Claytons Towing Pty Ltd v Vaughan [2026] QCATA 87

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Claytons Towing Pty Ltd v Vaughan [2026] QCATA 87 PARTIES: CLAYTONS TOWING PTY LTD (applicant/appellant) v DAVID VAUGHAN (respondent) APPLICATION NO: APL364-25 ORIGINATING APPLICATION NO: Q10916-24 MATTER TYPE: Appeals DELIVERED ON: 19 May 2026 HEARING DATE: 14 May 2026 HEARD AT: Richlands Courthouse DECISION OF: Member Chapple ORDERS: 1. Leave to appeal is refused. 2. The appeal is dismissed. CATCHWORDS: APPLICATIONS FOR LEAVE TO APPEAL AND APPEAL AGAINST MINOR CIVIL DISPUTE DECISION – whether there is a reasonable argument there is an error to be corrected, whether the appeal is necessary to correct a substantial injustice, whether the appeal raises a question of general importance – whether appeal grounds raise questions of law, fact, or mixed law and fact APPLICATION FOR LEAVE TO RELY ON ADDITIONAL EVIDENCE – whether evidence could have been obtained with reasonable diligence for use in the proceeding below – whether evidence is important to the outcome of the proceeding – whether evidence is credible Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 12(4)(d), s 142(3)(a)(i) Collins v Urban [2014] NSWCATAP 17 Rintoul v State of Queensland & Ors [2018] QCA 20 Willmott v Carless [2021] QCATA 132 APPEARANCES & -- 1 of 9 -- 2 REPRESENTATION: Applicant: Self-represented Respondent: Self-represented REASONS FOR DECISION Background [1] The Tribunal below, exercising its minor civil disputes jurisdiction, ordered Claytons Towing Pty Ltd (‘the Applicant’) to pay Mr Vaughan (‘the Respondent’) a sum of money for damage caused by the Applicant’s tow truck to part of a driveway on the Respondent’s property (‘the MCD decision’). The action arose from an incident where a removals truck, booked by the Respondent’s vacating tenant, lost traction in rain conditions on a slippery and steep section of the driveway and required towing to be safely retrieved. The driver of the removals truck called the Applicant and requested the tow. The tenant alerted the Respondent to the incident and damage later the same day, after the retrieval operation had been completed. [2] The Applicant filed an application to appeal the MCD decision and, at the same time, an application seeking the Appeal Tribunal’s leave to do so. [3] The Applicant later filed an application for leave to rely on additional evidence stored on a USB: a video recording of the retrieval operation captured by a camera mounted on the tow truck, and an audio recording of the phone call from the driver of the removals truck to the Applicant requesting the tow. [4] An oral hearing occurred at the Applicant’s request. Both parties appeared in person, with Mr Daley representing the Applicant. [5] I explained to the parties that I would hear and decide the additional evidence application at the start of the hearing; and I would then hear the applications for leave to appeal and appeal together and reserve my decisions on both. Application for leave to rely on additional evidence [6] I invited the parties to make submissions about the additional evidence application. I decided to allow the application and admit the additional evidence, giving the following explanation and reasons to the parties: (a) For such an application I must consider: 1) whether the evidence could have been obtained with reasonable diligence for use in the proceeding below; 2) whether the evidence is important to the outcome of the proceeding; and 3) whether the evidence is credible. (b) I consider the evidence existed at the time of the hearing of the proceeding below. The Applicant brought the USB to the hearing and attempted to rely on its contents, however the Adjudicator explained that the USB could only be accepted by the Tribunal if the Applicant had first made an application certifying that the USB did not contain a virus. The Applicant had failed to do this, and the Adjudicator did not accept the USB. Had the Applicant exercised reasonable diligence in complying with the Tribunal’s requirements, it is highly likely the Adjudicator would have accepted the USB and considered its contents. -- 2 of 9 -- 3 (c) Prior to the appeal hearing, I watched the video and listened to the phone call. I consider both to be directly relevant to the facts in dispute and of high probative value given they are independent and contemporaneous records of the incident. I consider the importance and credibility of the evidence outweighs the Applicant’s failure to exercise reasonable diligence. Consideration [7] The law requires an applicant appealing a decision of the Tribunal below exercising its minor civil dispute jurisdiction to first obtain the Appeal Tribunal’s leave to appeal.1 [8] For leave to be granted by the Appeal Tribunal, the Applicant must show: (a) There is a reasonable argument there is an error to be corrected; and (b) The appeal is necessary to correct a substantial injustice.2 A “substantial miscarriage of justice” may have been suffered where there was a significant possibility that a different and more favourable result would have been achieved;3 or (c) Where the appeal raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage.4 Is there a reasonable argument there is an error to be corrected? [9] An error means an error of law, an error of fact, or an error of mixed law and fact. [10] The Applicant argues the Adjudicator made the following errors: (a) The Adjudicator said at the start of the hearing he was time poor. (b) The Adjudicator failed to take account of the pre-existing damage to the driveway. (c) The Adjudicator failed to take account of the evidence pointing to the removals truck having caused the damage to the driveway. (d) The Adjudicator drew incorrect inferences from the evidence and incorrectly found the tow truck caused the damage to the driveway. (e) The Adjudicator failed to take account of the skill used by the tow truck operators in the retrieval operation. [11] I deal with each of these arguments below. The Adjudicator said at the start of the hearing he was time poor [12] The suggestion is the Adjudicator did not have enough time to consider the evidence and, given the other alleged errors, failed to do so. 