Fleming v The Northern SEQ Distributor - Retailer Authority
[2025] QCATA 87
•30 September 2025
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Fleming v The Northern SEQ Distributor – Retailer Authority [2025] QCATA 87
PARTIES:
BRIAR FLEMING (applicant/appellant)
v
THE NORTHERN SEQ DISTRIBUTOR - RETAILER AUTHORITY (respondent)
APPLICATION NO/S:
APL302-23
ORIGINATING APPLICATION NO/S:
MCD 084/23
MATTER TYPE:
Appeals
DELIVERED ON:
30 September 2025
HEARING DATE:
On the Papers
HEARD AT:
Brisbane
DECISION OF:
Member Paratz AM
ORDERS:
1. Leave to appeal is granted.
2. The appeal is allowed.
3. The decision of the Tribunal made on 13 September 2023 is set aside.
4. The matter is returned to the original Tribunal, or if it is not conveniently available, to another Tribunal, for fresh hearing.
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – whether there was a denial of procedural fairness where the Applicant was taken by surprise at the hearing of a minor civil dispute by a statement of a witness provided by the Respondent – where neither of the central witnesses for either party attended the hearing and were not available for cross-examination – where questions of credit were involved
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3
IM v Adult Guardian and The Public Trustee of Queensland [2011] QCATA 114
Rintoul v State of Queensland & Ors [2018] QCA 20
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)
REASONS FOR DECISION
This is an appeal against a decision of an Adjudicator made at Maroochydore on 13 September 2023 of a Minor Civil Dispute.
The original applicant in the proceeding was Zhivago Fleming. At the hearing, his daughter, Briar Fleming (‘the Owner’), was substituted as the applicant. She is the owner of a 2018 Kia Rio sedan which had damage to the front driver’s side panel and bumper.
The Northern SEQ Distributor – Retailer Authority (‘Unitywater’) was named as a respondent. It trades as Unitywater, and is the operator of a truck. The driver of the truck was Gavin Zeelie.
The original application also named another person, Elaine Wagenmakers, as a respondent. She is an employee of Unitywater who was involved in processing the claim. She had an administrative role only, and was formally struck out as a Respondent in the course of the hearing.[1]
[1]Transcript 1–19 line 22.
The application, which was filed on 1 June 2023, sought payment of the amount of $3,031.70 comprised as follows:
(a)Right to Information request – $65.00
(b)Rectification of work – $2,836.00
(c)Application filing fee – $130.70
The Owner alleged that the driver of the Unitywater truck had collided with, and damaged, her vehicle which was stationary, and parked behind her friend’s residence at the time.
The driver of the Unitywater truck denied that any collision occurred.
There was no contest as to the quantum of the damage claimed by the Owner, and the hearing proceeded to consider the question of liability.
The Adjudicator dismissed the Application, making the following concluding comments:[2]
I appreciate there has been a very significant and detailed analysis of this matter. It comes down to a decision as to whether or not I am satisfied that the collision occurred. I have to say after considering the matter, I am not satisfied that it can be shown that in fact the truck was involved in the collision. It seems to me looking at the structure of that vehicle, that the point of impact would not have been in the manner alleged.
In all the circumstances of this matter, I am not satisfied that the applicant has proved to the extent necessary that the damage to her car was caused as alleged. In that circumstance, the order that I am going to make is that the application is dismissed.
[2]Ibid 1–20 lines 32–41.
Grounds of appeal
The grounds of appeal were set out in the Application for leave to appeal or appeal as follows:[3]
Procedural/question of law:
During the hearing 13-9-23 the respondent’s junior lawyer Jesse Robson produced a lengthy unsigned statement from the unity driver (Gavin Zeelie). It contained comments which were never made by his neighbours in regards to Briar Fleming being banned from their home and that she had made previous questionable accusations. This is not true.
Had it been submitted as required with their ‘Additional Submissions from Respondents’ document (dated 8-9-23) I would have gathered affidavits from Gavin’s neighbours (Briar’s family friends) evidence to prove factually with signatures many of his points submitted in the statement were false. I had no chance to gain evidence to rebut the statement which clearly should have been allowed to afford natural justice.
The driver’s statement was requested on the 23rd February and 23rd March, by RTI to Unitywater. The RTI response stated 15th May said there was no such document. It was then produced during the hearing.
Question of law: procedure for producing important documents prior to hearing not followed.
[3]Application for leave to appeal or appeal filed 18 September 2023, Part C.
The applicant sought orders in the appeal as follows:
To have the hearing retried. This would ensure factual evidence and signed affidavits, based on the Unitywater truck driver statement, disproving his claims can be presented during the additional hearing fairly allowing natural justice.
