Spalding v Kent[2022] QCATA 52

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction 

1. [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 for the sake of competitors’ safety.^[1]
2. [2]
   On Easter weekend in 2018 the track hosted the annual endurance race known as the `Bathurst 6 hour’. The respondent (Kent) was keen to compete as a driver, and set about hiring a suitable car. He made a verbal arrangement with the applicant (`Spalding’) to hire and drive a Holden GTS (`the GTS’) for the amount of $9,983.40.^[2]
3. [3]
   The GTS developed mechanical defects that need not be detailed here, and was withdrawn from the race.^[3]

Initiating application

4. [4]
   On 23 January 2019 Kent began a minor civil dispute against Spalding claiming a refund of $9,983.40 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 Kent was awarded $9491.32.^[4]
5. [5]
   In summary, the adjudicator found that:

[Kent] complied with his part of the bargain, took part in test runs, Lakeside and Morgan Park, presented himself at Bathurst, took part in practice sessions, but never got to the race, and being a driver at the race event was what he essentially paid for ... He, through no fault of his own, did not get what he paid for.^[5]

Application for leave

6. [6]
   On 4 January 2021 Spalding filed an application for leave^[6] to appeal. It does not contest the findings of fact, but depends solely and fundamentally upon an allegation of denial of natural justice:

   1. (a)
      The Tribunal failed to take into account evidence submitted by the Applicant; and
   2. (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.^[7]

Ground (a)

7. [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. Each party had already set out his case in writing, and at the conclusion the adjudicator inquired:

ADJUDICATOR BERTELSEN:   So there’s nothing further from you, then, Mr Spalding?

MR SPALDING:   No.  Not at all.

ADJUDICATOR: ... [I]f there’s anything further either party wanted to say, this is your opportunity to say it because from here on otherwise I will rely on, as I said, the material on the file and what you’ve said today.  That will be the basis of the decision.

MR SPALDING:   Understood.^[8]

8. [8]
   At no stage was the adjudicator dismissive or discourteous, and his questions were designed to assist Spalding in the exposition of his case. Before the hearing ended Spalding was invited to add anything he wished.
9. [9]
   At no stage did Spalding protest that he had not been fully heard.
10. [10]
    There is no substance in Ground (a).

Ground (b)

11. [11]
    The bare assertion in the application for leave is not explained or particularised. It is not enough to invoke natural justice as a mantra; convincing particulars must also be given.

Additional grounds

12. [12]
    So much for the grounds set out in the leave application. However, Spalding’s submission, four months later than the application for leave purports to expand the grounds of appeal.^[9] It is not a mere elaboration of the grounds in the latter document.
13. [13]
    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, the due economy of the Tribunal’s limited resources, or the patience of other litigants in the queue.^[10]
14. [14]
    The QCAT Act does provide for orders allowing grounds of appeal to be amended^[11], but the discretion is not used as of course.^[12] 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^[13] has expired.
15. [15]
    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^[14], and any particulars strictly relevant thereto.

Application for leave not a retrial

16. [16]
    However, apart from those considerations, Spalding’s case for a grant of leave, as described in his freelance submissions filed on 7 May 2021,^[15] 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 Kent responded to an online advertisement for a driver in the Bathurst event,^[16] and it was agreed that he would drive Spalding’s GTS car.^[17] Kent paid Spalding $$9983.40 for that opportunity.
17. [17]
    Further, the adjudicator found that, through no fault of Kent^[18] the car was unfit to compete and on official advice was withdrawn from the race.^[19] Consequently `[Kent] through no fault of his own, did not get what he paid for.’^[20] 
18. [18]
    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.
19. [19]
    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.
20. [20]
    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]

Resolution

21. [21]
    No reasonably arguable error of law has been shown, and the application for leave must be dismissed.

ORDER

22. [22]
    The application for leave to appeal is dismissed.