Ostopowicz v Amity Traders Pty Ltd - [2024] QCATA 133

QUEENSLAND CIVIL AND

ADMINISTRATIVE TRIBUNAL

CITATION:

Ostopowicz v Amity Traders Pty Ltd [2024] QCATA 133

PARTIES:

CHRISTINE OSTOPOWICZ

(applicant)

AMITY TRADERS PTY LTD

(respondent)

APPLICATION NO:

ORIGINATING APPLICATION NO:

APL099-22

MCDO874-2021

MATTER TYPE:

Other minor civil dispute matters

DELIVERED ON:

26 November 2024

HEARING DATE:

29 May 2024

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes

ORDERS:

The application for leave to appeal is dismissed

CATCHWORDS:

MINOR CIVIL DISPUTE – claim for damage arising out of the use of a vehicle – incident on a vehicular ferry – damage caused by contact between motor vehicle and side of ferry – applicant alleges that collision due to directions given by respondent’s deckhand – applicant alleges that directions were negligent or unskilful – action by applicant against respondent company – application dismissed – applicant seeks leave to appeal against that decision – decision really one of fact and credit – application for leave to appeal dismissed.

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 11 and Schedule 3

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Boynes v Brown Group Personnel Pty Ltd [2015] VSC 702
Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462
Devries v Australian National Railways Commission (1993) 177 CLR 472
Drew v Bundaberg Regional Council [2011] QCA 359

Felton & Anor v Raine and Horne Real Estate [2011] QCATA 330

Fox v Percy (2003) 214 CLR 118
JM v QFG and KG [2000] 1 Qd R 373
McAuliffe v Secretary, Department of Social Security [1991] FCA 268
Manonai v Burns [2011] WASCA 165
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 25

Sydney United Football Club v Soccer NSW [2005[ NSWSC 474

APPEARANCES & REPRESENTATION:

Applicant Self represented

Respondent: Mr S Wallace

REASONS FOR DECISION

INTRODUCTION

This is a Minor Civil Dispute in the technical sense and in reality. The resources of the tribunal, publicly funded, were expended at first instance, and on appeal, upon a claim for $1,346.27.
The applicant Ms Christine Ostopowicz (‘Ostopowicz’) resides on Coochie Mudlo, an island in Moreton Bay.
The respondent operates a vehicular ferry service (‘Amity’) between Coochie Mudlo and Victoria Point. Steve Wallace is effectively the proprietor of that business.[1]
[1] Transcript of hearing 21 February 2022 (‘T’) page 22 lines 4-11.
The accident
On 7 May 2021 Ostopowicz, driving Toyota sedan 577ZLG, embarked on Amity’s vessel at Coochie Mudlo en route to Victoria Point. She describes her embarkation as follows:
I was … under the direction of a staff member who directed me … where to park my vehicle as I drove onto the barge. Before I backed my car into the space I advised Connor Davis [the deckhand] I did not want to park my car on the left hand side of the barge. He advised don’t worry [sic] I will direct you all the way. … My car became damaged by a sign attached to the side of the barge due…

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 Ostopowicz v Amity Traders Pty Ltd

Details

AGLC: Ostopowicz v Amity Traders Pty Ltd [2024] QCATA 133
Case: [2024] QCATA 133
Decision Date: 26 November 2024

CaseChat Overview and Summary

In the case of Ostopowicz v Amity Traders Pty Ltd, the applicant, Mr Ostopowicz, filed a claim in the Magistrates Court of Victoria seeking compensation for damage to his vehicle that occurred during its boarding onto a vehicular ferry operated by Amity Traders Pty Ltd. The incident in question involved contact between Mr Ostopowicz's motor vehicle and the side of the ferry. Mr Ostopowicz alleged that the collision was caused by negligent or unskilful directions given by a deckhand employed by Amity Traders. The applicant's legal action was directed against the respondent company, Amity Traders Pty Ltd, following the dismissal of his original claim. Mr Ostopowicz subsequently sought leave to appeal against the decision, arguing that the dismissal was incorrect.

The primary legal issue before the court was whether the decision to dismiss Mr Ostopowicz's claim was appropriate. Specifically, the court had to determine whether the dismissal was based on factual findings or the assessment of witness credibility, both of which are generally considered matters of fact rather than law. The court also considered whether there were any errors in the application of legal principles that would warrant an appeal.

The court found that the decision to dismiss the claim was fundamentally one of fact and the assessment of witness credibility. It was not evident from the record that the magistrate had erred in their factual findings or in the assessment of the evidence presented. The court concluded that the decision to dismiss the claim was not amenable to appeal on the grounds that it involved a factual determination rather than a legal error. Consequently, the application for leave to appeal was dismissed.

In summary, the court upheld the original decision to dismiss Mr Ostopowicz's claim for damages, finding that the dismissal was a matter of fact and credibility rather than legal error. The court therefore dismissed the application for leave to appeal.

Orders

Orders of the court

The application for leave to appeal is dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Ostopowicz v Amity Traders Pty Ltd [2024] QCATA 133
PARTIES:	CHRISTINE OSTOPOWICZ
(applicant)
AMITY TRADERS PTY LTD
(respondent)
APPLICATION NO: ORIGINATING APPLICATION NO:	APL099-22 MCDO874-2021
MATTER TYPE:	Other minor civil dispute matters
DELIVERED ON:	26 November 2024
HEARING DATE:	29 May 2024
HEARD AT:	Brisbane
DECISION OF:	Dr J R Forbes
ORDERS:	The application for leave to appeal is dismissed
CATCHWORDS:	MINOR CIVIL DISPUTE – claim for damage arising out of the use of a vehicle – incident on a vehicular ferry – damage caused by contact between motor vehicle and side of ferry – applicant alleges that collision due to directions given by respondent’s deckhand – applicant alleges that directions were negligent or unskilful – action by applicant against respondent company – application dismissed – applicant seeks leave to appeal against that decision – decision really one of fact and credit – application for leave to appeal dismissed. Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 11 and Schedule 3 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Boynes v Brown Group Personnel Pty Ltd [2015] VSC 702 Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462 Devries v Australian National Railways Commission (1993) 177 CLR 472 Drew v Bundaberg Regional Council [2011] QCA 359 Felton & Anor v Raine and Horne Real Estate [2011] QCATA 330 Fox v Percy (2003) 214 CLR 118 JM v QFG and KG [2000] 1 Qd R 373 McAuliffe v Secretary, Department of Social Security [1991] FCA 268 Manonai v Burns [2011] WASCA 165 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 25 Sydney United Football Club v Soccer NSW [2005[ NSWSC 474
APPEARANCES & REPRESENTATION:	Applicant Self represented Respondent: Mr S Wallace