Ostopowicz v Amity Traders Pty Ltd
[2024] QCATA 133
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- Unreported Judgment
- Ostopowicz v Amity Traders Pty Ltd[2024] QCATA 133
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Ostopowicz v Amity Traders Pty Ltd[2024] QCATA 133
Ostopowicz v Amity Traders Pty Ltd[2024] QCATA 133
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Ostopowicz v Amity Traders Pty Ltd [2024] QCATA 133 |
PARTIES: | CHRISTINE OSTOPOWICZ (applicant) AMITY TRADERS PTY LTD (respondent) |
APPLICATION NO: | APL099-22 |
ORIGINATING APPLICATION NO: | MCDO874-2021 |
MATTER TYPE: | Other minor civil dispute matters |
DELIVERED ON: | 26 November 2024 |
HEARING DATE: | 29 May 2024 |
HEARD AT: | Brisbane |
DECISION OF: | Dr J R Forbes |
ORDERS: | The application for leave to appeal is dismissed |
CATCHWORDS: | MINOR CIVIL DISPUTE – claim for damage arising out of the use of a vehicle – incident on a vehicular ferry – damage caused by contact between motor vehicle and side of ferry – applicant alleges that collision due to directions given by respondent’s deckhand – applicant alleges that directions were negligent or unskilful – action by applicant against respondent company – application dismissed – applicant seeks leave to appeal against that decision – decision really one of fact and credit – application for leave to appeal dismissed. Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 11 and Schedule 3 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Boynes v Brown Group Personnel Pty Ltd [2015] VSC 702 Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462 Devries v Australian National Railways Commission (1993) 177 CLR 472 Drew v Bundaberg Regional Council [2011] QCA 359 Felton & Anor v Raine and Horne Real Estate [2011] QCATA 330 Fox v Percy (2003) 214 CLR 118 JM v QFG and KG [2000] 1 Qd R 373 McAuliffe v Secretary, Department of Social Security [1991] FCA 268 Manonai v Burns [2011] WASCA 165 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 25 Sydney United Football Club v Soccer NSW [2005] NSWSC 474 |
APPEARANCES & REPRESENTATION: | Applicant Self represented Respondent: Mr S Wallace |
REASONS FOR DECISION
Introduction
- [1]This is a Minor Civil Dispute in the technical sense and in reality. The resources of the tribunal, publicly funded, were expended at first instance, and on appeal, upon a claim for $1,346.27.
- [2]The applicant Ms Christine Ostopowicz (‘Ostopowicz’) resides on Coochie Mudlo, an island in Moreton Bay.
- [3]The respondent operates a vehicular ferry service (‘Amity’) between Coochie Mudlo and Victoria Point. Steve Wallace is effectively the proprietor of that business.[1]
The accident
- [4]On 7 May 2021 Ostopowicz, driving Toyota sedan 577ZLG, embarked on Amity’s vessel at Coochie Mudlo en route to Victoria Point. She describes her embarkation as follows:
I was … under the direction of a staff member who directed me … where to park my vehicle as I drove onto the barge. Before I backed my car into the space I advised Connor Davis [the deckhand] I did not want to park my car on the left hand side of the barge. He advised don’t worry [sic] I will direct you all the way. … My car became damaged by a sign attached to the side of the barge due to how I was instructed to move my car to the specific spot I was assigned to park in. As I was moving my car into the spot I felt it was stuck on something and I advised Connor of this. He told me to reverse my car back a little and I advised I did not want to move my car backwards as I could sense it was stuck. He insisted that I move it back a little and I heard the scrape of the sign. … He heard the scrape too and I told him this was why I did not want to move my car. He said there was no damage [but] I got out of the car and I could see [it] had been damaged. … I contacted Steve Wallace and he advised he would take care of it.[2]
- [5]But Wallace did not ‘take care of it’, if indeed he made such a promise. And so Ostopowicz began these proceedings on 12 August 2021.
- [6]Liability was denied:
We disagree with the fact that it was the deckhand [sic] fault due to the due to the applicant turning the vehicle the opposite way to the instructions that they [sic] were being given by the deckhand which caused the damage.[3]
The competing versions
- [7]The only viva voce evidence for the applicant was given by Ostopowicz . Substantially it accords with the endorsement on her initial application. She sees contrary views as not merely mistaken, misinformed or simply wrong, but as lying[4] or fraudulent.[5] That attitude towards parties who happen to disagree with her does not assist her case.
- [8]In support of her position she produced unsworn statements by a Mr Ian Rowland and a Ms S Lupton .
