Boniface v Gold Coast Tow Trucks light & Heavy Pty Ltd

[2014] QCAT 210

CITATION: Boniface v Gold Coast Tow Trucks light & Heavy Pty Ltd [2014] QCAT 210

PARTIES:	Mr Ian Boniface (Applicant)
v
Gold Coast Tow Trucks light & Heavy Pty Ltd (Respondent)

APPLICATION NUMBER:   MCD8/14

MATTER TYPE: Other minor civil dispute matters

HEARING DATE: 14 February 2014

HEARD AT: Southport

DECISION OF: Adjudicator Trueman

DELIVERED ON: 14 February 2014

DELIVERED AT: Southport

ORDERS MADE: 1.   The application for a Notice for Witness to attend filed by the Applicant is refused.

CATCHWORDS: 

Minor civil debt – consumer dispute – notice for witness to attend – whether witness should be compelled to attend hearing – relevance of witness

Queensland Civil and Administrative Tribunal Act 2009 ss 95, 97

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 (“QCAT Act”).

REASONS FOR DECISION

1. Mr Boniface filed an Application for notice requiring witness to attend or produce document or thing at Southport.  The application seeks a notice to require a person to attend a ‘hearing at 9.30am on 18 February 2014’.  The application did not include any evidence from Mr Boniface as to the reasons why that witness was required to attend a hearing.

2. The tribunal can require a person to attend a hearing and to give evidence.[1]

   [1]QCAT Act s 97(1)(a).

3. The tribunal must allow a party a reasonable opportunity to call and give evidence[2], to examine and cross examine the witnesses[3] and to make submission to the tribunal.[4]

   [2]Ibid s 95(1)(a).

   [3]Ibid s 95(1)(b).

   [4]Ibid s 95(1)(c).

4. The tribunal can refuse to allow a party to a proceeding to call evidence on a matter[5] if the tribunal considers there is already sufficient evidence about the matter before the tribunal[6].

   [5]Ibid s 95(2)(a).

   [6]Ibid s 95(2)(b)(1).

5. At the hearing evidence may be given orally or in writing[7], and if required evidence must be given on oath or by affidavit.[8]

   [7]Ibid s 95(4)(a).

   [8]Ibid s 95(4)(b).

6. The tribunal should not require a witness to attend a hearing to give evidence unless that evidence is relevant and of assistance to the tribunal. The tribunal should not compel a witness to attend a hearing and give oral evidence if the evidence could be evidence that would be available to be given by affidavit.

7. In the application Mr Boniface required a witness Mr Gregory Ian Short to attend the hearing in person and to give evidence.  From the content of the original application and from the details that were provided in the original Consumer claim, it was not obvious as to what evidence the witness would give and any relevance.  The original claim sough a refund of a payment made to the towing company.  From the details in that initial application, it is clear that the witness was neither the owner nor driver of the vehicle subject to the claim, nor was he the Director or operator of the tow truck business.  I am at a complete loss as to who the actual witness is or his involvement in this dispute.

8. Mr Boniface did not provide any evidence to explain who the witness was, nor the evidence the witness would give, and any relevance that evidence would be to his case and the reason why the witness was required to attend in person at the hearing, rather than perhaps by telephone or by affidavit.  In light of the lack of relevant details and any evidence as to why the tribunal should compel another party to attend a hearing without justification, it would not be appropriate in the circumstances to do so.

What are the appropriate Orders?

1. For the reasons outlined above I am satisfied that the application for Notice requiring a witness to attend should be refused.

1. The order that I propose to make is as follows:

1.    THAT the application for a Notice for Witness to attend filed by the Applicant is refused.