Angelopoulos v Evolve Skateboards

[3] The minor debt claim was dismissed on the following bases:

(a) The original application did not refer to any provisions of the Australian Consumer Law ('ACL');

(b) The appellant's assertions that his injuries required hospitalisation and caused a permanent partial loss of range and function in his right arm were unsupported by the evidence provided;

(c) The appellant did not sufficiently particularise his use of the Civil Liability Regulation 2014 (Qld) to quantify his loss or the damages sought (this claim was made in the respondent's application for dismissal);

(d) The appellant did not provide any basis on which the refund was sought, or evidence for his assertion that the scooter's remote control was faulty and this was the cause of his injury;

(e) The application therefore lacked substance.

[4] The application for leave to appeal or appeal was lodged on 16 February 2024. The appellant relies on the following:

(a) the appellant was denied procedural fairness in that he was not given a fair opportunity to present his case or consider additional evidence that was 'relevant and forthcoming' ('ground 1');

(b) the respondent provided false or misleading information ('ground 2');

(c) the decision potentially breached the Human Rights Act 2019 (Qld), specifically the right to a fair hearing and equality before the law ('ground 3');

(d) the Tribunal made 'errors in both the factual understanding and legal interpretation' of the case ('ground 4');

(e) the respondent was permitted legal counsel and the appellant was not ('ground 5');

(f) the Tribunal did not consider all relevant material ('ground 6');

(g) the dismissal was discriminatory considering the appellant's health and disability issues ('ground 7').

[5] An appeal is not a rehearing and is not an opportunity to tender further evidence in an attempt to further argue the original dispute. It is an application concerning a legal or factual error made by a decision-maker.[1]

[6] A party to a proceeding may appeal to the Appeal Tribunal against a decision of the Tribunal in the proceeding.[2] Leave is required if the appeal involves a question of fact or mixed law and fact.[3] The principles to be applied in considering whether leave to appeal should be granted are:

(a) Is there a reasonably arguable case of error in the primary decision?[4]

(b) Is there a reasonable prospect that the applicant will obtain substantive relief?[5]

(c) Is leave necessary to correct a substantial injustice to the applicant caused by some error?[6]

(d) Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[7]

[7] If leave to appeal is granted, in deciding the appeal on a question of law the Appeal Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision or set aside the decision and remit the matter to the Tribunal for reconsideration.[8] The Appeal Tribunal may set aside the decision and substitute its own decision only if this results in the disposition of the appeal entirely in the appellant's favour.[9] An appeal on a question of fact or mixed law and fact must be conducted by way of rehearing.[10] The Appeal Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision or set aside the decision and remit the matter to the tribunal for reconsideration.[11]

Procedural fairness and error of fact and law grounds - grounds 1, 4, 5 and 6

[8] Grounds 1, 5 and 6 all relate to the denial of procedural fairness (also called natural justice).

[9] Ground 4 asserts the Tribunal made 'errors in both the factual understanding and legal interpretation' of the case.

[10] Like any other legal claim, a claim that procedural fairness has not been afforded to a party must be supported by particular evidence. For such a claim to succeed the claimant must provide specific instances of behaviour or circumstances in which a party has been deprived of procedural fairness. It is not sufficient to make a blanket claim of unfairness because a party is dissatisfied with the result of a hearing or has a subjective feeling that justice has not been done.[12] It is also not an appellable error to prefer one version of the facts to another or to weigh a party's submissions with more or less weight than the party thinks it ought to receive. If a factual finding has rational support on the evidence, even if another rational view is available this is not a ground for appeal. A decision cannot be called erroneous simply because one rational explanation has been preferred to another.[13] Indeed, to choose between multiple competing rational arguments is an essential part of a Tribunal member's role.

[11] It is true that there was no specific basis for the original claim, as determined by the magistrate. At no point in the proceeding below did the appellant articulate what the claim actually was or why the respondent was liable to pay damages.

[12] In the current appeal proceeding, no supporting evidence has been filed in support of grounds 1 or 6.

