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Queensland Judgments
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  • Unreported Judgment

Wolf v Advance Australia Removals & Storage Pty Ltd (No 2)

 

[2020] QCATA 123

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Wolf v Advance Australia Removals & Storage Pty Ltd (No 2) [2020] QCATA 123

PARTIES:

FLORIAN WOLF

(applicant/appellant)

v

ADVANCE AUSTRALIA REMOVALS & STORAGE PTY LTD

(respondent)

APPLICATION NO/S:

APL171-19

ORIGINATING APPLICATION NO/S:

Caboolture MCDO0051-18

MATTER TYPE:

Appeals

DELIVERED ON:

12 August 2020

HEARING DATE:

3 August 2020

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes, Member

ORDERS:

The application for leave to appeal numbered APL171 of 2019 is dismissed.

CATCHWORDS:

APPEAL – APPLICATION FOR LEAVE TO APPEAL where contract of carriage between applicant and removalist – minor civil claim for debt – consumer cross-claim – where the two matters are tried jointly – where respondent to debt claim unsuccessfully sought leave to appeal adverse decision in that matter – where same party, as unsuccessful applicant in cross-claim, seeks leave to appeal in latter case also – whether second application for leave competent – where second application discloses no appellable error – where second application for leave to appeal dismissed.

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 97

Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 48(3), r 79

Wolf v Advance Australia Removalists Pty Ltd [2010] QCATA 17 July 2020

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

  1. [1]
    In May 2018, as described in a related decision[1] (‘the first decision’) the Respondent removalist (`Advance’) carried furniture and effects of the Appellant (‘Wolf’) from Magnetic Island to Eungella.
  2. [2]
    Subsequently Advance sued Wolf in debt, and Wolf responded with claims for compensation and a reduction of Advance’s fees.
  3. [3]
    Wolf began his proceedings in the form of a counterclaim, but a peculiarity of tribunal procedure[2] (`the special rule’) obliged him to re-frame his allegations as a separate action. The actions were tried jointly.
  4. [4]
    The primary tribunal upheld the action for debt and awarded $24,891.42 to Advance. The tribunal dismissed Wolf’s cross-action for compensation and reduction of Advance’s charges.
  5. [5]
    Dissatisfied with the primary decision, Wolf instituted two separate applications for leave to appeal, namely APL170 of 2019 (seeking to set aside the judgment for debt) and APL 171 of 2019 (challenging the dismissal of his compensation claim). Application APL170 of 2019 has already been dismissed.[3]
  6. [6]
    As an unintended consequence of the special rule, it may be possible for Wolf to base two separate applications for leave to appeal upon the single decision at first instance. Assuming (without deciding) that this is so, and that Wolf’s second application is not re judicata, I turn now to the merits of Application 171 of 2019 (`the second application’).
  7. [7]
    In the second application, Wolf expatiates, first, upon the cost of repairs. But as he failed to succeed on the liability issue, no question of quantum arises.
  8. [8]
    Second, Wolf submits that the primary decision (`PD’) attaches undue weight to the absence of photographic evidence of the condition of the goods before they were uplifted.[4] This view was considered by the judge of fact who rejected it, as he was entitled to do. The primary tribunal’s prerogatives in matters of fact and credit are explained in the first decision[5] and need not be recited here. The present application (APL 171-19) implicitly admits that no pre-carriage photographs were tendered.[6]
  1. [9]
    Third, Wolf contends that `the court alleged [sic] that the inventory[7] did not identify Wolf’s Biedermeier furniture to be of particular value.’ That is so. However, the PD immediately goes on to note an email of 3 May 2018 informing Advance that `most of the furniture is old and French polished’.[8] More to the point, while the antiquity of the furniture was an evidential issue, the ultimate issue was whether Wolf discharged the onus of proving that the furniture – new or old, more or less valuable - was damaged by Advance. On that crucial issue Wolf failed to satisfy the tribunal.[9] That was a finding that, on the evidence, the judge of fact was entitled to make. It is not a proper function of an appeal tribunal to `second guess’ it.[10]
  2. [10]
    Fourth, it is submitted that transit insurance was not offered by Advance. That is undisputed. At the hearing Mr Organ, for Advance, made it clear that the company was not lawfully entitled to do so, and Wolf accepted that statement.[11] In fact, for reasons of expense, Wolf did not obtain transit insurance.[12] But once again, the real point was to prove that Advance lost or damaged the goods.
  3. [11]
    Fifth, Wolf questions the credit of Advance’s witnesses, Pike and Miels, each of whom gave evidence by way of statutory declaration. The adjudicator, noting that neither man was cross-examined, accepted their evidence with caution.[13] Ironically, Wolf later sought to tender contrary declarations of two close relatives. But by then the trial was over.
  4. [12]
    There are provisions in the Act and Rules, akin to a subpoena, to summon a person to give evidence.[14] There is no suggestion that Wolf sought to use those provisions.
  1. [13]
    The second application for leave, in common with the first,[15] is essentially an impermissible attempt to re-contest issues of fact and credit, and to advance comments and arguments that were, or could have been addressed to the primary tribunal. No reasonably appellable error is identified. For reasons set out in the first decision[16], and on the authorities there cited, the second application[17] must be dismissed.

ORDER

  1. The application for leave to appeal numbered APL171 of 2019 is dismissed.

Footnotes

[1] Wolf v Advance Australia Removalists Pty Ltd [2010] QCATA, 17 July 2020.

[2] Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 48(3), prohibiting a counterclaim in answer to a claim for debt.

[3] See note 1, above.

[4] See transcript of evidence 2 April 2019 (`T’) pages 27-28; PD paragraph [67] and paragraph [29] of the first decision.

[5] See paragraphs [27] – [29] thereof.

[6] Annexure A to application APL 171-19, page 2, 5th unnumbered paragraph (`clairvoyant capabilities’ disavowed).

[7] A list of goods to be removed, prepared for another purpose some 5 years earlier.

[8] PD paragraph [18].

[9] PD paragraph [76]; see also PD [82] as to alleged loss of books. See also first decision paragraph [27].

[10] See the first decision, paragraph [27].

[11] T page 7 lines 27-28.

[12] T page 8 line 25.

[13] PD paragraph [73].

[14] QCAT Act s 97(1)(a), QCAT Rules r 79.

[15] I.e. Application 170 of 2019.

[16] See first decision, particularly paragraphs [26]-[29].

[17] I.e.Application 171 of 2019.

Close

Editorial Notes

  • Published Case Name:

    Wolf v Advance Australia Removals & Storage Pty Ltd (No 2)

  • Shortened Case Name:

    Wolf v Advance Australia Removals & Storage Pty Ltd (No 2)

  • MNC:

    [2020] QCATA 123

  • Court:

    QCATA

  • Judge(s):

    Member Dr J R Forbes

  • Date:

    12 Aug 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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