- [9]Lupton describes herself as Ostopowicz’ ‘support worker’. Lupton was not with Ostopowicz at the material time. She simply recites Ostopowicz’ account of the event in question and offers her assessment of the applicant as ‘honest, upfront and very clear on her communications’.
- [10]Rowland’s brief statement recounts an experience with Amity’s ‘inadequate and confusing’ directions when he (Rowland) allegedly suffered slight damage on the ferry ‘approximately ten years ago’. He offers no evidence that the same staff were involved on that occasion, and he did not witness the event now in question. Rowland’s venture into similar fact evidence is irrelevant and of no assistance.
- [11]Nor was Mr Wallace a witness on 7 May 2021. He recites the account of Connor Davies, a member of the crew, as recorded by the master of the vessel, Chris Brown, on the day of the incident. Brown states:
White Toyota … reversed into bulwark and caught front left side … front bar dislodged … witness to the incident Connor Davis on deck. Submitted to Stew Wallace, owner, on 7.5.21.[6]
- [12]At the trial Ostopowicz, in unsworn evidence, developed her case:
I was being directed by their employee, Connor Davies, who’d only been on the job, I found out, one week. He made me go to a spot that I did not want to [go to].[7]
The accident already happened … because Connor Davies made me go there, turning – telling me to turn the wheel every inch. I was crawling, and he made me go there. When I said it’s stuck from his directions, he came into my window and said reverse, and I said, ‘I don’t want to reverse because it’s stuck. Go and look at it. … The accident already happened going onto the vehicle before we left on the other side because Connor Davies made me go there, turning – telling me to turn the wheel every inch. I was crawling, and he made me go there. When I said it’s stuck from his directions, he came into my window and said reverse, and I said, ‘I don’t want to reverse because it’s stuck. Go and look at it. … Look what you’ve done’.[8]
[B]efore he made me reverse, he made me drive too close to the side when I didn’t want to, and then when I said – and I’m inching, half inch at a time, and when I said, ‘It’s now stuck’.[9]
- [13]Asked by the Adjudicator why she did not obtain, or try to obtain, statements from other passengers on the ferry, Ostopowicz said that she could not get of her car[10], or otherwise communicate with them. But in her initial application she states: ‘I got out of my car to inspect it and I could see that it had been damaged.’[11]
- [14]The fact of damage is not in dispute. The real question is who is responsible for it.
- [15]In interlocutory proceedings Ostopowicz applied for production of CCTV recordings and a list of her co-passengers names. The first request failed because, as the Adjudicator found, cameras were not in use at the material time.[12] The application for a passenger list was dismissed, presumably because no such document existed.[13] After all, there is a difference between a 10-minute ferry ride on the Bay and a Trans-Atlantic flight.
- [16]Wallace, for Amity, called no witnesses but made submissions based on what the ferry master or Connor Davies had told him:
Mrs Ostopowicz drove onto the barge and drove into the side of the barge and damaged her car.[14]
[I]t wasn’t the deckhand’s fault. Mrs Ostopowicz just drove into the barge. So I can’t help that.[15]
Mrs Ostopowicz drove on the Coochiemudlo side and put the front left side of her car up against the bulkhead, and then when the deckhand said, ‘You’re up against the boat’, and asked her to back out, he said go right – left-hand down. So Mrs Ostopowicz went right-hand down and then put her fender in against the frame of the boat and then popped the fender off. So she did the opposite to what the deckhand requested, who had been in the job for six months, not a week.[16]
And then [Davies] said, “Put your left hand down on the wheel and back out slowly”. Instead, Mrs Ostopowicz put her right hand down, turned the wheel the opposite way, which angled the car into the frame on the edge of the barge, and when she backed out, she damaged the front left fender. Once again, she was asked to stop and listen for instructions, but she became very agitated and started abusing the crew …’[17]
[W]hen Mrs Ostopowicz rang me about the incident, I suggested that she contact her insurance company if she wishes to make a claim. There was no use pursuing us because she damaged the car. … [I]f you like, I’ll send you a bill for the damage you’ve done to the barge.[18]
- [17]Mrs Ostopowicz informed the Tribunal that no insurance indemnity was paid. No reason for this was given; it may be that she fell afoul of an excess clause. This information is not disputed.
- [18]When the hearing came to an end the evidence – in the most liberal sense of that term – was scarcely in a satisfactory state. Of course the direct and relevant account of Ostopowicz , for whatever it is worth, is evidence, but it is clear on reading the transcript that what the Adjudicator had in mind in his references to ‘no evidence’ was the absence of supporting or corroborative evidence on the ultimate issue – namely, responsibility for the accident. The need for supporting evidence on points in issue is repeatedly referred to in the primary proceedings.[19] Evidence on undisputed points is unnecessary and irrelevant; much of the applicant’s material is in that category.
