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Prentis v Stephens[2022] QCATA 1

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Prentis & Anor v Stephens [2022] QCATA 1

PARTIES:

cliff prentis and jacqueline prentis

(applicants)

v

steve stephens

(respondent)

APPLICATION NO:

APL257-20

MATTER TYPE:

Other minor civil dispute matters

DELIVERED ON:

7 January 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 dispute – consumer dispute – where agreement for location and repair of lost boat mooring – where boat owner claims release from certain charges by repairer and part refund – where repairer counterclaim balance of moneys due for services – where claim dismissed and counterclaim allowed – where boat owner seeks leave to appeal – where no reasonably appellable ground shown – where true purpose and limitations of application for leave considered – where leave to appeal refused

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3(b), s 32, s 142

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

Drew v Bundaberg Regional Council [2012] QPELR 350; [2011] QCA 359

Felton and Anor v Raine and Horne Real Estate [2011] QCATA 330

Fox v Percy (2003) 214 CLR 118

International Professional Services v Tritone Nominees Pty Ltd [2011] QCATA 332

JM v OFG [2000] 1 Qd R 373

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

Myers v Medical Practitioners Board (2007) 18 VR 48

QUYD Pty Ltd v Marvass Pty Ltd  [2009] 1 Qd R 41; [2008] QCA 257

Robinson v Corr [2011] QCATA 302.

Toula Holdings Pty Ltd & Ors v Morgo’s Leisure Pty Ltd & Ors [2014] QCA 201

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 – a lost mooring

  1. [1]
    If one enjoys a cruise on Moreton Bay an offshore stop for a few hours is just a matter of dropping anchor. But if one wishes to stop for days, weeks or longer, a more elaborate process is involved. A licence must be obtained from Maritime Safety Queensland to moor in a designated spot precisely identified by data of latitude and longitude.
  2. [2]
    A typical mooring for small craft consists of a floating buoy tethered to a submerged foundation (or `mooring’) a tonne or more in weight. This equipment, subject as it is to salinity, tidal movements and periodic storms, requires regular maintenance. If a buoy and its concrete anchor are severed by inadequate maintenance or rough weather, relocation of the anchor-block may be quite a difficult task, particularly if the block has moved from its original, registered position.
  3. [3]
    That was the predicament of the applicants for leave (`Prentis’) when they engaged the respondent (`Stephens’) of SMBI Dive Service, Russell Island, to retrieve their mooring after a storm in 2019.

Agreement to search and repair

  1. [4]
    The parties signed an inartificial document described as an `SMBI Service Agreement” on 7 November 2019. It is more in the nature of an information sheet than a formal contract, setting out descriptions and prices of various services, and the `scope’ of same.[1] As the work to be done here was exploratory in character, the contract did not specify a comprehensive price; instead, it predicated a series of services, as agreed from time to time.[2] So much is common ground, but the parties differ sharply on the issue of whether all necessary approvals were given.[3]
  2. [5]
    According to Prentis the necessary work was – or should have been – brief and simple because he gave Stephens a document purporting to show the exact position of the mooring.[4] In fact, it did not; it was ten years old.[5] `I had no accurate, recent coordinates’ Stephens complains.[6]

The search proves difficult

  1. [6]
    Stephens searched in vain for the mooring on 8 and 10 November 2019.[7] At that point the search was suspended until summer’s end brought a slight improvement in underwater conditions. Further seabed searches on 30 March, 1 April and 2 April 2020 eventually met with success.[8] The mooring had moved some 26 metres from its original and correct position.[9] Stephens told Prentis that `it was so far off station that it wasn’t funny.’[10]
  2. [7]
    Stephens, as an experienced diver, explained to the tribunal how much more difficult it is to search for an object in murky seawater than on the surface:

Because the visibility was really, really bad you couldn’t actually see in and you were    doing it all by feel.[11]

