Spalding v Kent

Case [2022] QCATA 52

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION

Spalding v Kent [2022] QCATA 52
PARTIES: JOHN SPALDING

(applicant)

v

MURRAY JOHN KENT

(respondent)

APPLICATION NO:

APL008-21

MATTER TYPE:

Appeals

DELIVERED ON: 

28 April 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes

ORDERS:

The application for leave to appeal is dismissed.

CATCHWORDS:

APPEAL – APPLICATION FOR LEAVE TO APPEAL – MINOR CIVIL CLAIM – DEBT CLAIM – where respondent proposes to compete in  motor race event- where agreement for hire of racing car – where payment for hire made to applicant owner of car – where car found to mechanically unfit to participate in race - where car withdrawn from competition – whether respondent entitled to refund of moneys paid to application – where Tribunal finds consideration wholly failed – where order made for refund – where respondent seeks leave to appeal that decision – where grounds of appeal amended or added without appropriate order – where additional grounds effectively seek to retry the matter – where limitations of application for leave considered –– whether any appellable error - where leave to appeal refused

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 64, s 142, s 143

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139

Devries v Australian National Railways Commission (1993) 177 CLR 472
Felton & Anor v Raine and Horne Real Estate [2011] QCATA 330
Fox v Percy (2003) 214 CLR 118
v QFG and KG [1998] QCA 228
Lucas v Habul [2020] QCATA 53

Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611

Myers v Medical Practitioners  Board (2007) 18 VR 48

Noonan v Osborne and Body Corporate for Spinnaker CTS 40812 [2020] QCATA 130
QUYD Pty Ltd v Marvass Pty Ltd  [2009] 1 Qd R 41
Robinson v Corr [2011] QCATA 302

Sali v SPC Limited (1993) 67 ALJR 841

Secretary of State for Education and  Science v Tameside Metropolitan Borough Council [1977] AC 1014

Spalding v Filipetto APL 009-21

W (an infant, In Re) [1971] AC 682

Worthington v Ryan [2018] QCATA 192

APPEARANCES & REPRESENTATION:

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

Introduction 

  1. The motor raceway on Bathurst’s Mt Panorama (`the track’) is one of the best known in Australia, and, some say, one of the most dangerous. Cars that compete on it must be in top condition for the sake of competitors’ safety.[1]

    [1]Spalding v Filipetto APL 009-21 Transcript of hearing 18 August 2020 (`T’) page 4 line 26.

  2. On Easter weekend in 2018 the track hosted the annual endurance race known as the `Bathurst 6 hour’. The respondent (Kent) was keen to compete as a driver, and set about hiring a suitable car. He made a verbal arrangement with the applicant (`Spalding’) to hire and drive a Holden GTS (`the GTS’) for the amount of $9,983.40.[2]

    [2]Reserved decision (`RD’) 27 November 2020 page 2 line 4.

  3. The GTS developed mechanical defects that need not be detailed here, and was withdrawn from the race.[3]

    [3]RD page 3 lines 6-11.

    Initiating application

  4. On 23 January 2019 Kent began a minor civil dispute against Spalding claiming a refund of $9,983.40 and certain other amounts that, in the event, the Tribunal did not allow. The matter was heard on 18 August 2020 and in a reserved decision delivered on 27 November 2020 Kent was awarded $9491.32.[4]

    [4]Refund of $9983.40 less earlier refund of $830.28 plus filing fee $338.20.

  5. In summary, the adjudicator found that:

    [Kent] complied with his part of the bargain, took part in test runs, Lakeside and Morgan Park, presented himself at Bathurst, took part in practice sessions, but never got to the race, and being a driver at the race event was what he essentially paid for ... He, through no fault of his own, did not get what he paid for.[5]

    [5]RD page 3 lines 40-44.