[13] There is no evidence the magistrate hearing the application for dismissal failed to consider any evidence or submissions on file that would have substantiated the claim. In his submissions filed 28 May 2024, the appellant states:

The Applicant seeks an opportunity to present evidence that was previously not provided due to the procedural focus on the dismissal application. The substantive evidence includes detailed records and documented incidents, which are essential in proving the claim on the balance of probabilities.

[14] As stated, an appeal proceeding is not an opportunity to further argue the original claim. If the substantive evidence the appellant sought to rely on had not been filed at the time of the hearing, the magistrate's failure to consider it is not a mistake of law or fact and cannot be appealed.

[15] As to the fairness of deciding the dismissal application before the appellant had filed that substantive evidence: the appellant had the opportunity to file any such substantive material at any point in the proceeding. The application for dismissal was filed on 18 November 2022 via a Form 40 - Application for miscellaneous matters. In this application the respondent stated:

The Application...does not provide any reason as to why those orders should be made. Part E simply refers to attached documents which do not include any explanation of the claim.

[16] The appellant was notified by an order made 18 January 2023 that the Application for miscellaneous matters would be determined by an oral hearing in March. That hearing date was adjourned to April, then May, due to the appellant's health issues.

[17] In the meantime the appellant filed further submissions as to jurisdiction, but nothing that went toward the substance or underlying basis of his claim. He was, essentially, on notice that the substance of the claim had been challenged, noting that, if the application to dismiss the minor debt dispute proceeding was granted, the proceeding would end. At a mention on 17 May 2023 the magistrate put to him that he had not addressed a number of the issues raised in the dismissal application, and provided him time to provide further submissions responding to those issues - i.e., substantive submissions.

[18] Despite this notice the appellant failed to provide specific allegations about any conduct or omission by the respondent that justified his claims under the ACL for a refund and damages.

[19] A decision-maker failing to address the existence of every single document filed in a proceeding is not demonstrably an appellable error. If the reasons for a decision do not refer to a document, this is not evidence that the document was overlooked. Rather, the more likely inference to draw is that the decision-maker did not consider it relevant or sufficient to outweigh other documents on which the decision was made. This is not to say that any documents not mentioned in the reasons for the decision were given less consideration, but rather that they were considered and found to be less probative.[14]

[20] As regards the appeal, the appellant has not filed any particularised information about the magistrate's conduct. The grounds outlined above are merely asserted, with no submissions outlining a specific error in fact or law that the magistrate made and how that error resulted in the appellant being denied procedural fairness. Grounds 1 and 6 cannot succeed.

[21] The consideration of grounds 1 and 6 in paragraphs [10] to [20] of these reasons applies also to ground 4. Ground 4 cannot succeed.

[22] The Tribunal below ordered on 28 March 2023 that the respondent be granted leave to be represented for the purpose of the hearing of the dismissal application. The order did not mention the appellant. The respondent subsequently appeared at the final hearing with representation, and the appellant was self-represented.

[23] The default position in the Tribunal is that parties represent themselves and must apply to the Tribunal to be represented in proceedings.[15] Usually, when an order allowing a party to be represented is made, it is customary to extend that leave to both parties. The effect of such an order is that, even if one party does not wish to be represented, they have the same opportunity to seek representation as the party which has successfully applied for it, more easily ensuring procedural fairness.

[24] I am unsure why such an order was not made in this case.

[25] However, it is immaterial for the purposes of this appeal. The order of 28 March 2023 was a discrete order by the Tribunal, though an interlocutory one, and should have been appealed within its own 28-day time limit. It cannot be appealed in conjunction with the decision to dismiss the minor debt dispute application, which was made on 8 December 2023.

[26] If the appellant intended to appeal the decision about representation, that should have been the subject of a separate appeal application, with an accompanying application for an extension of time to file that appeal.

[27] Further, I note a party not being granted leave to be represented does not preclude them from seeking and acting on legal advice. Leave for representation applies only to proceedings, i.e. hearings. The appellant could have sought legal assistance in preparing his application and any submissions.