Primary judgment
- [19]The Adjudicator’s reasons are succinct:
At the end of the day, she is responsible for how her car is driven. … [S]he says she was directed by someone to park too close to the bulwark, which meant that when she was forced to reverse by the same person, she caused damage ... [Amity says that] she did not follow the directions given by the deckhand [but] actually did the opposite of what he requested her to do … Unfortunately she did not think to get any witness statements, and there is no evidence to support her allegations. That being the case, we have two different reports … [I]t is the applicant’s responsibility … to prove on the balance of probabilities that her version of events is correct. … [S]he has no evidence in support of her claim … I cannot be satisfied on the balance of probabilities that the deckhand was responsible for the accident. … So in circumstances where the applicant cannot establish their claim the Tribunal has no choice but to dismiss their application.[20]
Consideration
- [20]The applicant complains that the subject decision cites no “legislation or applicable law”[21] But this is not a case that requires a recondite lecture on legal theory. On the contrary it turns entirely upon the decision maker’s assessment of facts and credit. It is the decision upon a minor claim by a tribunal where primary rulings are normally expected to be given ex tempore.[22] The Tribunal is not expected to emulate a reserved judgment of a superior court.[23]
- [21]When the law is straightforward and a decision really turns on the facts, reasons may be sufficient although legal authority is not cited.[24] In such cases primary decisions are seldom disturbed[25] and assessments of credit that are not ‘glaringly improbable’ are similarly difficult to displace.[26] Findings of fact are for the trial judge; that is his task.[27]
- [22]An application for leave to appeal is not an opportunity to re-try the case presented at trial, or to `second guess’ the primary decision-maker. Rather, it is limited to a search for errors of law, if any, that may have resulted in serious injustice.[28] It is not nearly enough for an applicant for leave to entertain a subjective feeling of dissatisfaction. It is not an error of law to prefer one party’s version to another, or to give less weight to evidence than a party thinks it should receive:
If there is evidence ... no error of law occurs simply because the judge prefers one version of evidence to another, or one set of inferences to another. That is his function ... Even if the evidence is strongly one way the appeal court may not interfere simply because it reaches a different conclusion … even if it regards the conclusion of the trial judge as against the weight of the evidence.[29]
- [23]As a distinguished Queensland judge observed:
That this Court merely disagrees with a factual view of a tribunal does not show that a decision based on it is legally erroneous.[30]
- [24]I can discern no reasonably appellable error of law in the decision in question. Leave to appeal must therefore be refused.
ORDER
The application for leave to appeal is dismissed.
Footnotes
[1]Transcript of hearing 21 February 2022 (‘T’) page 22 lines 4-11.
[2]Application filed on 12 August 2021 Part C paragraph 2.
[3]Response filed 21 September 2021 Part C.
[4]See pages 11 line 32, 12(39), 14(43), 16(2), 17(3) and (13), 18(1).
[5]Application for leave to appeal , submissions of applicant page 1 (3).
[6] Incident Report Form , Amity Trader, 7 May 2021.
[7]Transcript of hearing 21 February 2022 (‘T’) page 2 line 19.
[8]T page 4 from line 30.
[9]T page 10 from line 16.
[10] T page 5 line 1.
[11]Application filed 12 August 2021 Part C 2.
[12]T page 22 line 42.
[13]Pre-trial orders of 10 and 16 February 2022.
[14]T page 2 line 46.
[15]T page 3 line 1.
[16]T page 5 from line 34.
[17]T page 11 from line 16.
[18]T page 12 from line 10.
[19]T page 6 line 25, page 22 line 26, page 22 line 34.
[20]T page 22 from line 16.
[21]Application for leave filed 30 March 2022 page 1.
[22]Cf Manonai v Burns [2011] WASCA 165 at 56]; (pressure of work in magistrates court).
[23]Sydney United Football Club v Soccer NSW [2005] NSWSC 474 at [54]; Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462 at 485; Boynes v Brown Group Personnel Pty Ltd [2015] VSC 702 at [30] (medical tribunal).
[24]McAuliffe v Secretary, Department of Social Security [1991] FCA 268 at [10].
[25]Fox v Percy (2003) 214 CLR 118 at 125-126.
[26]Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479.
[27]Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151
[28]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257 at [6]; Drew v Bundaberg Regional Council [2011] QCA 359 at [18]; Felton & Anor v Raine and Horne Real Estate [2011] QCATA 330 at [19].
[29]Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151 per Kirby P.
[30]JM v QFG and KG [2000] 1 Qd R 373 at 391 per Pincus JA.