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Spalding v McDougall

Spalding v McDougall

Case [2022] QCATA 55 3 May 2022

Civil Litigation & Procedure

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for hire made to applicant owner of car – where car found to mechanically unfit to participate in race - where car withdrawn from competition – whether respondent entitled to refund of moneys paid to application – where Tribunal finds consideration wholly failed – where order made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

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.
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…

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 Spalding v McDougall

Details

AGLC: Spalding v McDougall [2022] QCATA 55
Case: [2022] QCATA 55
Decision Date: 3 May 2022

CaseChat Overview and Summary

In Spalding v McDougall, the respondent sought a refund of moneys paid to the applicant, who was the owner of a racing car, after the car was found to be mechanically unfit to participate in a motor race event. The respondent had entered into an agreement with the applicant for the hire of the car, and had paid the hire fee to the applicant prior to the car being withdrawn from the competition. The Tribunal found that the consideration for the hire agreement had wholly failed and ordered a refund. The respondent then sought leave to appeal the Tribunal’s decision, but amended and added grounds of appeal without obtaining the appropriate order from the Tribunal, and without notifying the applicant. The additional grounds of appeal effectively sought to retry the matter.

The court was required to consider whether the respondent was entitled to leave to appeal, and whether any errors made in the course of the application for leave amounted to an appellable error. The court considered the limitations on the grant of leave to appeal, and the circumstances in which the respondent had amended and added grounds of appeal. The court also considered whether the additional grounds of appeal amounted to an attempt to retry the matter, and whether the respondent had complied with the procedural requirements for seeking leave to appeal.

The court held that the respondent was not entitled to leave to appeal. The court found that the respondent had failed to comply with the procedural requirements for seeking leave to appeal, by amending and adding grounds of appeal without obtaining the appropriate order from the Tribunal, and without notifying the applicant. The court also found that the additional grounds of appeal effectively sought to retry the matter, and that there was no appellable error in the Tribunal’s decision. The court held that the respondent’s application for leave to appeal was an abuse of process, and dismissed the application.

The court dismissed the application for leave to appeal, and made no order as to costs.

Orders

Orders of the court

The application for leave to appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Spalding v McDougall [2022] QCATA 55

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 16 of 16 shown

Noonan v Osborne and Body Corporate for Spinnaker CTS 40812
[2020] QCATA 130 Para 16

…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).…
Lucas v Habul
[2020] QCATA 53 Para 16

…ditional 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).…
Worthington v Ryan
[2018] QCATA 192 Para 16

…AT 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).…
Felton and Anor v Raine and Horne Real Estate
[2011] QCATA 330 Para 20

…ical 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].…
Robinson v Corr
[2011] QCATA 302 Para 21

…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] QC…
Minister for Immigration and Citizenship v SZMDS
[2010] HCA 16 Para 21

…us 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 Coun…
Aon Risk Services Australia Ltd v Australian National University
[2009] HCA 27 Para 15

…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…
Myers v Medical Practitioners Board
[2004] VSC 532 Para 20

…een 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].…
Fox v Percy
[2003] HCA 22 Para 21

…ible 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] Min…
JM v QFG and KG
[1998] QCA 228 Para 21

…A 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 SZM…
Sali v SPC Ltd
[1993] HCA 47 Para 15

…tigants 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…
DeVries v Australian National Railways Commission
[1993] HCA 78 Para 21

…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…
Spalding v McDougall
[2022] QCATA 055

…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 a…
[1977] AC 1014
[1977] AC 1014 Para 21

…]; 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…
[1971] AC 682
[1971] AC 682 Para 21

…mission (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…
Azzopardi v Tasman UEB Industries Ltd
2002 SC13437 Para 20

…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 Ho…

Legislation cited in this decision · 1

Queensland Civil and Administrative Tribunal Act 2009 (Qld)
32 2 mentions

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)