Borcan International Pty Ltd v Marker
[2011] QCATA 296
•24 October 2011
| CITATION: | Borcan International Pty Ltd v Marker [2011] QCAT 296 |
| PARTIES: | Borcan International Pty Ltd t/a Billie’s Prestige Selection (Appellant) |
| v | |
| Jacqueline Marker (Respondent) |
| APPLICATION NUMBER: | APL202-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Fleur Kingham, Deputy President |
| DELIVERED ON: | 24 October 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The application for leave to appeal is refused.1. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – whether hearing should have been adjourned to enable party to file a counterclaim to a minor debt claim – whether party given conflicting information – whether that was relied upon – whether the Member discriminated because of the nationality of a party’s representative – whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act 2009, ss 83(1), (2)a), 142(3)(a)(i) |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
This is an application for leave to appeal brought by Borcan International Pty Ltd, a real estate agency. The respondent, Ms Marker, is a real estate agent and a former employee of Borcan.
Ms Marker brought an application against Borcan, in the QCAT Minor Civil Dispute jurisdiction for a minor debt: the payment of commission earned following the settlement of a property sold whilst she was an employee of the agency. The matter was heard on 1 June 2011. The learned Magistrate, acting in her capacity as a Member of QCAT, ordered Borcan to pay Ms Marker $9,420.53 plus the $92 filing fee.
Leave is required to appeal from a decision arising from a Minor Civil Dispute.[1] Leave will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?
[1] Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(a)(i).
Borcan’s grounds for leave to appeal can be summarised as follows:
a)The learned Magistrate erred by refusing to allow Borcan an adjournment to obtain further material;
b)Borcan’s case was substantially damaged because it was given conflicting information by QCAT staff, upon which it relied; and
c)The learned Magistrate discriminated against Borcan because of the nationality of Mr Lekich, the employee who appeared for Borcan.
Should the learned Magistrate have adjourned the proceedings to allow Borcan time to submit a counter-claim?
At the hearing, Borcan submitted that when Ms Marker left its employ she had accrued debts that, in total, far exceeded the amount Ms Marker claimed against Borcan. It did not produce documentary evidence to substantiate that claim. Borcan requested an adjournment to allow time to gather evidence for a counter claim.
Ms Marker’s application was one for a minor debt. Under the QCAT Rules, a party may not make a counter-application in response to an application for a minor debt claim.[2] The learned Magistrate said as much. She adjourned the matter briefly to check the Rules before proceeding.[3] Correctly, she informed Mr Lekich that proceeding with Ms Marker’s claim would not prevent Borcan bringing a claim against Ms Marker for the money it claims she owes. Had she adjourned the proceedings, QCAT could not have accepted a counterclaim by Borcan.
[2] Queensland Civil and Administrative Tribunal Rules 2009, r 48.
[3] Transcript of the proceedings, pg 14.
The transcript discloses that the learned Magistrate properly considered all the material before her and took into account Borcan’s submissions about certain receipts contained in Ms Marker’s material. There was no error in the learned Magistrate’s decision to refuse the application to adjourn and she gave due consideration to the evidence before her.
Was Borcan’s case substantially damaged because of conflicting information provided by QCAT staff?
Prior to the hearing, QCAT staff advised Borcan it could not submit a counter-claim in answer to Ms Marker’s application. Presumably, that was advice given by a staff member in the Magistrates Court Registry in Caloundra, under delegation from the Principal Registrar of QCAT. That advice was correct.
Borcan alleged that a mediator gave conflicting information. If that is so, that would be a matter of concern to the Appeal Tribunal. The mediator, engaged by QCAT through the Dispute Resolution Branch of the Department of Justice and Attorney-General, is fulfilling a function under the QCAT Act.
[10] Evidence of anything said or done during mediation is not admissible at any stage of the proceeding.[4] Although it is not limited to the words or actions of a party, the purpose of the section is to protect the parties by providing a confidential process for without prejudice discussions. In this case, both parties have made assertions about what the mediator said. This might allow the Tribunal to receive the evidence.[5] The parties do not agree, however, about what was said and the Tribunal does not have any evidence from the mediator on the point.
[4] Queensland Civil and Administrative Tribunal Act 2009, s 83(1).
[5] Queensland Civil and Administrative Tribunal Act 2009, s 83(2)(a).
[11] Assuming, for the moment, that what Borcan says the mediator said is true, it is of no consequence. Borcan conceded it did not take the mediator’s opinion as advice and it certainly did not act to bring a counter-claim. In its reply, filed before the mediation, it said it would prove Ms Marker owed it money, but took no steps to prepare to do this at the hearing. The complaint about conflicting information if, indeed, it is true has no bearing on this appeal.
[12] Borcan did not act on incorrect information. If it has a claim against Ms Marker, it could not have brought it as a counterclaim. It retains its right to make its own claim against Ms Marker for any further debt it says she owes it.
[13] In those circumstances, it is not appropriate for the Appeal Tribunal to receive the evidence about what was said by the mediator or to seek to resolve the apparent conflict between the parties on that issue.
Did the learned Magistrate discriminate against Borcan’s representative because of his nationality?
[14] Borcan submitted the learned Magistrate made statements during the hearing that clearly demonstrated bias and prejudice against Mr Lekich, because of his nationality. This is a most serious allegation, especially against a judicial officer. Impartiality is a fundamental obligation of all judicial officers.
[15] Borcan’s accusation is not specific. No particular statement was provided as an illustration. The Appeal Tribunal has reviewed the transcript in full. There is nothing in it that could be taken, reasonably, to indicate bias or prejudice.
[16] The only reference that might be taken to refer to Mr Lekich’s nationality appears below:
…I mean, I can only operate on the basis of the law, so you need to show the law that says that I have a power to do something you want me to do, if you’re asking the Tribunal to do it
…
I mean, this is a country in which the law prevails, the rule of law, and so judicial officers have to always ensure that they have the power to so something before they do it. So that is the position I’m in.[6]
[6] Transcript of the proceedings, pg 11.
[17] The context of the above passage was Mr Lekich’s submission that the learned Magistrate should allow Borcan to file a counter-claim because it was the ‘fair thing’ to do. The learned Magistrate proceeded to explain in a straightforward and practical way that her power did not depend on what was a ‘fair thing’ but rather on what the law provided for.
[18] Fairly and reasonably, her words would not be construed to imply she harboured any prejudice against Mr Lekich, whether because of his nationality or otherwise. Rather, she sought to explain, in simple terms, the fundamentals of the legal framework within which all judicial officers operate. Borcan’s allegation is completely without foundation.
[19] Borcan has not made out an arguable case of error on the part of the learned Magistrate. Leave to appeal is refused.
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