Wolf v Advance Australia Removals and Storage Pty Ltd
[2020] QCATA 181
•15 July 2020
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Wolf v Advance Australia Removals & Storage Pty Ltd [2020] QCATA 181
PARTIES: FLORIAN WOLF (Applicant)
v
ADVANCE AUSTRALIA REMOVALS & STORAGE PTY LTD (Respondent)
APPLICATION NO:
APL170 of 2019
ORIGINATING APPLICATION NO:
MCDO 140 of 2018 Caboolture
MATTER TYPE:
Appeals
DELIVERED ON:
15 July 2020
HEARING DATE:
13 July 2020
HEARD AT:
Brisbane
DECISION OF:
Dr J R Forbes, Member
ORDERS: 1 If necessary, the time for filing the application for leave to appeal is extended to and including 2 July 2019.
2 The application to adduce additional evidence on appeal is dismissed.
3 The application for leave to appeal is dismissed.
4 No order as to costs.
CATCHWORDS: APPEAL – APPLICATION FOR LEAVE TO APPEAL – contingent extension of time to apply - minor civil claim for debt - whether Response permitted by rules – where separate action substituted - where action and cross-action heard together – where contract of carriage between applicant and removalist – where removalist sues for expenses of removal – whether variations to original quotation allowable – where removalist awarded judgment in debt – where cross-action for damage to and loss of goods – where onus of proof in cross-action not discharged – where cross-action for damages dismissed – whether appellable error in primary decision against application shown – where no appellable error demonstrated – whether leave be given for additional evidence – whether principles for additional evidence satisfied – where additional evidence inadmissible - where application for leave to appeal dismissed.
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 61, s 142
Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 48
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Bonett v The Queen [2013] NSWCCA 234
Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” (1976) 136 CLR 529
Coulton v Holcombe (1986) 162 CLR 1Devries v Australian National Railways
Commission (1993) 177 CLR 472
Fox v Percy (2003) 214 CLR 118
Hawkins v Pender Bros Pty Ltd [1990] 1 Qd R 135
Kristeff v The Queen (1968) 42 ALJR 233
Mickelberg v The Queen (1989) 167 CLR 259
Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611
Orr v Holmes (1948) 76 CLR 632
Police v Kyriacou (2009) 103 SASR 243
R v Hodges [2018] QCA 92
S v Crimes Compensation Tribunal [1998] 1 VR 83
W (an infant), In Re [1971] AC 682
Williams v Official Trustee in Bankruptcy (1994) 122 ALR 585
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
A Threshold Issue
The Respondent Advance Australia Removals & Storage Pty Ltd (`Advance’) submits that the Appellant Florian Wolf (`Wolf’) filed this application for leave to appeal[1] out of time. The tribunal’s records suggest that this may be so. But if in fact the filing was indeed late, only two or three days would be involved. Meanwhile, the matter has moved through interlocutory hearings generating voluminous documentation, uninhibited by a limitation issue. In the circumstances I shall order that the time for filing be extended, if need be, to and including 2 July 2019.[2]
[1]Leave to appeal is required in this case: QCAT Act s 142(3).
[2]The Tribunal may grant such relief on its own initiative: QCAT Act s 61(1), s 61(4).
Background
In 2007 Wolf and his family arrived in Adelaide from Hamburg, Germany. Among Wolf’s effects was a prized collection of antique furniture.
Since 2007 Wolf has changed his residence several times, most recently from Magnetic Island to the north Queensland village of Eungella. That transition, his sixth, is the fons et origo of this case.
In May 2018 Wolf engaged Advance, a business based in Caboolture, to move his furniture and effects to Eungella. As the primary tribunal found, elaborate terms in writing dated 8 May 2018 (repeated in an invoice dated 11 June 2018) form part of the contract.[3]
[3]Reasons for Decision 10 May 2019 (`RD’) paragraph [9].
Unfortunately, all did not go smoothly. Wolf alleges that Advance negligently damaged his furniture, and failed to deliver other items. Advance, for its part, sues Wolf for the costs of removal. Wolf admits that he owes Advance $12,650[4], but claims a set off for damage to his antique furniture, and the loss of books which he values at $8,000.
[4]RD paragraphs [24] and [43].
Initially Advance estimated that the load would comprise 110 cubic metres. But in fact, as the tribunal found[5], it amounted to 135m3. The initial estimate was based on an inventory prepared by another removalist five years earlier. Advance had requested an updated list, but according to the company Wolf did not comply.[6]
[5]RD paragraphs [10] and [27].
[6]Transcript of hearing 2 April 2019 (`T’) page 11 lines 43-45.