    Application for leave

  6. On 4 January 2021 Spalding filed an application for leave[6] to appeal. It does not contest the findings of fact, but depends solely and fundamentally upon an allegation of denial of natural justice:

    (a)The Tribunal failed to take into account evidence submitted by the Applicant; and

    (b)A substantial injustice has occurred as a result of the Respondent being permitted to submit and rely upon evidence that the Applicant [was not] given access to.[7]

    [6]QCAT Act s 142(3)(a)(i).

    [7]Application filed 4 January 2021 (grounds of appeal).

    Ground (a)

  7. Neither the application for leave nor Spalding’s submissions of 6 May 2021 in support of it provides any particulars of this sweeping assertion. Each party had already set out his case in writing, and at the conclusion the adjudicator inquired:

    ADJUDICATOR BERTELSEN:   So there’s nothing further from you, then, Mr Spalding?

    MR SPALDING:   No.  Not at all.

    ADJUDICATOR: ... [I]f there’s anything further either party wanted to say, this is your opportunity to say it because from here on otherwise I will rely on, as I said, the material on the file and what you’ve said today.  That will be the basis of the decision.

    MR SPALDING:   Understood.[8]

    [8]Transcript of hearing 18 August 2020 (`T’) page 6 lines 33 ff page 7 lines 1-4.

  8. At no stage was the adjudicator dismissive or discourteous, and his questions were designed to assist Spalding in the exposition of his case. Before the hearing ended Spalding was invited to add anything he wished.

  9. At no stage did Spalding protest that he had not been fully heard.

  10. There is no substance in Ground (a).

    Ground (b)

  11. The bare assertion in the application for leave is not explained or particularised. It is not enough to invoke natural justice as a mantra; convincing particulars must also be given.

    Additional grounds

  12. So much for the grounds set out in the leave application. However, Spalding’s submission, four months later than the application for leave purports to expand the grounds of appeal.[9] It is not a mere elaboration of the grounds in the latter document.

    [9]Submissions of Spalding 6 May 20 2021 paragraphs 3 and 4.

  13. It is difficult to accept that an application for leave, however sketchy, can ratify a catalogue of disparate allegations, added, perhaps, well after the time for such an application expires, leaving the appeal tribunal to comb through a voluminous file in case additional grounds turn up in some extraneous document.  Such a procedure scarcely assists the expeditious treatment of appeal cases, the due economy of the Tribunal’s limited resources, or the patience of other litigants in the queue.[10]

  14. The QCAT Act does provide for orders allowing grounds of appeal to be amended[11], but the discretion is not used as of course.[12] One serious question to be considered is that a party applying to amend is effectively seeking to make an additional application after – perhaps long after – the normal time for filing a leave application[13] has expired.

  15. Especially to be discouraged is reliance upon appellate afterthoughts when no order to amend the leave application appears on the Tribunal’s file. That is the position in this case. On that ground alone the Tribunal is entitled, if not bound, to confine the applicant to the grounds set out in his Form 39[14], and any particulars strictly relevant thereto.

    [14]Form prescribed for application for leave to appeal.

    Application for leave not a retrial

  16. However, apart from those considerations, Spalding’s case for a grant of leave, as described in his freelance submissions filed on 7 May 2021,[15] does not demonstrate an appellable error. Instead, it attempts to re-litigate issues raised at the trial, and there decided against him. The adjudicator, as judge of fact and credit, found that Kent responded to an online advertisement for a driver in the Bathurst event,[16] and it was agreed that he would drive Spalding’s GTS car.[17] Kent paid Spalding $$9983.40 for that opportunity.

    [15]Paragraphs 4 to 9.

    [16]RD page 2 line 11.

    [17]RD page 2 line 17.

  17. Further, the adjudicator found that, through no fault of Kent[18] the car was unfit to compete and on official advice was withdrawn from the race.[19] Consequently `[Kent] through no fault of his own, did not get what he paid for.’[20] 

    [18]RD page 3 line 44.

    [19]RD page 5 lines 18-20.

    [20]RD page 3 line 44.

