acting on the owner’s behalf. He also alleges he was unable to attend the hearing because he was obliged, urgently, to be interstate at the time.

1. On 27 September 2010 the Deputy President ordered that the application for leave (and the appeal, if leave is granted) would be determined on the papers, and set a timetable for the exchange of submissions. Mr O’Loughlin’s submissions do not repeat the allegation that he was ‘urgently interstate’ but say, instead, that the ‘…dates were mixed up, and was away on business, so was unable to attend the court hearing…’. There is no suggestion that any mix up with the dates was caused by QCAT, or Mr Harrington.

1. Mr O’Loughlin does, however, repeat his allegation that although the invoice from Vintage Aeroplane Services was made out to him the true owner was a company, Zorif Pty Ltd. He has sworn a statutory declaration in which he says that in all his dealings with Vintage Aeroplane Services he was acting ‘…in the capacity of negotiator for my employer only’.

1. There is, however, a deal of evidence which has the effect of making the truth, or otherwise, of this allegation unclear. 

1. First, Mr Harrington gave sworn evidence that his contract was with Mr O’Loughlin and nothing in their dealings suggested some other person or entity was the owner of the plane. Secondly, Mr O’Loughlin filed a response to the Minor Civil Dispute which contains a number of detailed allegations of inadequate or poor work by Vintage Aeroplane Services, but does not deny that Mr O’Loughlin was the owner, or the contracting party for the work.

1. Thirdly, in his submissions in this appeal proceeding Mr O’Loughlin has produced copies of two letters his solicitors wrote to Mr Harrington early this year, both commencing with the phrase ‘we act for Mr Ray O’Loughlin…’ and, otherwise, containing no denial of ownership. Indeed, the first letter contains an offer to settle Mr Harrington’s original invoice for about $2,000.00 less than it claimed.

1. My sole duty is to determine whether there is an error in the primary decision. It is not my task to decide where the truth lay as between the competing versions given by the parties[1]. Mr O’Loughlin failed to appear at the hearing before the learned QCAT adjudicator. He has not sought to have that proceeding reopened, on the basis that he had a reasonable excuse for not attending: See QCAT Act, s 137. He raises, for the first time, an allegation about ownership that is not featured in any documents he placed before QCAT in its Minor Civil Disputes jurisdiction, and which is inconsistent with other material he has provided to the Appeals Tribunal with his submissions.

   [1]Fox v Percy [2003] HCA 22 at [32] per Gleeson CJ, Gummow and Kirby JJ.

1. There is nothing, then, in Mr O’Loughlin’s application or his submissions or supporting material which suggests that any error occurred in the primary decision, or that he has reasonable prospects of obtaining relief if he is given leave to appeal. There is nothing to suggest any injustice to him, caused by any error on the part of the adjudicator. Indeed, his allegations before this Appeal Tribunal are attended by a heavy shadow of doubt. In all of those circumstances leave to appeal must be refused.