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(3)(a)(i). 2 Rintoul v State of Queensland & Ors [2018] QCA 20, [10]. 3 Collins v Urban [2014] NSWCATAP 17, [74]–[79]. 4 Willmott v Carless [2021] QCATA 132. -- 3 of 9 -- 4 [13] This raises a question of law for an alleged failure to afford procedural fairness and to properly consider the evidence, however because it calls into question the entirety of the proceeding, it may also raise questions of fact involved in the Adjudicator reaching his determination. [14] The relevant part of the hearing transcript reads: [Adjudicator] …The Tribunal’s role is to deal with these claims, probably the best description of it is that it’s a bit of an inquisitorial process, unlike a normal court case where I just sit back here and listen to you and listen to you. The reality is we don’t have the luxury of time. So part of what our role is to examine the material beforehand, be familiar with it and try to get to the nub of the case as quickly as we can. So anything I say is on the basis of what I’ve read and seen. If I say anything wrong, let me know. All right?5 [15] The Adjudicator here is explaining the Tribunal process to the parties. Using different words to the same effect: the Tribunal is different from a court; he will be actively involved and asking questions; limited time requires efficiency, good preparation and a thorough understanding of the case ahead of the hearing; and the parties are invited to correct any misunderstanding he may have of the case. [16] I note the objects of the Act governing the Tribunal include having the Tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick.6 [17] The Adjudicator is endeavouring to ensure the parties understand the process, his role and their role. I note the transcript reveals other instances during the hearing where the Adjudicator has taken the time to explain to the parties jurisdictional issues, the requirements for filing USB evidence, and the need to allow each party to speak without interruption. [18] I note the audio recording indicates the hearing commenced at 2:24:18 PM and concluded at 3:28:59 PM, a period of over an hour. There is no evidence the Adjudicator has not allowed the parties sufficient time to put their case nor allowed himself sufficient time to examine and interrogate the evidence. [19] I find there is no reasonable argument there is an error of law or error of mixed law and fact to be corrected. The Adjudicator failed to take account of the pre-existing damage to the driveway [20] This is a curious argument because the essence of the Applicant’s case is the damage was caused by the removals truck, not the tow truck. On that basis, logic dictates the Applicant would not need to concern itself with the pre-existing condition of the driveway. Putting that to one side, the argument raises a question of mixed law and fact for an alleged failure to take certain evidence into account and making a consequent finding of fact. 5 Hearing transcript, page 1, lines 30-36. 6 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3(b). -- 4 of 9 -- 5 [21] The relevant parts of the transcript read: [Respondent] The driveway by absolute all admissions was cracked. [Adjudicator] Yes. [Respondent] But it was perfectly serviceable. I’ve been using it for years. I’ve had delivery drivers. I’ve even had fire engines up there, never had any problems. This was because a 22 tonne truck went on top of that existing cracked driveway and churned it up. The have made it unserviceable. So the bottom line is I couldn’t use the driveway. My new tenant moved in and he couldn’t get up the driveway after these guys were finished towing. [Adjudicator] All right. …7 [Adjudicator] …Mr Vaughan does not argue that the driveway was in pristine condition, and on the photographs, particularly photograph 8, do show that there were surface cracks in other parts of the driveway, and possibly in the immediate area where the damage was caused. Mr Vaughan’s evidence is that, notwithstanding the surface cracking, the driveway did accommodate a significant range of trucks and other mechanical devices without difficulty or damage. My assessment of the photographs would be that it does appear to be damage that was occasioned in the retrieval exercise. It may well be that the wet conditions made that damage, if not inevitable, then highly likely.8 [22] The transcript clearly indicates the Adjudicator took oral evidence from the Respondent during which the Respondent acknowledged pre-existing cracking on the driveway, he examined photographs that revealed the pre-existing cracking, and he took account of the pre-existing cracking in his reasons. The Adjudicator also accepted the Respondent’s evidence that, despite the cracking, the road had accommodated a range of trucks over time until the damage that occurred in the retrieval process, necessitating repairs to make the driveway serviceable. On that basis, the Adjudicator, after further questioning the Respondent, accepted it was necessary to replace the 48 square metre section of the damaged driveway to return it to serviceability and accepted the invoice amount as the appropriate quantum of damage. [23] I am satisfied the Adjudicator has taken account of the pre-existing damage (cracking) to the driveway. [24] I find there is no reasonable argument there is an error of law or error of mixed law and fact to be corrected. 