Now, if you can imagine what it’s like diving in fairly low visibility, it’s like if you’re out ... on an area about the size of a netball court lying down on a skateboard. You’ve got a breathing hose, a regulator in your mouth. You’ve got search ropes in your hands and you’re dragging yourself along the seabed in a circle. Scattered rocks and stuff all around the place, but you can’t see any of that because, at best, you can normally see two or three metres, and a lot of the work I do is at absolute zero visibility when you can’t see your own hand in front of your face.[12]

Unfortunately, because of the amount of rock and car batteries, solar panels, stainless steel sink, crab-pots, anchors and chain, there were many, many targets,[13]

A sonar scanner is introduced

  1. [8]
    Following early failures Stephens advised Prentis that it would make the search speedier and therefore less expensive if a sonar device were employed. Stephens added that if the original mooring were not found a replacement would cost between $2,000 and $4,000, whereupon Prentis became keen than ever to have his old mooring found.[14]

Use of sonar device disputed

  1. [9]
    It is one of Prentis’ main grievances that he was not given an opportunity to consider a sonar search, and that he did not accept that expense.[15] Stephens’ version is radically different:

We had several phone conversations and in my daily reports that I would email him. ... He was perfectly aware of it. He agreed with the sonar thing.[16]

  1. [10]
    The Adjudicator preferred Stephens’ evidence on that point[17], and dismissed the innuendo that Stephens had inflated his charges, deliberately or incompetently, by `going all around the paddock, everywhere except for where the mooring was’.[18]

Claim, counterclaim and decision

  1. [11]
    However Prentis, evidently preferring attack to defence, commenced these proceedings seeking absolution from that claim and other charges ($350 in all) plus a refund of $310.[19]
  2. [12]
    Stephens counterclaimed an unpaid balance of $460.[20]
  3. [13]
    The matter was heard and decided on 16 July 2020 when the Tribunal, accepting the evidence of Stephens, dismissed the claim, allowed the counterclaim, and ordered Prentis to pay Stephens the sum of $460.
  4. [14]
    The preference of Stephens’ case was not arbitrary. The learned Adjudicator stated:

I prefer the evidence of the respondent ... because he comes across as somebody who is professional and has provided great detail about the reasons for the searches he did. I also accept his evidence ... that ... he provided details to Mr and Mrs Prentis in relation to the costs that were being incurred.[21]

Prentis appeals

  1. [15]
    Prentis’ application for leave vaguely asserts that `the facts and evidence produced by the applicant were not considered by the adjudicator who appeared confused by the process of the buoy mooring search and method of mooring tackle connection’.
  2. [16]
    There are no particulars of the evidence allegedly `not considered’. The photographs tendered were found to be inconclusive, for reasons detailed by Stephens and accepted by the tribunal.[22] The functions and distinction between the mooring and the buoy were described to the adjudicator and accepted by her.[23] It cannot seriously be argued that the subject decision turns upon some confusion about the object sought and eventually found by Stephens.
  3. [17]
    The application for leave and supporting material express dissatisfaction and disagreement, but they signally fail to indicate, even in outline, any error of law or procedure at first instance that warrants intervention by this appeal tribunal. There are no particulars of an asserted breach of the agreement on Stephens’ part. It is easy – and quite inadequate - to make a bald assertion that one’s case was not properly considered, and another – and necessary - task to specify why this is so.

An application for leave to appeal – what it is and what it is not

  1. [18]
    It seems apposite, then, to outline the object and limitations of an application for leave to appeal (`leave application’).
  2. [19]
    The framers of the QCAT Act intended that decisions of the primary tribunal, especially in minor matters, should be final. That intention is manifest in the rule that in matters of the present kind, leave shall be a precondition to an appeal.[24]  
  3. [20]
    A leave application is not itself an appeal, but an attempt to show a reasonably arguable case of appellable error, namely an error of law, or radical departure from due process resulting in substantial injustice.[25] It is not nearly enough to express disappointment or dissatisfaction with an unfavourable result, or to harbour a subjective feeling that justice has not been done.[26]
  4. [21]
    Unfortunately it is a common mistake, as in this case, to assume that a leave application is an opportunity to re-run the trial in the hope that finding of fact or credit may be `second-guessed’ in the would-be appellant’s favour. See paragraph [22], above.
  5. [22]
    It is not appellable error to prefer one version of facts to another, or to attribute more `credit’ (weight) to the evidence of party `A’ to that of his or her opponent. Findings of fact are seldom disturbed, provided that they have rational, albeit debateable support in the evidence.[27]

