Spalding v McDougall

[2022] QCATA 55

QUEENSLAND CIVIL AND

ADMINISTRATIVE TRIBUNAL

CITATION

Spalding v McDougall [2022] QCATA 055

PARTIES:

JOHN SPALDING

(applicant)

v

IAIN MCDOUGALL

(respondent)

APPLICATION NO:

APL007-21

MATTER TYPE:

Other civil dispute matters

DELIVERED ON: 

3 May 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for hire made to applicant owner of car – where car found to mechanically unfit to participate in race - where car withdrawn from competition – whether respondent entitled to refund of moneys paid to application – where Tribunal finds consideration wholly failed – where order made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 118http://

JM 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 APL009-21

Worthington v Ryan [2018] QCATA 192.

W (an infant) In re [1971] AC 682

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 in the cause 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 (McDougall) was keen to compete, and set about hiring a suitable car. He made a verbal agreement with the applicant (`Spalding’) to hire and enter in the race a Holden VZ Clubsport Commodore (`the VZ’) for the amount of $9,900.[2]

   [2]Reserved decision (`RD’) 27 November 2020 page 4 line 25.

3. The VZ developed mechanical difficulties that need not be detailed here, and was withdrawn from the race.

   Initiating application

4. On 23 January 2019 McDougall began a minor civil dispute against Spalding claiming a refund of $9,900 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 McDougall was awarded $10,238 (claim $9,900 plus filing fee $338.20.)

5. In summary the adjudicator found that:

   McDougall paid his money, presented himself at Bathurst, was put in a car that was clearly not fully race-ready, that was, in any event, precluded from participating in the race by the race organisers [and] CAMS, [the] Confederation of Australian Motor Sport.  The VZ was not up to racing a six hour endurance event.  That seems obvious. Mr McDougall never got what he paid for.  He’s entitled to a refund of what he paid Mr Spalding.[3] 

   [3]RD page 5 lines 17-23.

   Application for leave

6. On 4 January 2021 Spalding filed an application for leave[4] 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.[5]

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

   [5]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. At the hearing the adjudicator heard Spalding at considerably greater length than McDougall; at no stage was he dismissive or discourteous, and at no stage was Spalding’s evidence cut short. After Spalding made an uninterrupted submission occupying a full page of transcript he concluded: `That’s it from me.’[6]

   [6]T page 5 line 22.

8. Nevertheless the Adjudicator offered the parties another opportunity to make submissions. McDougall rested his case, while Spalding added a half-page more of transcript.

9. There is no substance in Ground (a). It is not enough to invoke natural justice as a mantra; convincing particulars must also be given.

   Ground (b)

10. The bare assertion in the application for leave is briefly explained in Spalding’s submission of 6 May 2021[7]:

    ... allowing Mr McDougall to submit and rely on evidence that Mr Spalding had not been given access to, being exhibits that Mr McDougall had filed that were unreadable.

    [7]Paragraph 10.

11. We are not told just when Spalding did become aware of those exhibits, but grammatically the implication is that access was effectively denied because the material was `unreadable’. In that case Spalding could well have asked for copies that were readable.

12. Furthermore, we are not told what information was to be found in the `exhibits’, which Spalding must by now, at least, have seen; nor do we have any particulars showing how their alleged unreadability handicapped Spalding in the presentation of his defence.

13. So uncertain is the presentation of Ground (b) that it cannot be upheld.

    Additional grounds

14. So much for the grounds set out in the appeal application. However, Spalding’s submissions. Four months later than the application for leave, purports to expand ad libitum his grounds of appeal.

15. 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, with due regard for the Tribunal’s limited resources, or for other litigants waiting in the queue.[8]

    [8]Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 217; Sali v SPC Limited (1993) 67 ALJR 841 at 843-844

16. The QCAT Act does enable orders allowing grounds of appeal to be amended[9], but the discretion is not used as of course.[10] 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[11] has expired.

    [9]QCAT Act s 64; Lucas v Habul [2020] QCATA 53; Noonan v Osborne and Body Corporate for Spinnaker CTS 40812 [2020] QCATA 130.

    [10]Worthington v Ryan [2018] QCATA 192.

    [11]QCAT Act s 143(3).

17. 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[12], and any particulars strictly relevant thereto.

    [12]Form prescribed for an application for leave to appeal.

    Application for leave not a retrial

18. However, apart from those considerations, Spalding’s case for a grant of leave, as described in his freelance submissions filed on 7 May 2021,[13] 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 McDougall responded to an online advertisement for a driver in the Bathurst event,[14] and it was agreed that McDougall would drive Spalding’s VZ car.[15] McDougall paid Spalding $9,900[16] for 3.5 hours’ `drive time’.[17] Further, the adjudicator found that, through no fault of McDougall[18] the car was unfit to compete and on official advice was withdrawn from the race.[19] Consequently `McDougall never got what he paid for.  He’s entitled to a refund of what he paid Mr Spalding’.[20] 

    [13]Paragraphs 4 to 9.

    [14]RD page 2 line 13.

    [15]RD page 2 line 17.

    [16]RD page 4 line 25.

    [17]RD page 3 line 6.

    [18]RD page 5 lines 13-14.

    [19]RD page 5 lines 18-20.

    [20]RD page 5 lines 23-24.

19. 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.

20. 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].

21. 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]

    [23]Robinson v Corr [2011] QCATA 302 at [7].

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

    [25]Fox v Percy (2003) 214 CLR 118 at 125-126; JM v QFG and KG [1998] QCA 228 at p 20 per Pincus JA; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479.

    [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

22. No reasonably arguable ground of appeal has been shown, and the application for leave must be dismissed.

    ORDER

    The application for leave to appeal is dismissed.