  18. Spalding’s unauthorised extensions to his application proceed on a misunderstanding that unfortunately misleads many applicants for leave to appeal. He seeks to re-run the trial.

  19. An application for leave to appeal is not an opportunity to re-assert and reargue disputed points of fact that have been decided by the primary decision maker; that is his exclusive task.[21] It is a distinct and relatively narrow quest for appellable errors of law.[22] Indeed, the very purpose of `leave barrier’ is to preclude attempts to retry cases on the merits, or to introduce evidence or arguments that might have been led in the first place, but were not.

    [21]Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151; Myers v Medical Practitioners    Board (2007) 18 VR 48 at [53].

    [22]QUYD Pty Ltd v Marvass Pty Ltd  [2009] 1 Qd R 41; Felton & Anor v Raine and Horne Real Estate [2011] QCATA 330 at [19].

  20. It is not nearly enough for an applicant to express disappointment, or to entertain a subjective feeling that justice has not been done.[23] It is not an appellable error to prefer one version of the facts to another[24], or to give less weight to one party’s case than he or she thinks it should receive. Findings of fact will not normally be disturbed if they have rational support in the evidence, even if another reasonable view is available.[25] Where reasonable minds may differ, a decision cannot properly be called erroneous, simply because one conclusion has been preferred to another possible view.[26]

    [24]Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151.

    [26]Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at

    [131]; In Re W (an infant) [1971] AC 682 at 700 per Lord Hailsham; Secretary of State for Education and    Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1025.

    Resolution

  21. No reasonably arguable error of law has been shown, and the application for leave must be dismissed.

    ORDER

  22. The application for leave to appeal is dismissed.


Details
AGLC
Spalding v Kent [2022] QCATA 52
Case
[2022] QCATA 52
Decision Date

CaseChat Overview and Summary

In the matter of Spalding v Kent, the respondent sought leave to appeal against a decision of the Tribunal which found that the applicant, Spalding, was entitled to retain money paid to him for the hire of a racing car. The car was hired for a motor race event, but was found to be mechanically unfit to participate, and was subsequently withdrawn from the competition. The respondent argued that he was entitled to a refund of the moneys paid to Spalding, but the Tribunal found that the consideration for the hire had wholly failed, and ordered a refund. The respondent now seeks leave to appeal that decision, arguing that the Tribunal erred in its decision. The court must consider whether there are any grounds upon which an appeal could be brought, and whether leave to appeal should be granted. The legal issues before the court are whether the grounds of appeal have been properly amended or added, and whether any appellable error has occurred.

The court found that the grounds of appeal had been amended or added without the appropriate order, and that the additional grounds effectively sought to retry the matter. The court noted that an application for leave to appeal is not an opportunity for the parties to re-litigate the case, and that the grounds of appeal must be confined to points of law or errors of fact that have a significant bearing on the outcome of the case. The court also considered the limitations of the application for leave, and found that there was no appellable error. The court held that the Tribunal's decision was correct, and that there were no grounds upon which an appeal could be brought.

The court dismissed the application for leave to appeal, finding that there were no grounds upon which an appeal could be brought. The court noted that the respondent's arguments were essentially an attempt to re-litigate the matter, and that the grounds of appeal did not identify any significant legal or factual errors that would warrant an appeal. The court held that the decision of the Tribunal was correct, and that there was no appellable error. The court also noted that the respondent's arguments were not confined to points of law or errors of fact that had a significant bearing on the outcome of the case.

The final orders of the court were that the application for leave to appeal be dismissed. The court found that there were no grounds upon which an appeal could be brought, and that the decision of the Tribunal was correct. The court held that the respondent was not entitled to a refund of the moneys paid to Spalding, and that the applicant was entitled to retain the hire fee. The court also noted that the respondent's arguments were not confined to points of law or errors of fact that had a significant bearing on the outcome of the case, and that the application for leave to appeal was effectively an attempt to re-litigate the matter.

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

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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