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- Unreported Judgment
Spalding v Filipetto QCATA 56
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Spalding v Filipetto  QCATA 056
Other civil dispute matters
3 May 2022
On the papers
Dr J R Forbes
The application for leave to appeal is dismissed.
APPEAL – APPLICATION FOR LEAVE TO APPEAL – MINOR CIVIL 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for hire made to applicant owner of car – where car found to mechanically unfit to participate in race – where car withdrawn from competition – whether respondent entitled to refund of moneys paid to application – where Tribunal finds consideration wholly failed – where order made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 vAustralian National Railways Commission (1993) 177 CLR 472
Felton & Anor v Raine and Horne Real Estate  QCATA 330
Fox v Percy (2003) 214 CLR 118 http://www.austlii.edu.au/au/cases/cth/HCA/2003/22.html
JM v QFG and KG  QCA 228
Lucas v Habul  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  QCATA 130
QUYD Pty Ltd v Marvass Pty Ltd  1 Qd R 41
Robinson v Corr  QCATA 302
Sali v SPC Limited (1993) 67 ALJR 841
Secretary of State for Education and Science v Tameside Metropolitan Borough Council  AC 1014
Spalding v Filipetto APL009-21
Worthington v Ryan  QCATA 192.
W (an infant) In re  AC 682
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
- 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.
- On Easter weekend in 2018 the track hosted the annual endurance race known as the `Bathurst 6 hour’. The respondent (Filipetto) was keen to compete, and went in search for a suitable car. As a `paying driver’ he made a verbal agreement with the applicant (`Spalding’) to drive a VZ Commodore (`the VZ’). On Spalding’s behalf he paid an entry fee of $6050. He also paid Spalding $5000 in person.
- The VZ developed mechanical difficulties that need not be detailed here, and was withdrawn from the race.
- On 23 January 2019 Filipetto began a minor civil dispute against Spalding claiming a refund of $12,050. The matter was heard on 18 August 2020 and in a reserved decision delivered on 27 November 2020 Filipetto was awarded $11,050 plus filing fee $338.20, a total of $11,388.20.
- In summary, the adjudicator found that:
Mr Spalding cannot rely on his own failure to have the two cars actually start in the race to uphold a non-refund position, ie, one cannot rely on one’s own fault to one own’s benefit.
Mr Filipetto paid the entry fee direct to the race organiser, but that was a matter of convenience only. It does not affect the substance of the agreement. As for the $6050 entry fee is concerned, the tribunal accepts the payment was made. As well as that, $5000 was paid to Mr Spalding’s family account. Neither [was] denied.
Application for leave
- On 4 January 2021 Spalding filed an application for leave to appeal. The endorsement on the application does not contest the findings of fact, but depends solely and fundamentally upon an alleged denial of natural justice:
- (a)The Tribunal failed to take into account evidence submitted by the Applicant; and
- (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.
- Neither the application for leave nor Spalding’s submissions of 6 May 2021 in support of it offers any particulars of this sweeping assertion. Each party had already set out his case in writing, and at the conclusion of the hearing the parties were invited to make any submissions they wished to make.
- 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:
ADJUDICATOR BERTELSEN: All right. That’s it from you, Mr Spalding, as well?
MR SPALDING: Yeah, that’s fine.
- At no stage did Spalding protest that he had not been fully heard.
- There is no substance in Ground (a).
- The bare assertion in the application for leave is not unexplained or particularised. It is not enough to invoke natural justice as a mantra; convincing particulars must also be given.
- 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. It is not a mere elaboration of the grounds in the latter document.
- 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, with due regard for the Tribunal’s limited resources, and for other litigants waiting in the queue.
- The QCAT Act does provide for orders allowing grounds of appeal to be amended, but the discretion is not used as of course. 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 has expired.
- 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, and any particulars strictly relevant thereto.
Application for leave not a retrial
- However, apart from those considerations, Spalding’s case for a grant of leave, as described in his freelance submissions filed on 7 May 2021, 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 in September or October 2017 Filipetto approached Spalding about leasing a car to drive in the `Bathurst 6 hour’. It was agreed that Filipetto would drive a VZ Commodore. Filipetto paid Spalding $11,050 for that opportunity.
Mr Filipetto was denied participation in a race event for which he had paid. All that he ever got at Bathurst for his money was two troubled practice laps.
- Spalding’s unauthorised extensions to his application for leave proceed on a misunderstanding that unfortunately misleads many applicants for leave to appeal. He seeks to re-run the trial.
- 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. It is a distinct and relatively narrow quest for appellable errors of law. 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.
- It is not nearly enough for an applicant to express disappointment, or to entertain a subjective feeling that justice has not been done. It is not an 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 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. Where reasonable minds may differ, a decision cannot properly be called erroneous, simply because one conclusion has been preferred to another possible view.
- No reasonably arguable error of law has been shown, and the application for leave must be dismissed.
- The application for leave to appeal is dismissed.
 Spalding v Filipetto APL 009-21 Transcript of hearing 18 August 2020 (`T’) page 4 line 26.
 Reserved decision (`RD’) 27 November 2020 page 7 lines 33-34.
 RD page 7 lines 24-26
 RD page 7 lines 31-35.
 QCAT Act s 142(3)(a)(i).
 Application filed 4 January 2021 (grounds of appeal).
 T page 14 lines 28-31.
 Submissions of Spalding 6 May 20 2021 paragraphs 3 and 4.
 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
 QCAT Act s 64; Lucas v Habul  QCATA 53; Noonan v Osborne and Body Corporate for Spinnaker CTS 40812  QCATA 130.
 Worthington v Ryan  QCATA 192.
 QCAT Act s 143(3).
 Form prescribed for application for leave to appeal.
 Paragraphs 4 to 9.
 RD page 2 lines 12-15.
 RD page 2 line 25.
 RD page 7 line 26.
 RD page 5 lines 18-20.
 RD page 7 lines 19-20.
 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151; Myers v Medical Practitioners Board (2007) 18 VR 48 at .
 QUYD Pty Ltd v Marvass Pty Ltd  1 Qd R 41; Felton & Anor v Raine and Horne Real Estate  QCATA 330 at .
 Robinson v Corr  QCATA 302 at .
 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151.
 Fox v Percy (2003) 214 CLR 118 at 125-126; JM v QFG and KG  QCA 228 at p 20 per Pincus JA; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479.
 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at ; In Re W (an infant)  AC 682 at 700 per Lord Hailsham; Secretary of State for Education and Science v Tameside Metropolitan Borough Council  AC 1014 at 1025.
- Published Case Name:
Spalding v Filipetto
- Shortened Case Name:
Spalding v Filipetto
 QCATA 56
Dr J R Forbes
03 May 2022