The original quotation, based on the outdated inventory, was for $11,850. However, pursuant to the contract[7], Advance charged $3,750 for the extra load. The tribunal found[8], Wolf accepted that addition. Advance charged a further $2,950 for extraordinarily difficult access to the Eungella premises.
[7]Terms of carriage dated 8 May 2018 Clauses 4.2, 4.3.
[8]RD paragraph [32]. See the evidence of Daniel Pike - statutory declaration sworn 25 March 2019, 5th unnumbered paragraph.
Litigation begins
Litigation began on 12 November 2018 when Advance claimed a debt of $19,350.
On 13 December 2018 Wolf responded with a claim for $67,511.60.[9]
[9]T page 4 line 33.
Manifestly that claim exceeded the Tribunal’s monetary jurisdiction, and when that was explained to Wolf, he immediately and remarkably reduced it to $25,000[10] - a waiver of about $40,000, or some 60% of his original demand.
[10]T page 6 lines 15-17.
On 22 March 2019, in another procedural correction[11], Wolf reframed his Response as a separate cross-claim.
[11]Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 48(3).
The primary decision
The claim and cross claim were heard together on 2 April 2019. In a reserved judgment delivered on 10 May 2019 the tribunal dismissed Wolf’s cross-action in toto, and awarded Advance $24,891.42.
The proposed appeal
Wolf now seeks leave to appeal that decision. He does not directly challenge the dismissal of his action, but in effect seeks a declaration[12] that he is not liable to pay Advance the sum of $12,650 that he previously admitted owing.
[12]See submissions filed by Wolf on 22 October 2019 page 8 (unnumbered).
Proposed grounds of appeal - ambit of appeal defined
The ambit of the proposed appeal is defined and limited by the application for leave. Later submissions are relevant only in so far as they fall within the four corners of the application. They are not a means of widening the scope of the proposed appeal.
Annexure `A’ to the application for leave consists of 3½ pages of discursive complaints. These may be summarised, as best one can, as follows:
(i) The inventory that Wolf supplied to Advance was not written by him but by an earlier removalist 5 years earlier. It was not intended to be definitive.
(ii) Advance did not make a preliminary inspection of the load.
(iii) Wolf informed Advance of the antique character of his furniture and the extent of his book collection before the time of removal.
(iv) Advance underestimated the size of the load.
(v) Advance misjudged the difficulty of the approach to Wolf’s new home despite warnings by Wolf. The truck used for the final section of the journey was too large.
(vi) Advance did not give proper notice of extra charges and Wolf did not accept them.
(vii) It was agreed that Advance’s charge would not be paid unless and until the carriage and delivery of the goods was satisfactorily completed.
Is any appellable error shown?
As explained below, none of these contentions identifies an appellable error. They invite the following comments in the light of the material adduced at trial, and the Member’s findings:
Ground (i): The point about authorship of the inventory is merely captious. It is common ground that it was written by another removalist, but it was adopted by Wolf, who did not comply with Advance’s request for an updated list.[13] There is no evidence that Wolf communicated to the company his subjective intention that the list supplied `was never intended to be the sole basis for developing a quote’.[14] If that were the case, it is reasonable to suppose that the list would have been accompanied by a suitable caveat and an offer of any further information Advance might require.
[13]T page 11 line 45. This evidence was not disputed.
[14]Application for leave, annexure A page 1.
Ground (ii): The tribunal found, as it was entitled to do, that it was not reasonable to expect Advance to travel from Caboolture, near Brisbane, to make a physical inspection of goods on an island near Townsville, to prepare a quotation which might, after all, never be accepted. The tribunal was satisfied that the witness Organ, a removalist of some 37 years’ experience, could construct a quotation upon such information as Wolf saw fit to provide.[15] The reliability of that information was Wolf’s responsibility.
[15]RD paragraph [27].
Ground (iii): This allegation is correct, but it relates to the claim for damage to property which the tribunal has rejected.[16]
[16]RD paragraph [82].
Ground (iv): The initial estimate, subsequently revised, was based upon inadequate instructions.[17] Those instructions were Wolf’s responsibility.
[17]RD paragraphs [29] and [31].
Ground (v): The tribunal found that `it could not be practical for a removalist to inspect the destination conditions on a fairly routine domestic removal’[18] – a fortiori, one might add, when the carrier selected by Wolf was based hundreds of kilometres away from the destination. On the evidence, that is not an unreasonable view.
[18]RD paragraph [35].
Ground (vi) Clause 4.2 of the contract[19] provides for cost increases caused by `lack of, or restricted access’. See again the comment on Ground (v), above. The judge of fact found that Wolf accepted the extra charges.[20] With respect to the difficulty of access, there is support for that finding in the statement of Pike,[21] which the tribunal was entitled to accept.
