Broughton v Searle
[2014] QCAT 212
•17 February 2014
| CITATION: | Broughton v Searle [2014] QCAT 212 |
| PARTIES: | Paul Broughton (Applicant) |
| v | |
| Michael Thomas Searle (Respondent) |
| APPLICATION NUMBER: | MCDO51248/13 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | 17 February 2014 |
| HEARD AT: | Southport |
| DECISION OF: | Adjudicator Trueman |
| DELIVERED ON: | 17 February 2014 |
| DELIVERED AT: | Southport |
| ORDERS MADE: | 1. The application to transfer the claim to the District Court filed by the respondent on 3 February 2014 is refused. 2. The application for leave to be represented filed by the respondent on 3 February 2014 is refused. |
| CATCHWORDS: | Minor Civil Dispute – representation – transfer claim to District Court – whether leave should be granted – whether reasons for transfer provided Queensland Civil and Administrative Tribunal Act 2009, ss 28, 43, 52 Lida Build Pty Ltd v Miller [2010] QCAT 155 |
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
Representation Application
Section 43 of the QCAT Act provides that the parties are to ‘represent themselves unless the interests of justice otherwise require’. In determining whether to give Mr Searle leave to be represented, the Tribunal may consider the following as circumstances supporting the giving of any leave:
(a) the party is a State agency;
(b) the proceeding is likely to involve complex questions of fact or law;
(c) another party to the proceeding is represented in the proceeding;
(d) all of the parties have agreed to the party being represented in the proceeding.
Parties are expected to represent themselves in proceedings before the Tribunal except in those cases where representation is permitted as of right. In cases where leave is needed for parties to be represented, the Tribunal must be satisfied that the interests of justice require the parties to be represented.
Mr Searle’s seeks to be legally represented. He claims that the matters before the tribunal are complex legal issues and that an application has been made to transfer the proceedings to the District court. He claims that it will serve the interest of justice of the tribunal to have the assistance of a qualified legal practitioner.
Mr Searle provided written submissions. Mr Broughton filed submissions to the application for representation. The application was opposed by Mr Broughton. He claims that the parties should represent themselves and claimed that the matters in dispute are not complex and there is no need for legal representation. Mr Broughton objected to Mr Searle being legally represented.
I consider that the matter is not a legally complex matter although it is alleged the dispute involves money owed under an option agreement. The evidence may relate to findings of whether the parties are bound to a legally binding contract and or trust deed and determination of whether the option was legally and effectively exercised.
Under section 28 of the QCAT Act the tribunal must act fairly, must act in accordance with the substantial merits of the case, must observe the rules of natural justice, must act with as little formality and technicality as proper consideration of the issues permit and must ensure that all relevant material is disclosed as far as is practicable.
As highlighted by Member Stilgoe in the decision of Lida Build Pty Ltd v Miller [2010] QCAT 155 she said at [6]:
Through its own processes and Rules, the tribunal has from its commencement set in place arrangements that should result in parties to a proceeding being accorded procedural fairness and in matters being dealt with in a way that is accessible, fair, just, economical, informal and quick.
She went on to say at [7] that:
The tribunal does not consider that the presence of a legal representative in a proceeding will necessarily promote procedural fairness or will necessarily assist the tribunal to a material degree to achieve its statutory objects, particularly in a case where the other party is not legally represented. The tribunal has not been persuaded that granting leave to the applicant to be legally represented in the proceedings will advance the interests of justice as contemplated by the Act.
In this case the tribunal has been unable to ascertain any such complex question that would necessitate input and assistance from a legal representative. I do not accept Mr Searle’s submissions that representation by a legal representative will best ensure the interest of justice and will assist the tribunal to have the assistance of a qualified legal practitioner.
The application for leave to be represented must therefore be refused.
Application to Transfer proceedings to District Court
Mr Searle filed a form 40 Application for Miscellaneous matters on 3 February 2014 seeking orders for the claim to be transferred to the District Court.
The application stated that the matter should be transferred as ‘QCAT does not have jurisdiction to determine this dispute’. Further,
that there are proceedings on foot in the District Court of Queensland (number 269 of 2014) in which the dispute might more conveniently be heard. These proceedings have all the relevant parties named as respondents and are in a jurisdiction in which the appropriate relief is able to be granted.
Mr Searle claims that QCAT does not have jurisdiction as the claim filed by Mr Broughton seeks relief of ‘specific performance which QCAT cannot grant’. He further alleges that even if there is found to be a payment (which is denied) by Mr Searle to Mr Broughton under the option deed that the ‘purchase price is $108,400.00’ which ‘exceeds QCAT’s jurisdictional limit’.
Mr Searle did not provide any evidence as to the District Court proceedings, the claim number or proof that the parties to this claim were the same as the parties to the District Court proceedings.
Mr Broughton filed submissions in response to the transfer application. He disputes the allegations made by Mr Searle and particularly that the claim is a claim for specific performance. He alleges the sum owed to him by Mr Searle is the sum of $8,400.00, a liquidated amount owed under a contract, and that is provided for as a payment as a debt and therefore QCAT has jurisdiction. Further Mr Broughton states that the amount owed to him is the sum of $8,400.00 and that there are other amounts owed by Mr Seale to another entity, being Broughton Investments, for a sum of approximately $1,000,000.00. He added that claim is not part of this claim, is not owed to him and that his claim for the monies owed to him stand alone from any other claim.
Mr Broughton objects to the claim being transferred to the District Court. He says he has not filed any application in that jurisdiction, and that Mr Searle has merely filed an originating application without submissions or supporting affidavit material and there is not Statement of Claim filed. He claims that no date has been allocated. He said that the originating application in the District Court is ‘nothing more than a puff’ and filed as a means of ‘avoiding Mr Searle’s obligations in respect of the subject matter of this claim’.
Mr Broughton submitted that there is a debt owed by Mr Searle to him and that it is within the amount falling with the jurisdiction of QCAT.
The tribunal must not transfer the proceedings to another jurisdiction unless the tribunal considers the subject matter of a proceeding or a part of a proceeding would be more appropriately dealt with by another tribunal, a court or another entity[1]. Alternatively if the tribunal considers that it does not have jurisdiction to hear all matters in a proceeding, the tribunal may, by order, transfer the matter or matters for which it does not have jurisdiction to a court of competent jurisdiction; or another tribunal or entity having jurisdiction to deal with the matter or matters.[2]
[1]Queensland Civil and Administrative Tribunal Act 2009 s 52(1).
[2]Ibid s 52(2).
The Tribunal has a statutory obligation to deal with matters in ways that are accessible, economical and quick. The Act places obligations upon parties themselves to take care in their dealings with Tribunal matters and to act in their own best interests.
In this case I am satisfied that the tribunal has jurisdiction to hear the minor civil debt matter. I am not persuaded that the claim should be transferred to the District Court, in the absence of any evidence that there exists an originating application filed in the District Court proceeding 269 of 2014 and evidence that the parties in the application are the same as this claim. If that evidence was provided, and I was persuaded the dispute relates to the same set of facts and circumstances, then I may have favourably considered such a transfer application. In the absence of such evidence the application to transfer must be refused.
Order
1. THAT the application to transfer the claim to the District Court filed by the respondent on 3/2/2014 is refused.
2 THAT the application for leave to be represented filed by the respondent on 3/2/2014 is refused.