Nature of the Appeal
This is an appeal from a decision of the Tribunal in its Minor Civil Disputes jurisdiction. Section 142(3)(a) of the Queensland Civil and Administrative Tribunal Act2009 (Qld) provides that such an appeal may be made only if the party has obtained the Appeal Tribunal’s leave to appeal.
If leave to appeal is required, an applicant must show that:
(a)there is a reasonable argument that there is an error to be corrected; and
(b)the appeal is necessary to correct a substantial injustice.[4]
[4]Rintoul v State of Queensland & Ors [2018] QCA 20, [10].
An appeal is to correct error, not to litigate the matter afresh.
Conduct of the hearing
The Owner did not attend the hearing, did not give oral evidence, and was not available for cross-examination. Her father acted as her representative, and referred to an affidavit by her.
The driver of the Unitywater truck also did not attend the hearing, did not give oral evidence, and was not available for cross-examination.
The Owner’s father referred to conversations he had had with Mr Wayne Tidman, the owner of Coastal Collision Repairs in Maroochydore, and referred to comments made by Mr Tidman on a quote for repairs. Mr Tidman did not attend the hearing, did not give oral evidence, and was not available for cross-examination.
The hearing was substantially conducted on the part of the Owner by her father making submissions based upon the affidavit of his daughter, supplemented by conversations he had with his daughter; and submissions upon the written comments of Mr Tidman, supplemented by conversations he had with Mr Tidman.
The hearing was substantially conducted on the part of Unitywater by Mr Robson making submissions based upon GPS tracking information about the truck, and a statement of the driver which was provided on the day of the hearing.
The decision
The Adjudicator considered the arguments as to liability, and made the following comments in giving his decision:[5]
[5]Transcript 1–19, line 26 to 1–20, line 31.
Causation is our law, particularly in relation to property damages, is that there is an obligation on the person alleging fault to be able to show the factual steps which support the conclusion which is argued for.
That is on the basis of an overall appreciation of the evidence, am I able to accept that on the balance of probabilities that the applicant has proved that the damage to her car was caused by the respondent – I should say the respondent’s agent because the vehicle was driven by an employee of the respondent. As it was a work vehicle, it would necessarily follow that the respondent is liable for the acts of the servant or agent.
The claim has been unusual in the sense that neither Ms Fleming nor the driver have been called to give evidence. I have proceeded to deal with the matter because it could be said that this claim has been very extensively reviewed by both parties. And to that extent, the level of cooperation between the two parties is appreciated.
The central issue to be determined is as to whether or not the applicant has established that the driver of the respondent’s vehicle negligently reversed his vehicle and caused damage to the right-hand side front panel of the applicant’s car.
There has been full investigation of the matter. And in particular, there has been presented GPS data in relation to the movements of the respondent’s vehicle on the day in question.
There does not appear to be doubt about the fundamental issue, which is that Ms Fleming’s vehicle – while certainly parked outside or next door to the driver’s residents as she was attending to visit a friend, there is no doubt that at some stage in the hours that she was present – that she was there, had gone away and had then returned, and had parked the vehicle behind the respondent’s vehicle.
The argument made on her behalf is at the damage to the vehicle was discovered late that evening. And was the subject of discussion with the driver the next day. Putting it as neutral as I can, it would seem that there was an agreement to disagree as to the cause of that damage.
In the statement that has been provided, and also in relation to incident report forms completed by the driver, he denies having reversed into the applicant’s car. Mr Fleming has provided firstly, a series of photographs which he asserts demonstrates that the left rear of the respondent’s vehicle had collided with Ms Fleming’s vehicle. Gavin, the driver, denies that and put in doubt as to whether or not it could be said that there was, in fact, impact between the two vehicles.
Some reliance was placed on the quotation that had been provided in relation to the potential damage. The repairer dealt with the matter by examining photographs that had been prepared and provided to him by Mr Fleming. He made this notation in his quotation:
After a close inspection of the damage the vehicle, including height and direction of impact, as well as the evidence presented, although not conclusive, the damage seems very consistent with both the size and shape of the vehicle in the images as well as the residual marks that are shown.
The objection that Mr Robson has to accepting that evidence is that he has not demonstrated that there is any particular expertise in relation to damage impact. Whilst there is some force to what he says, the position that I adopt in the matter is that I take into account what the repairer says.
In my examination of the photographs – and without forensic analysis of it, I take account of some of the remarks made by Kevin Zealey, in his observations that there were a number of marks on the car, which he has detailed in his incident report. As best I interpret his comments, they were inconsistent with having been caused by his car.
