Dann v Gold Coast City Council

[2013] QCATA 220

CITATION: Dann v Gold Coast City Council [2013] QCATA 220

PARTIES:	Mr Gordon Dann (Appellant)
V
Gold Coast City Council (Respondent)

APPLICATION NUMBER: APL173 -13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Peta Stilgoe OAM, Senior Member

DELIVERED ON: 9 August 2013

DELIVERED AT: Brisbane

ORDERS MADE: 1.  Leave to appeal refused

CATCHWORDS:

MINOR CIVIL DISPUTE – where Council appeared by in-house lawyer – where no leave for legal representation – where Council given leave to attend by telephone – where Council appeared in person – whether grounds for leave to appeal

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 29, 43, Schedule 3

Dearman v Dearman (1908) 7 CLR 549;
Fox v Percy (2003) 214 CLR 118.

Chambers v Jobling (1986) 7 NSWLR 1

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
Cachia v Grech [2009] NSWCA 232
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388

McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404

APPEARANCES and REPRESENTATION (if any):

The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. Mr Dann left his car, boat and trailer parked on the street at the Gold Coast.  The Council placed “Notice to Owner” stickers on the vehicles a number of times, indicating that it thought they had been abandoned. Finally, the Council impounded the vehicles. Mr Dann eventually reclaimed the vehicles but he wanted the Council to pay him damages and reimburse the storage costs it had charged him while the vehicles were impounded.

2. The Council claimed that the tribunal had no jurisdiction to consider Mr Dann’s claim. The tribunal agreed and dismissed the application.

3. Mr Dann wants to appeal that decision. He says that the Council had indicated it would appear by telephone but the lawyer appeared in person. He says that the Council appeared at the hearing through an in-house lawyer, without leave, which was unfair. He says that the facts of the case support a finding in his favour.

4. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?[1]  Is there a reasonable prospect that the applicant will obtain substantive relief?[2]  Is leave necessary to correct a substantial injustice caused by some error?[3]  Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?[4]

   [1]        QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

   [2]        Cachia v Grech [2009] NSWCA 232 at 2.

   [3]        QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

   [4]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.

5. There is nothing in Mr Dann’s complaint that the Council appeared in person, rather than on the telephone. The tribunal’s order of 12 February 2013 allowed the Council to appear by telephone but it did not compel the Council to appear by telephone. It is to the Council’s credit that it took the time and effort to appear personally and I cannot see how Mr Dann was disadvantaged by that.

6. Parties in tribunal proceedings should generally represent themselves unless the interests of justice otherwise require[5]. The learned Member asked Mr Dann whether he objected to the lawyer’s appearance[6]. He did object, because he expected the Council to appear by telephone[7]. 

   [5]        Queensland Civil and Administrative Tribunal Act 2009 (Qld).

   [6]        Transcript page 1.

   [7]        Transcript page 2.

7. The learned Member did not consider whether the Council’s appearance by a lawyer was in the interests of justice. One of the matters the tribunal can consider when deciding whether to grant leave is if a party is a State agency.[8]   “State agency” includes a local government.[9]  The learned Member should have applied her mind to the question of leave. Had she done so, leave would probably have been granted. The learned Member’s omission did not result in a substantial injustice to Mr Dann and it did not affect the result of the case.

   [8]        Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 43(3)(a).

   [9] Ibid, Schedule 3

8. Mr Dann cannot understand why, if he paid the Council money, he cannot bring a claim to recover it. It is a difficult concept for people without legal training to understand that a tribunal created by statute does not have unlimited power to hear disputes. The learned Member explained clearly that the tribunal’s jurisdiction is limited[10]. She explained to Mr Dann that he filed a consumer/trader claim but that the Council is not a trader. She invited Mr Dann to tell her why she should not strike out his claim. The learned Member fulfilled her obligation to take reasonable steps to ensure Mr Dann understood the nature of the assertions in the proceeding and the legal implications of those assertions[11]. She could do no more.

   [10]        Transcript page 7.

   [11]        Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 29.

1. There is no question of general importance that should be determined by the appeals tribunal. There is no reasonably arguable case that the learned Adjudicator was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.