Brady v Craftview Pty Ltd (t/a Hertz Australia & Anor [2019] QCATA 137

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Brady v Craftview Pty Ltd (t/a Hertz Australia & Anor [2019] QCATA 137 PARTIES: PETER RUSSELL BRADY (appellant) v CRAFTVIEW PTY LTD (t/a HERTZ AUSTRALIA (respondent) HARVEY CAMERON RUDDELL (respondent) APPLICATION NO/S: APL289-18 ORIGINATING APPLICATION NO: Coolangatta MCDO 70 of 2018 MATTER TYPE: Appeals DELIVERED ON: 9 September 2019 HEARING DATE: 5 September 2019 HEARD AT: Brisbane DECISION OF: Dr J R Forbes, Member ORDERS: The application for leave to appeal is dismissed. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – APPEAL - WHEN APPEAL LIES – leave to appeal – minor civil dispute –property damage to vehicles – rear end collision – whether negligence of appellant or respondent – whether any appellable error shown – principles governing appeals from findings of fact - decision not unreasonable or contrary to the evidence - no appellable error – application for leave dismissed Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 11, s 61, Third Schedule Abalos v Australian Postal Commission (1990) 171 CLR 167 Devries v Australian National Railways Commission (1993) 177 CLR 472 Fox v Percy (2003) 214 CLR 118 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 APPEARANCES: The Appellant in person -- 1 of 4 -- 2 For the Respondents: Mr C Robinson of BP Lawyers, Melbourne REASONS FOR DECISION [1] The present casus belli arises from a collision of cars near Loongana Avenue, Bilnga, Gold Coast on 17 July 2017. [2] QCAT’s jurisdiction is founded on section 11 of the QCAT Act, and so much of the definition of `minor civil dispute’ as reads: `a claim for an amount of not more than the prescribed amount for damage to property caused by, or arising out of the use of a vehicle’.1 [3] The car driven by the Appellant Peter Russell Brady (`Brady’) collided with the rear of one owned by the First Respondent (`Hertz’) and driven by the Second Respondent Harvey Ruddell (`Ruddell’). [4] Brady claims that Brady’s car stopped so suddenly in front of him that he (Brady) was unable to avoid a collision. In his notice of minor civil dispute filed on 27 June 2018, about eleven months after the incident, he held the Respondent liable for – All cost of repair [sic] to my motor vehicle, cost of tows of [same], cost of report by Patrick McDonald, cost of seeking legal advice after receiving letter of demand from Master Class Management Service Pty Ltd on 13 November 2017, with a threat to report to a debt against my credit history, lost of registration [sic] of motor vehicle. [5] Brady further seeks – A order [sic] that driver Cameron Harvey Ruddell be charge [sic] with predatory driving or dangerous operation of a motor vehicle which could have cause injure [sic]or death. [6] In all, Brady claims as compensation $14,352.80. [7] The Respondents deny liability and Hertz counterclaims $763 for damage to its vehicle. The Adjudicator exercised his discretion to abbreviate time for service of the counterclaim2; Brady did not seek an adjournment or object, simply responding: `No worries. Thank you’.3 After all, his case against the counterclaim was the same as his case for his claim. Quantum was not an issue on either side, and proper receipts for Hertz’ repairs were tendered.4 [8] In an `Accident Report’ in evidence. dated 17 June 2017, Brady describes the relevant events as follows – About 5.30 pm ... after turning left into Loongana Ave I proceeded to the Gold Coast Highway to make a right hand turn to travel to Coolangatta. Having turned onto the right hand side of the dual highway, after travelling 50m or so a vehicle travelling south behind me approached with its highlights [sic] on high beam and the horn sounding. This made me slow down not knowing what was happening. After some vehicles that were in the left lane ... passed by me [Ruddell’s] vehicle behind moved 1 QCAT Act Third Schedule, `minor civil dispute’ clause (c). 2 QCAT Act s 61. 3 Transcript of evidence 17 October 2018 (`T’) page 5 lines 36-46. 