Ali v Simpson

[2014] QCAT 197

CITATION: Ali v Simpson [2014] QCAT 197

PARTIES:	Abera Ali (Applicant)
v
Kyle Simpson (Respondent)

APPLICATION NUMBER: MCDO88-14

MATTER TYPE: Other minor civil dispute matters

HEARING DATE: 19 March 2014

HEARD AT: Brisbane

DECISION OF: Adjudicator Bertelsen

DELIVERED ON: 19 March 2014

DELIVERED AT: Brisbane

ORDERS MADE: 1.    Application to dismiss or strike out refused.

CATCHWORDS:

Motor vehicle – property damage claim – application to strike out or transfer to Magistrates Court – jurisdiction – evidence of lack jurisdiction

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 12

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. On 4 March 2014 the respondent through Logie-Smith Lanyon Lawyers filed an application to dismiss the applicants initiating application for recovery of the cost of damage to his motor vehicle which was involved in a motor vehicle collision with the respondent’s motorbike. The application has been refused. The respondent has on 14 April 2014 requested reasons for that refusal. The request is marginally out of time due to an administrative error on the respondent’s part. In the circumstances the time for requesting reasons is extended to 14 April 2014.

Background

1. Previously on 5 February 2014 the Tribunal had ordered as follows:

   The application for leave to be represented is granted.

   1.The applicant may be represented in these proceedings by Paul McKenzie and the respondent may be represented by someone from Swann Insurance.

   2.The application shall stand as amended in the document stamped 22 January 2014 and shall be listed for hearing on the first available date.

2. On 28 February 2014 the respondent through Logie-Smith Lanyon Lawyers made an application to the Tribunal for the initiating application to be struck out. On 28 February 2014 the Tribunal ordered that the application to dismiss or strike out be refused (order dated 27 February 2014).

3. On 4 March 2014 the respondent through Logie-Smith Lanyon Lawyers made further application for the initiating application to be struck out. The grounds of the application as recited were as follows:

   1.QCAT does not have jurisdiction to hear my counter-claim.

   2.I have a personal injury claim to be made against the applicant which cannot be heard in QCAT.

   3.The property damage aspect of my claim is being pursued by my motor vehicle insurer.

   4.Failing a successful application that the matter be dismissed, I seek that the matter be transferred to the Magistrates Court.

4. On 19 March 2014 the Tribunal ordered that the respondent’s subsequent application to dismiss or strike out be refused.

Reasons for refusal

1. The applicant is entitled to bring an application for damage to his motor vehicle before the Tribunal pursuant to s 12 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). The fact that the respondent is pursuing a personal injury claim does not oust the jurisdiction of the Tribunal.

2. No material has been filed in the Tribunal re the quantum of the respondents property damage claim. This is despite the Tribunal’s order of 5 February 2014 providing for the applicant to be represented and the respondent to be represented by Swann Insurance and the Tribunal’s prior refusal of the respondent’s application filed 28 February 2014 to strike out the initiating application.

3. It was open to the respondent from the outset, either on his own account or through his insurer, in his name, to file a counter-claim to the application.

4. There is only one application before the Tribunal at this point in time and that is the applicant’s application for recovery of damage to his motor vehicle. The quantum of the applicant’s claim is well within the Tribunal’s monetary jurisdiction. In the absence of any counter-claim with respect to property damage and there being no evidence to support the contention that the Tribunal lacks jurisdiction perforce of a prospective personal injury claim the initiating application ought to proceed.