7 Hearing transcript, page 7, lines 35-48, page 8, line 1. 8 Ibid, page 23, lines 19-28. -- 5 of 9 -- 6 The Adjudicator failed to take account of the evidence pointing to the removals truck having caused the damage to the driveway [25] This argument raises a question of mixed law and fact for an alleged failure to take certain evidence into account and making a consequent finding of fact. [26] The Applicant claims the removals truck caused the damage to the driveway in its repeated attempts to gain traction, churning up the bitumen surface with its wheels, before ultimately sliding to the base of the culvert. [27] Mr Daley during the hearing at first instance claimed the damage to the driveway (not the pre-existing cracking, rather the significant post-retrieval damage) was already done when the tow truck arrived. The Adjudicator noted there was no evidence to support that, such as a statement from the tow truck driver. [28] The Adjudicator said in his reasons: There was a suggestion by Mr Daley to the effect that the furniture truck had gone up and down the driveway several times because of its lack of traction. I must say, looking at those photographs, I do not think that I can make that finding.9 [29] Having admitted and viewed/listened to the additional evidence before and during hearing, I must turn my mind to that evidence in the context of determining whether leave to appeal should be granted. This evidence was not before the Adjudicator. [30] First, the audio recording of the phone call from the driver of the removals truck to the Applicant requesting the tow. During the phone call, the driver says: There was a steep driveway we tried to get up. It looked like it would have been okay, but there was a lot of foliage on the ground, I didn’t realise was slippery. We’ve got half way up and then slid down and we’re in a bit of an embankment. We were nearly going to slide off completely, but I’ve been able to straighten it a little bit with the use of some pads and some timber. [31] Mr Daley relies on the comment by the removals truck driver that he got “half way up the road” to support his claim that half way up the driveway is the location of the damage and therefore the damage was caused by the removals truck. [32] I consider the words “half way up the road” was a loose expression used by the driver, with evident distress in his voice, to quickly explain in the moment what had happened to his truck so the person taking the call could assess what would be required for the tow. What is telling however about this contemporaneous account is the driver makes no reference to repeated attempts to gain traction and churning up the driveway in the process; he simply says there was a steep driveway, there was slippery foliage on the ground, the truck progressed some way, then slipped back down. This is consistent with the email sent by the driver to the Respondent on 10 April 2025, which was in evidence before the Adjudicator, and consistent with the Respondent’s oral evidence at first instance that the slippage occurred on the concrete section of the driveway well before the damaged bitumen section. 9 Ibid, page 22, lines 35-38. -- 6 of 9 -- 7 [33] The relevant parts of the driver’s email read: …As you know my truck was UNLOADED and weighs a 3rd of the weight of their 22T tow truck. Which was parked DIRECTLY where the damage occurred. As per photos I sent initially. … I can say with complete confidence and honesty that I never broke traction under their tow. And initially, as mentioned in previous email never got anywhere near the damage point coming up into the driveway before my back wheels lost traction for only seconds sliding back down (as per images sent previously). I was barely on the accelerator when being towed as I was directed by their driver not to be and they pulled me up and used their winch. I was only on the accelerator on the flat of the driveway once they finalised the tow and un hooked me to turn the truck around (as per image you initially sent from your camera with me right behind the tow truck) Well past the damage point and no weight in my truck on the flat section of the driveway. … The photos we exchanged initially clearly show it is where their truck was parked and where they had to anchor down. Weight of their 22T tow truck on this and even wheel width (compared to my small wheels) shows it. … [34] I consider the phone call recording does not assist the Applicant’s case and raises further doubts about the veracity of the Applicant’s claims. [35] Second, the video recording of the retrieval operation captured by a camera mounted on the tow truck. Mr Daley advised me that it is routine for tow operations to be captured on camera. The video records the tow truck travelling to the retrieval site and the process of retrieving and towing the removals truck which, on the arrival of the tow truck, was positioned as the driver described in the phone call. [36] The video recording lacks good clarity, no doubt partly because it was raining during the retrieval operation. That said, at minutes 4:15 to 4:50, the recording reveals, though slightly blurred, the condition of the driveway leading up to where the damage occurred. This could be compared with the various photographs that were in evidence before the Adjudicator. I consider there is