[28] I also note, as the appellant raised this in communications with the Tribunal, the characterisation of the matter as 'complex' or 'simple' for representation purposes by the different members who presided over the proceedings is not, alone, an indication of a conflict of interest within the Tribunal, nor does it justify either of the members recusing themselves from hearing the proceeding. It is merely a matter of a valid difference in judicial opinion.

[29] This ground asserts the respondent provided false or misleading evidence to the Tribunal. It cannot succeed for two reasons.

[30] The first reason is adequately explained by two cases: in Amos v Fett & Anor[16] the Tribunal stated:

Merely acting on "wrong" facts or not giving enough weight to the applicant's claims are not recognised categories of appellable error. It is not enough, for example, for a losing party to show that their version of events was just as (or arguably more) plausible than the opposing accounts, but for some reason they do not understand or will not accept, the tribunal fell for the other side's fabrications.

...

This restriction may seem harsh or arbitrary to some applicants, but it is grounded in sound public policy and aimed at conserving the tribunal's finite judicial and administrative resources as well as promoting finality of litigation.[17]

[31] And in Azzopardi v Tasman UEB Industries Ltd[18] it stated:

If there is evidence, or if there are available inferences which compete for the judge's acceptance, no error of law occurs simply because the judge prefers one version of evidence to another or one set of inferences to another. This is his function. ... Even if the evidence is strongly one way the Appeal Court may not intervene simply because it reaches a different conclusion....[19]

[32] Secondly, whether or not the respondent provided false or misleading information to the Tribunal, the onus is on the appellant to demonstrate what information the respondent provided to the Tribunal was misleading or false. The appellant has not filed substantive submissions addressing this.

Human rights and discriminatory grounds - grounds 3 and 7

[33] These grounds assert the decision was a contravention of the Human Rights Act 2019 (Qld) and discriminatory against the respondent given his health issues and disability issues.

[34] Discrimination forms a ground of appeal only where the discriminatory action leads to a decision-maker making a mistake in law or fact. A claim in discrimination does not form a ground of appeal in itself but is a separate type of claim.[20]

[35] Even were they appeal grounds in and of themselves, these claims are insufficiently particularised. In an email to the Tribunal on 26 April 2024 the appellant cites 'potential breaches of sections 15 and 31' of the Human Rights Act 2019 (Qld) but fails to address the causal connection between a specific action of the magistrate, how that action failed to provide the appellant recognition and equality before the law or a fair hearing, and the damage suffered by the appellant as a result. I reiterate that:

(a) the appellant was provided notice for the hearing at which the respondent's application for dismissal would be decided;

(b) the appellant had been served with that application and knew the basis of the application was the respondent's assertion he had failed to file substantive material in the proceeding;

(c) the appellant had the opportunity to file his substantive material at any point in the proceeding and was encouraged to do so by the magistrate on 17 May 2023;

(d) the magistrate decided the application, as he was entitled and expected to do, on the basis of the documents provided.

[37] The grounds alleged by the appellant are unsubstantiated. Leave to appeal the decision below is refused. The application for leave to appeal is dismissed.

[1] Ramsay v Earl [2025] QCATA 29 [19].

[2] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(1) ('QCAT Act').

[4] QUYD Pty Ltd v Marvass Pty Ltd [2008] QCA 257; [2009] 1 Qd R 41.

[5] Cachia v Grech [2009] NSWCA 232 [13].

[6] QUYD Pty Ltd v Marvass Pty Ltd [2008] QCA 257; [2009] 1 Qd R 41.

[7] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578, 580.

[9] Ericson v Queensland Building Services Authority [2013] QCA 391.

[12] Robinson v Corr [2011] QCATA 302 [7].

[13] Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151 ('Azzopardi'); Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at 125-126; JM v QFG and KG [1998] QCA 228 at 20; Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 at 479.

[14] Martin & Anor v Chadia Chalmers Realty Pty Ltd [2020] QCATA 164 [46], citing Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 269, 270.

[15] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 43.

[16] [2016] QCATA 120.

[18] (1985) 4 NSWLR 139.

[20] X v Q [2011] QCAT 453.