Bredereck v Mahoney Lawyers

[2012] QCATA 203

CITATION: Bredereck v Mahoney Lawyers [2012] QCATA 203

PARTIES:	Paul Bredereck (Applicant/Appellant)
v
Mahoney Lawyers (Respondent)

APPLICATION NUMBER: APL387-11

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON: 11 October 2012

DELIVERED AT: Brisbane

ORDERS MADE:

1.   Leave to appeal is granted and the decision made on 28 September 2011 is set aside.

2.   Minor civil dispute proceeding 2284/11 is transferred to the Magistrates Court of Queensland.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL PRACTICE –where order transferring a proceeding to the Magistrates Court was made without jurisdiction – whether the proceeding should be remitted to the minor civil disputes jurisdiction for determination

Queensland Civil and Administrative Tribunal Act2009, ss 3, 4, 32, 52

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

1. On 26 July 2011 Mr Bredereck, trading as Tamworth Air Services, commenced a proceeding in QCAT’s minor civil disputes jurisdiction against Mahoney Lawyers claiming a refund of money paid ($3,602.50) and relief from payment of money owed ($13,707.11) in respect of legal fees claimed by Mahoney Lawyers.   In his application Mr Bredereck claimed that the work undertaken by the lawyers was not fit for the purpose. 

1. On 19 July 2011, before Mr Bredereck began his action in QCAT, Mahoney Lawyers commenced a proceeding in the Magistrates Court[1] to recover fees of $13,707.11 plus interest for legal services provided to Mr Bredereck as detailed in their invoice 14745.  These are the same legal fees as those the subject of Mr Bredereck’s application.

   [1]        Magistrates Court proceeding M7769 of 2011.

1. In his application Mr Bredereck sets out the basis upon which he says the legal services performed were unsatisfactory and why he should not have to pay.  After filing a response to the application, on 22 September 2012, Mahoney Lawyers filed an application in the Tribunal to have the QCAT proceedings transferred to the Magistrates Court. 

1. In support of the application to transfer, Mitchell Downes has annexed to his affidavit a copy of the claim and statement of claim and the defence in the Magistrates Court proceedings.  It is immediately apparent that the subject matter of both proceedings is the same.

1. The application for transfer was not served on Mr Bredereck and he did not, therefore, have an opportunity to respond to it. 

1. The application was nevertheless placed before a QCAT Member for consideration on 28 September 2011 and an order was made that the QCAT file be transferred to the Magistrates Court pursuant to s 52 of the QCAT Act.

1. From that decision Mr Bredereck has filed an application for leave to appeal or appeal.  His grounds of appeal are that he was not served with the application and was denied procedural fairness.  Mahoney Lawyers do not cavil with this contention, but say that in any event the order should stand because there is no prejudice to Mr Bredereck and transferring the proceeding would save both parties the time and cost of conducting separate proceedings in two different jurisdictions.  There is merit to this argument.  However, there is a more fundamental difficulty with the order transferring the proceeding.

1. Applications to transfer to a more appropriate forum are made under s 52 of the QCAT Act. The section sets out the circumstances in which a proceeding can be transferred, but s 52(7) provides that the Tribunal’s power under s 52 is only exercisable by a judicial member. The Member who made the order transferring the proceeding is not a judicial member.

1. This is an error of law. Leave to appeal must be granted, and the decision of the learned Member set aside. Section 146 of the QCAT Act permits the Tribunal to substitute its own decision on the appeal if the original decision is set aside.

1. It is appropriate and timely, now the matter has reached a judicial member, to find the quickest, most informal and least expensive way to deal with the matter.[2]  It would be futile and time-wasting to return the matter to the Tribunal only to have it addressed by a judicial member when that is the effect of the current appeal.

   [2] QCAT Act, ss 3(b), 4(c).

1. Having read the court documents annexed to the affidavit of Mr Downes and the particulars of the minor civil dispute application it is apparent that the matters in dispute arise out of the same facts and circumstances and should be dealt with in one proceeding.  In respect of the application to transfer, further submissions from either party would in that circumstance be of no apparent benefit.  The Magistrates Court proceeding was commenced first in time, and that is plainly the appropriate forum to determine this dispute.

1. I therefore propose to give leave to appeal, and order that decision made on 28 September 2011 be set aside.  I propose to further direct that the minor civil dispute proceeding 2284 of 2011 be transferred to the Magistrates Court.