Ingall v Australian Postal Corporation

QCATA|2025-09-25|Before: Dr J

The applicant has the onus of showing negligence or absence of care. [I accept that] in the context of millions of letters a year, going through airports, going through trucks, going through - all over the country, there is a prospect - it is the nature of postal services that some of them will be lost.[21] ... The mere fact that they have lost the letter does not satisfy me that there has been negligence.[22]

[13] No adverse inference based on res ipsa loquitur was drawn from the admitted fact of loss, although the facts in this case seem less complex than those in the unsuccessful appeal to res ipsa in O'Hara v Kmart Tyre & Auto Service.[23]
[14] Understandably the applicant tends to see his complaint microcosmically, but the tribunal accepted the respondent's submission the loss of one item among millions of others in the postal system did not amount to sufficient evidence to discharge the applicant's onus of proof. The legal concept of negligence displays a remarkable capacity for 'mission creep', but it has not yet reached the stage where every person's misfortune ensures a judgment against any targeted third party with apparent capacity to pay.
[15] The Post did not guarantee delivery. Clause 61B.1 of its statutory terms and conditions, incorporated in the particular contract, reads:

As set out in clause 7B Australia Post will exercise due care and skill in supplying its services. However, the nature of postal services is such that circumstances may impact on the successful delivery of articles.

[16] On the quantum of compensation the tribunal was succinct:

I am not giving you any compensation for the fact that the document was lost by Australia Post because it - the document had no inherent value. It was easily replaced, as you replaced it. The consequences of it not getting to its destination in the ordinary course of the post that you engaged - there was no consequence except that you had to find a replacement for it.[24]

In my view, [regarding] the losses that you associate with your loss of work ... you have provided no evidence other than your statement that you lost work. ... You have not given me any details of what you lost. [Besides] ... in my view, those losses are not reasonably foreseeable. ... You chose to take the document - a replacement document ... to the police personally. That is a decision that you made. That is not necessarily something that you should be compensated for because you took the decision. ... There were alternatives. You did not pursue those alternatives. You should not therefore then be entitled to be compensated for your loss of time in taking the document ... to Brisbane.[25]

[17] Absence of foreseeability of claimed losses was noted several times in the course of evidence.[26] At page 19 a highly questionable claim for $1,568 'basically' for phone calls was discounted.[27]
[18] The reasons for decision are somewhat disjointed, partly because the applicant interrupted and sought to argue with the adjudicator while the reasons were being given.[28] Some of the dicta on matters of detail are somewhat difficult to reconcile. At one point the adjudicator is reluctant to dismiss the application altogether: 'I do not feel right about just simply dismissing this.'[29] Then: 'The correct answer to this, the jurisdictional question aside, is that Mr Ingalls is entitled to compensation for the cost of the service that was not provided.'[30] However, the courts stress that judgments of busy and often overloaded tribunals are not to be subjected to scrutiny appropriate to Supreme Court decisions.[31]
[19] In my respectful opinion, given the tribunal's decisive dismissal of negligent breach of contract and monetary heads of claim, its reference to 'compensation for the cost of the service' points the way to a non-fault solution to this dispute. However, unfortunately for the applicant, it leads to a purely nominal award in his favour. Hence, perhaps, the adjudicator's regret at 'just simply dismissing this' and the respondent's ex gratia offer of $100. At law, as I see it, the applicant's only remaining course is to rely upon a form of action implicit in several of his complaints - namely an action for total failure of consideration.[32] This action sometimes supports large awards, but in the circumstances of this case, alas, it promises very slim pickings indeed. The Post has taken his money and given him nothing for it. Therefore the Post must refund the cost of a service charged for but not supplied, viz $7.91. To that limited extent the order for dismissal of this application must be amended, and there will be an order accordingly.
[20] An application for leave to appeal is not an opportunity to conduct a retrial. It is an inquiry to see whether any reasonably arguable error of law or 'glaringly improbable'[33] error of fact, has resulted in serious injustice.[34] This matter turns upon the primary tribunal's findings of fact; fact-finding is its prerogative,[35] and findings of fact by a trial court are seldom disturbed on appeal. 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.[36] Reasonable minds may differ, but that is not a proper ground of appeal. It is not the function of a tribunal of appeal to substitute its own view for reasonable findings of a primary judge, even if disposed to do so.
[21] Finality is an important legal object,[37] particularly in lower courts where an interminable dispute can too easily result in costs and inconvenience out of all proportion to the interests involved.
[22] I discern no reasonably appellable error in the decision under appeal. The application is dismissed, subject to the foreshadowed minor change in the order of 17 July 2024.
[23] I note that the respondent has offered, without prejudice, to make an ex gratia payment of $100 to the applicant. Counsel informs me that that offer remains open. Its rejection or acceptance is entirely a matter for Mr Ingall.

The order made herein on 17 July 2024 is set aside.
In lieu thereof it is ordered that the respondent pay the applicant Ingall the sum of $7.91 within 14 days.
No order as to costs.

[1] Transcript of hearing 17 July 2024 ('T') page 20 line 9 (Ingall).

[7] T page 26 line 25, page 27 line 30, page 28 line 36, page 46 line 32.

[11] Terms made in accordance with the Australian Postal Corporation Act 1989 (Cth) s 32.

[17] Chief Justice Robert French AC, 'Essential and Defining Characteristics of Courts in an Age of

Institutional Change' (Conference Paper, Supreme and Federal Court Judges Conference, 21 January 2013).

[18] See for example term and condition 64.1.2 re failure to deliver an article.

[26] T page 14 line 1, page 16 lines 6 and 41, page 17 line 4, page 18 lines 27-28, page 19 line 14 et

[31] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 291-292 (Kirby J); Drew v Makita (Australia) Pty Ltd [2009] QCA 66; [2009] 2 Qd R 219, [60]; Commissioner of Taxation v Baffsky [2001] NSWCCA 332; (2001) 122 A Crim R 568, 578 (Spigelman CJ).

[32] Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd [1942] UKHL 4; [1943] AC 32; followed in Re Palmdale Insurance Ltd [1982] VicRp 93; [1982] VR 921, 931_._ See also Davis v Perry O'Brien Engineering Pty Ltd [2025] QCA 18.

[33] Devries v Australian National Railways Commission (1993) 177 CLR 472, 479; Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167, 178-179.

[34] QUYD Pty Ltd v Marvass Pty Ltd [2008] QCA 257; [2009] 1 Qd R 41, [6]; Drew v Bundaberg Regional Council

[2011] QCA 359, [18]; Felton & Anor v Raine and Horne Real Estate [2011] QCATA 330, [19].

[35] Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, 151; JM v QFG and GK [1998]

[37] CDJ v VAJ (1998) 197 CLR 172, 203. Hence the requirement for leave: s 142(3) of the Act.

Civil and Administrative Tribunal Act 2009

Postal Corporation Act 1989

Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167

Commissioner of Taxation v Baffsky [2001] NSWCCA 332; (2001) 122 A Crim R 568

Davis v Perry O'Brien Engineering Pty Ltd [2025] QCA 18

Drew v Bundaberg Regional Council [2011] QCA 359

Drew v Makita (Australia) Pty Ltd [2009] QCA 66; [2009] 2 Qd R 219

Felton & Anor v Raine and Horne Real Estate [2011] QCATA 330

Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd [1942] UKHL 4; [1943] AC 32

JM v QFG and GK [1998] QCA 228

O'Hara v Kmart Tyre & Auto Service [2019] QCAT 152

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

Re Palmdale Insurance Ltd [1982] VicRp 93; [1982] VR 921

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