The Owner’s Appeal submissions
The Owner filed submissions on 17 November 2023, which attached an affidavit from Karalee McDonald, who had been Mr Zeelie’s neighbour for nine years. That affidavit referred to whether Ms Fleming had been banned from her house, and also gave evidence as to Ms Fleming’s car being parked outside Mr Zeelie’s house when he arrived home from work on 10 February 2023.
The Owner, in Reply submissions, submitted that she would have thought that the driver’s statement ‘would have been the very first piece of evidence supplied’ and that ‘to present this statement on the morning of the hearing, which turns out to be unsigned, proven inaccurate, insulting Briar Fleming’s character or not even an affidavit, is entirely unfair.’[6]
[6]Appellant’s Reply Submissions filed 9 February 2024, p 1.
Unitywater’s Appeal submissions
Unitywater referred to the affidavit of Ms Macdonald and submit that the Owner has failed to submit an application for leave to rely upon additional evidence in the Appeal.
Unitywater submit that the owner and her father have repeatedly altered the alleged time at which the owner’s vehicle was present at the scene ‘to neatly fit with the reliable GPS evidence provided by the respondent’.
Discussion
There are clear questions of credit in this matter, relating to the evidence of both the Owner and of the driver of the Unitywater truck. Such a question of credit can only be properly resolved by the Tribunal after hearing the witnesses give oral evidence, and being available for cross-examination.
The failure of both the Owner and Unitywater to have their central witnesses attend the hearing placed the Adjudicator in a difficult position. The Tribunal has a duty to resolve matters in a way that is ‘accessible, fair, just, economical, informal and quick’.[7] There is pressure on Adjudicators, particularly in the Minor Civil Disputes jurisdiction, to hear and decide matters without prolonging the proceedings.
[7]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3.
When parties do not attend a hearing appropriately prepared, and without appropriate witnesses present, they impede the ability of the Tribunal to quickly deal with the matter.
If the Owner had attended the hearing, the Adjudicator could have proceeded on the basis that she gave evidence and was cross-examined, and then made a decision having regard to the statement of the Unitywater driver taking into consideration what weight to place on it, as it was not tested by cross-examination.
Conversely, if the Unitywater driver had attended the hearing, the Adjudicator could have proceeded on the basis that he gave evidence and was cross-examined, and then made a decision having regard to the statement of the Owner, taking into consideration what weight to place on it, as it was not tested by cross-examination.
As the hearing eventuated, the Owner was placed in a position where her representative was taken by surprise by the production of a statement by the Unitywater driver at the hearing, and did not have the ability to cross-examine the driver.
The Adjudicator apprehended the difficulty in proceeding in that situation, and raised the issue at the hearing as follows:[8]
[8]Transcript 1–8 lines 26–47.
Adjudicator: Where’s Gavin, as a matter of interest?
Mr Robson:Yes. So Gavin, originally in the – in the original – sorry. One second. Just trying to find it in our response here. But in the original information he supplied to insurance, which is in our first response prior to our timeline. So – and actually, I publish should mention at this time as well – now, I totally understand if this is not admissible at this point, but Gavin actually supplied a follow-up statement to us this morning. The reason – –
Adjudicator: But where is he?
Mr Robson:He’s not here, unfortunately. He’s…
Adjudicator: He’s not here?
Mr Robson:Yes. He works night shift.
Adjudicator: But he should be, shouldn’t he?
Mr Robson:So – yes.
Adjudicator: He should be.
Mr Robson:We weren’t sure we – yes. We didn’t bring him on account of the fact he wasn’t named as a respondent, but – yeah. Certainly – unfortunately, he wasn’t available for this. But he did supply a statement to me this morning, and I totally understand if we don’t want to admit this at all, but I can read of it, if you’d like, to explain, and I’ve got additional copies of – that I can hand out as well, if you’d like.
Adjudicator: Well, I’m happy to have a look at it on the basis that Briar’s not here either.
As a matter of fairness, the statement of the Unitywater driver should have been provided earlier to the owner, or at least the Unitywater driver should have been made available for cross-examination on it.
There therefore was a lack of procedural fairness, which is an error of law,[9] in proceeding with the hearing where the Owner was taken by surprise by the provision of a statement of the Unitywater’s employee without him being made available to be cross-examined upon it, and I grant leave to appeal.
[9]IM v Adult Guardian and The Public Trustee of Queensland [2011] QCATA 114, [20].
The questions of credit in this matter can only be resolved at a fresh hearing, with the central witnesses attending in person and being made available for cross-examination, and such other evidence as is allowed by the Tribunal at the hearing.
In deciding an appeal on a question of law only, the Appeal Tribunal may set aside the decision and return the matter to the Tribunal for reconsideration.[10]
[10]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 146(c).
The matter is to be returned to the original Tribunal, or if it is not conveniently available, to another Tribunal, for fresh hearing, and I order accordingly.
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