no indication of damage consistent with the damage as photographed having occurred prior to the arrival of the tow truck. I also consider, having cross checked the video recording with the photographs, it is most likely the tow truck came to a stop at the location of the damage that was then occasioned by the retrieval operation. This is consistent with the evidence of the removals truck driver in the phone call and later email. [37] I consider the video recording does not assist the Applicant’s case and raises further doubts about the veracity of the Applicant’s claims. [38] I am satisfied there was no credible evidence before the Adjudicator to support the Applicant’s claim that the removals truck caused the damage to the driveway and therefore the Adjudicator did not fail to take account of such evidence. Rather, the Adjudicator rejected Mr Daley’s oral evidence. The additional evidence does not alter this position. [39] I find there is no reasonable argument there is an error of law or error of mixed law and fact to be corrected. -- 7 of 9 -- 8 The Adjudicator drew incorrect inferences from the evidence and incorrectly found the tow truck caused the damage to the driveway [40] This argument raises a question of mixed law and fact for an alleged misinterpretation of the evidence and making a consequent finding of fact. [41] The transcript shows the Adjudicator took some considerable time examining and interrogating the photographs of the condition of the driveway before and after the retrieval operation. The Adjudicator says in his reasons: Mr Vaughan’s complaint is that, after the event, it is discovered that the driveway has been significantly dug up. Perhaps relevance can be [sic] to the photographs on the QCase portal, numbers 12 and 13, which show the area of which Mr Vaughan complains as having been disturbed by the retrieval process…10 My assessment of the photographs would be that it does appear to be damage that was occasioned in the retrieval exercise. It may well be that the wet conditions made that damage, if not inevitable, then highly likely. In all the circumstances, I do accept that the damage was caused by the manner in which the Claytons employee carried out the retrieval exercise.11 [42] I am satisfied the Adjudicator was entitled on the evidence before him to make his findings. The additional evidence does not alter this position. [43] I find there is no reasonable argument there is an error of law or error of mixed law and fact to be corrected. The Adjudicator failed to take account of the skill used by the tow truck operators in the retrieval operation [44] The Applicant appears to be arguing they were not negligent in carrying out the retrieval operation, the correct tow truck was used for the job, and the operators used appropriate skills to ensure the removals truck was safely retrieved. Again, this is a curious argument given the Applicant claims it was the removals truck that caused the damage. Nonetheless, the argument raises a question of mixed law and fact for an alleged failure to take certain evidence into account and making a consequent finding of fact. [45] The Adjudicator says in his reasons: All I have to look at is as to whether or not Mr Vaughan establishes that there was neglect on the part of the operator acting on behalf of Claytons in the retrieval of the vehicle. No evidence has been given as to what other methodology might have been used in the recovery of the vehicle. It seems to me that it could be argued that the retrieval mechanism may have been dealt with with excessive force. It seems to me there is no doubt that the photographic evidence shows that the driveway was churned up over a significant area.12 10 Ibid, page 22, lines 30-33. 11 Ibid, page 23, lines 26-30. 12 Ibid, page 23, lines 11-17. -- 8 of 9 -- 9 [46] I consider the Adjudicator has taken account of the evidence as to how the retrieval operation was conducted and, in finding the Applicant responsible for the damage, has concluded the Applicant failed in its duty of care. [47] I note the Applicant elected not to put into evidence at first instance statements from the tow truck operators, evidence of their qualifications, or expert opinion about how such a retrieval operation should be conducted. [48] I am satisfied the Adjudicator was entitled on the evidence before him to make his findings. The additional evidence does not alter this position. [49] I find there is no reasonable argument there is an error of law or error of mixed law and fact to be corrected. Is the appeal necessary to correct a substantial injustice? [50] Having found there is no reasonable argument there is an error to be corrected, I am satisfied there is no significant possibility that a different and more favourable result would have been achieved and therefore no basis for finding that an appeal is necessary to correct a substantial injustice. Does the appeal raise a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage? [51] The Tribunal below made an order for the payment of damages in circumstances where the Adjudicator was satisfied on the evidence that damage was caused to the Respondent’s property (a driveway) by or arising out of the Applicant’s use of a motor vehicle (a tow truck).13 I have found there is no reasonable argument there is an error to be corrected. I am satisfied the matter does not raise any broader question of general importance to be answered by the Appeal Tribunal that would serve the public advantage. [52] Accordingly, I order that leave to appeal is refused and the appeal is dismissed. 13 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 12(4)(d). -- 9 of 9 --