4 T page 18 lines 19-20. -- 2 of 4 -- 3 to the left hand lane, passed me and then within another 20 to 30m crossed over n front of me and stopped suddenly ... I did brake but was not able to stop without hitting the vehicle. I was not expecting a vehicle travelling in front of me to suddenly stop without any reason whatsoever. There were no pedestrians crossing the road or any other vehicle ... to cause the driver to make a sudden stop.5 [9] According to Ruddell, on the other hand, Brady came to a full stop in front of him. Ruddell was able to avoid a collision at that stage. After blowing his horn for some 10 second, Ruddell reversed and drove round Brady’s car, via the left hand lane. Ruddell then returned to the right hand lane6, as he needed to turn right in less than a kilometre. Before he reached his right hand turn, Brady’s car ran into the back of Ruddell’s. That happened about 400 metres from the point at which both cars first stopped.7 [10] There is a sharp difference between the two drivers regarding the precise direction and mode of contact. Brady claims that the damage to his car was to the `front, left- hand side ... [and to] the rear, right-hand part’ of Ruddell’s vehicle.8 Brady contends that this proves that Ruddell `cut across the line’.9 [11] Fifteen months after the collision Brady’s car had not been repaired.10 [12] On the contrary, after examining several photographs tendered for Hertz, the Adjudicator put it squarely to Brady that the damage to his vehicle was `across the full front of your vehicle ... not to one side of it. It’s central, if [as?] I look at’ it.11 [13] The suggested inference is that Ruddell did not `cut across’, and that Brady ran squarely into the back of the Hertz car, when Ruddell slowed or stopped in readiness to make a right-hand turn.12 Brady did not agree. Here, then, is a pure question of fact. [14] Tactfully13 the Adjudicator explained to Brady that QCAT, not being a criminal court, could not deal with the alleged offence of `predatory driving’. It was also pointed out that the Tribunal’s only power was to compensate for property damage, not for consequential losses such as towing costs, legal expenses, or for the hire of an alternative vehicle. [15] In the event the Adjudicator dismissed Brady’s claim and allowed the counterclaim, limited to $763.57. The reasons for decision read in part: I find ... on the basis of the photography, that [Brady’s] vehicle hit the rear of the vehicle driven by Mr Ruddell more or less squarely front-on. ... I don’t accept [Brady’s] evidence that [his] vehicle struck [Ruddell’s] at an angle. ... [T]he objective evidence from this photograph taken at the scene of the collision ... establishes that [Brady’s car was] directly behind Mr Ruddell’s vehicle and ... collided with the rear of the Nissan more or less squarely front-on. Given the obligation to travel at a safe distance behind a vehicle forward of you [Brady and] given the obligation to keep a proper lookout ... [and] given the absence of any indication of evasive action to avoid the collision ... on the balance of probabilities 5 Some punctuation supplied. See also Brady’s version in T pages 5, 7, 9. 6 `Cut across the lady in front of me and then stopped’ – Brady T 9 lines 41-42. 7 T pages 7-9. 8 T page 9 lines 43-45. 9 Ibid line 45. 10 T page 16 lines 17, 26. 11 T page 10 lines 3-4. 12 T page 21 line 40 (Ruddell). 13 T page 18 lines 41-44, page 19 lines 29-30, -- 3 of 4 -- 4 I find that the collision with the rear of his vehicle from behind was the consequence of your [Brady’s] negligence, not his.14 [16] These are essentially findings of fact and credit, which are the prerogative of the primary Tribunal. As to credit, Brady’s occasional displays of aggressive hyperbole may have had some effect. Twice, witnesses with whom he happened to disagree were branded liars,15 and Ruddell, though struck from behind, was accused of `predatory driving’16 and `deliberately’ causing the collision.17 [17] Brady now seeks to have the above findings of fact set aside. That is not a course open to an appeal tribunal. An application for leave to appeal is not an opportunity to re- run the trial, or to `second guess’ the primary judge. The very reason for the need to obtain leave to appeal is that decisions in cases of this kind are normally meant to be final. Indeed, at all levels of adjudication findings of fact are seldom set aside. Before that is done, it must be shown that the decision in question is `glaringly improbable’ or contrary to compelling evidence.18 Contrary to Mr Brady’s submission that cannot reasonably be said in this case. Clearly there was evidence upon which the findings in question could be reached. Even when there are two reasonable views, a preference for one view over the other is not an appellable error.19 [18] There are no reasonable prospects of a successful appeal, and the application for leave must be dismissed. Order [19] The application for leave to appeal is dismissed. 14 T page 29 line 24 ff, page 30 lines 1-6. 15 T page 15 line 3, page 23 line 12. 16 Particulars of claim, as noted in T page 19 line 29. 17 T page 21 line 9. 18 Fox v Percy (2003) 214 CLR 118 at [28]-[29]; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178-179. 19 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at [131]. -- 4 of 4 --