[A] factual conclusion cannot be treated as infected by legal error unless it is supported by no evidence whatever or unless it is clear, beyond serious argument, that it is wrong. That this Court merely disagrees with a factual view of a tribunal does not show that a decision based on it is legally erroneous.[28] 

  1. [23]
    The present case is essentially one turning on its own facts, and an assessment of the relative weight of competing submissions. Within the bounds of rationality such decisions are the prerogative of the primary judge. That is precisely his or her 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 of the trial judge against the weight of evidence.[29]

Where reasonable minds may differ, a decision cannot properly be called erroneous, simply because one conclusion has been preferred to another possible view.[30]

Resolution

  1. [24]
    There was ample evidence upon which the Adjudicator was entitled to make the findings in question. No appellable error has been shown, and I discern none. The application for leave to appeal must be dismissed.

ORDER

The application for leave to appeal is dismissed.

Footnotes

[1] Items numbered 1 to 6.

[2] Transcript of hearing 16 July 2020 (`T’) page 7 line 6, page 13 line 26 (Prentis); page 10 line 41 (Stephens).

[3] T page 2 line 22, page14 line 21.

[4] T page 2 line 47, page 3 line 41.

[5] T page 10 lines 1 and 12.

[6] T page 10 line 12.

[7] Written report Stephens to Prentis circa 10 November 2019.

[8] Written report Stephens to Prentis circa 2 April 2020: `Dived WP482 and found 2m diameter concrete block with 8m 16mm rotten chain and severed rope attached.”

[9] T page 7 line 40 (Stephens). The Adjudicator, perhaps mistakenly, spoke of 22 metres: T page 2 line 47. Page 14 line 25.S

[10] T page 9 line 18. (Stephens).

[11] T page 7 line 30.

[12] T page 9 line 29 ff.

[13] T page 8 line 22.

[14] T page 10 line 35.

[15] T page 7 line 6.

[16] T page 10 line 41 ff.

[17] T page 15 line 4.

[18] T page 2 line 24.

[19] Annexure to application filed 15 May 2020.

[20] Counter-application filed 26 May 2020.

[21] T page 15 lines 4 ff.

[22] T page 12 line 5 ff, page 15 line 22.

[23] T page 15 line 19.

[24] QCAT Act s 3(b), s 142(3)(a)(i).

[25] QUYD Pty Ltd v Marvass Pty Ltd  [2009] 1 Qd R 41; [2008] QCA 257 at [6]; Drew v Bundaberg Regional Council [2012] QPELR 350; [2011] QCA 359 at [18]; Felton and Anor v Raine and Horne Real Estate [2011] QCATA 330 at [19]; International Professional Services v Tritone Nominees Pty Ltd [2011] QCATA 332.

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

[27] Fox v Percy (2003) 214 CLR 118 at 125-126; Toula Holdings Pty Ltd & Ors v Morgo’s Leisure Pty Ltd & Ors [2014] QCA 201 at [109].

[28] JM v OFG [2000] 1 Qd R 373 at 391.

[29] Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151 per Kirby P, cited with approval in Myers v Medical Practitioners Board (2007) 18 VR 48 at [53].

[30] In Re W (an infant) [1971] AC 682 at 700; Minister for Immigration and Citizenship v SZMDS & Another  (2010) 240 CLR 611 at [131.

Close

Editorial Notes

  • Published Case Name:

    Prentis & Anor v Stephens

  • Shortened Case Name:

    Prentis v Stephens

  • MNC:

    [2022] QCATA 1

  • Court:

    QCATA

  • Judge(s):

    Dr J R Forbes

  • Date:

    07 Jan 2022

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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