AAAction Removals and Storage v Robinson [2014] QCATA 129

CITATION: AAAction Removals and Storage v Robinson [2014] QCATA 129 PARTIES: Michael James Lavis t/as AAAction Removals and Storage (Applicant/Appellant) v Sonia Rose Robinson (Respondent) APPLICATION NUMBER: APL451-13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Thomas, President DELIVERED ON: 14 May 2014 DELIVERED AT: Brisbane ORDER MADE: The application for leave to appeal is refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where respondent claimed for damage to goods in transit – where Magistrate found applicant carrier was negligent; that negligence caused damage and ordered compensation – whether applicant carrier negligent – whether damage to goods caused by carrier’s negligence – whether respondent contributory negligent – whether quantum reasonable – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 142(3)(a)(i) Pickering v McArthur [2005] QCA 294, applied Dearman v Dearman (1908) 7 CLR 549, applied Fox v Percy (2003) 214 CLR 118, applied Chambers v Jobling (1986) 7 NSWLR 1, applied -- 1 of 3 -- 2 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] When her mother died, Ms Robinson had a very short time to clear her mother’s home. She hired Mr Lavis to collect her mother’s possessions from Buderim and take them to Tully. [2] When the goods arrived in Tully, Ms Robinson noticed that some of them were damaged. She called on Mr Lavis to compensate her for the damage but he refused. She filed a claim in the tribunal claiming the replacement cost of the goods. A Magistrate, sitting as a member of the tribunal, accepted Ms Robinson’s claim and ordered Mr Lavis pay Ms Robinson the full replacement cost of the damaged goods. [3] Mr Lavis wants to appeal that decision on the bases that the Magistrate erred in finding that he was negligent in the transport of the goods; the Magistrate erred in finding that any negligence in transport led to the loss Ms Robinson claimed. He says that the learned Magistrate erred in failing to find that Ms Robinson caused or contributed to the damage to the goods and overall erred in her assessment of Ms Robinson’s loss. [4] Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.1 The principles the appeal tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as his Honour then was) in Pickering v McArthur: There are numerous authorities, in varying language but with unvarying emphasis, that leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.2 [5] The learned Magistrate heard evidence and submissions on all of the issues Mr Lavis now says are errors. The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.3 An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.4 [6] Ms Robinson gave evidence about the circumstances surrounding the packing of the goods. Her father confirmed her version of events, as did Mr Williams. Mr Hoyle, who appeared as agent for Mr Lavis, told a different story but he did not produce statements from the men who 1 QCAT Act s 142(3)(a)(i). 2 [2005] QCA 294 at [3]. 3 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125- 126. 4 Chambers v Jobling (1986) 7 NSWLR 1 at 10. -- 2 of 3 -- 3 packed Ms Robinson’s goods that day. The evidence can support the learned Magistrate’s finding that Mr Lavis’ agents were negligent in the way they packed the goods. Once the learned Magistrate made that finding, it was a natural consequence that the transport of poorly packed goods would result in damage. I can find no compelling reason to come to a different view. [7] Mr Lavis has consistently claimed that Ms Robinson directed the packing and that she told Mr Hoyle she would not let the goods leave until she was satisfied they had been packed correctly. Ms Robinson said that was ‘a load of rubbish’.5 The learned Magistrate accepted Ms Robinson’s version of events.6 As I have already observed, Mr Lavis did not call the packers to give evidence, so the learned Magistrate had to choose between competing versions of events. The evidence can support the learned Magistrate’s conclusions and I can find no compelling reason to come to a different view. [8] Even if Ms Robinson had directed the packing, the learned Magistrate found that: Mr Lavis had a duty to ensure that the goods were dealt with appropriately; his packers had an obligation to warn Ms Robinson that her method of packing may result in damage; and Mr Lavis could not otherwise abdicate his professional responsibility.7 There was no evidence that Ms Robinson was warned that her packing methods might cause damage. [9] The learned Magistrate accepted Mr Hoyle’s argument that Ms Robinson should not get damages based on “new for old”.8 Ms Robinson supplied quotes to repair what could be repaired.9 She found the “best price” for the replacement freezer.10 There was no evidence about the age of the goods and Mr Hoyle did not challenge the amount of the quotes even though the learned Magistrate invited him to do so.11 The learned Magistrate found that the claims were modest and fair.12 The evidence can support those findings and, although reasonable minds may differ on the calculation of the damages, I can see no compelling reason to make a different order. [10] There is no reasonably arguable case that the learned Magistrate was in error. Leave to appeal should be refused. 5 Transcript page 1-17, line 35. 6 Transcript page 1-28, lines 16 - 21. 7 Transcript page 1-28, lines 12 - 17. 8 Transcript page 1-28, line 26. 9 Transcript page 1-23, lines 15 - 19. 10 Transcript page 1-23, lines 34 - 35. 11 Transcript page 1-24, lines 5 - 6. 12 Transcript page 1-28, line 47 to page 1-29, line 1. -- 3 of 3 --