Ground (vii) There is no evidence of such an agreement upon the trial record.
[19]As quoted in RD paragraph [35].
[20]RD paragraphs [32] and [39]. See also T page 41 lines 24ff.
[21]Statutory declaration of Daniel Pike, sworn 25 March 2019.
Additional evidence admissible?
Wolf seeks to introduce additional evidence, in particular two statutory declarations about the condition of his furniture before it was uplifted by Advance.[22] The admission of additional evidence on appeal is strictly regulated. The new material must be credible and likely, if admitted, to affect the result substantially. Further it must appear – and the onus of proving this is upon the applicant – that it was not reasonably obtainable at the time of the trial.[23] Those three requirements are cumulative.[24]
[22]Declarations of Sina Marie Saunders sworn 9 September 2019, and of Sigrid Timman sworn 6 September 2019.
[23]Williams v Official Trustee in Bankruptcy (1994) 122 ALR 585; Hawkins v Pender Bros Pty Ltd [1990] 1 Qd R 135; Orr v Holmes (1948) 76 CLR 632 at 640-641; Mickelberg v The Queen (1989) 167 CLR 259 at 273; R v Hodges [2018] QCA 92.
[24]Bonett v The Queen [2013] NSWCCA 234 at [80].
The adversary system generally requires a court to base its decision, as best it can, on the information the parties place before it at the trial.[25] The declarations of Saunders and Timmin were sworn about 5 months after the trial. They indicate that the deponents are relatives of Wolf. There is no evidence that this material could not have been obtained before the hearing in April 2019. Neither it, nor anything else in three voluminous sets of post-application submissions satisfies the tests described in the paragraph immediately above.
[25]Kristeff v The Queen (1968) 42 ALJR 233; Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” (1976) 136 CLR 529 at 582-583; Police v Kyriacou (2009) 103 SASR 243 at [4].
It follows that no material additional to that led at the trial is admissible.
Nature and limits of application for leave
In essence Wolf seeks to revisit and retry the case de novo. But an application for leave to appeal is not an opportunity to `second guess’ the trial court. The trial is not a mere `preliminary skirmish’.[26]
[26]Coulton v Holcombe (1986) 162 CLR 1 at 7.
An application for leave is limited to a search for a reasonably arguable error of law or a finding of fact not reasonably open. Disagreement or dissatisfaction with a decision maker’s findings of fact or credit is not a ground of appeal. If there is any evidence to support a finding of fact the finding is not liable to be set aside[27].
If there is evidence, or if there are available inferences which compete for the judge’s acceptance, no error of law occurs simply because the judge prefers one version of evidence to another or one set of inferences to another. This is his function. ... Even if the evidence is strongly one way the Appeal Court may not intervene simply because it reaches a different conclusion and this even if it regards the conclusion of the trial judge against the weight of evidence.[28]
[27]S v Crimes Compensation Tribunal [1998] 1 VR 83 at 91.
[28] Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151.
The legislative purpose of the `leave’ precondition in section 142 of the QCAT Act 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. It is not appellable error to prefer one version of the facts to another, or to give less weight to one party’s case than he or she thinks it ought to receive. Findings of fact are not normally disturbed if they have rational support in the evidence, even if another reasonable view is available.[29] Where reasonable minds may differ, a decision cannot properly be called erroneous, simply because the judge of fact prefers one conclusion to another possible view.[30]
[29]Fox v Percy (2003) 214 CLR 118 at 125-126.
[30] Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at [131]; In Re W (an
infant) [1971] AC 682 at 700.
The weight (or `credit’) of evidence is peculiarly a matter for the primary decision maker. The judge of fact was not prepared to accept Wolf’s account of undamaged furniture at time of loading without photographic corroboration.[31] Elsewhere he referred discreetly to `less than convincing’ testimony.[32] Non-payment of an admitted liability of $12,650 evoked the comment that it `demonstrated a want of good faith’[33] on the appellant’s part, and Wolf’s readiness to abandon $40,000 of his cross-claim may also have induced a scintilla of doubt.
[31]RD paragraph [67].
[32]RD paragraph [79].
[33]RD paragraph [43].
Conclusion
In the absence of any arguable case of legal error, or `glaringly improbable’[34] error in fact-finding the application for leave must be dismissed.
[34]Fox v Percy (2003) 214 CLR 118 at [28] – [29]; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479.
ORDERS
1 If necessary, the time for filing the application for leave to appeal is extended to and including 2 July 2019.
2 The application to adduce additional evidence on appeal is dismissed.
3 The application for leave to appeal is dismissed.
4 No order as to costs.
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