Franks t/as Machinery Drive Office Furniture v Ruck
[2013] QCATA 315
•8 November 2013
| CITATION: | Franks t/as Machinery Drive Office Furniture v Ruck & Anor [2013] QCATA 315 |
| PARTIES: | Keith Franks t/as Machinery Drive Office Furniture (Applicant) |
| v | |
| Chris Ruck Jocelyn Ruck Chris Wells (Respondents) |
| APPLICATION NUMBER: | APL322 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe OAM |
| DELIVERED ON: | 8 November 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – where claim against employees of company – where claim amended to include director of company – whether director an undisclosed agent of company – whether grounds for leave to appeal PROCEDURE – JUSTICES OF THE PEACE – where JPs consulted tribunal members before making decision – whether a failure of procedural fairness PROCEDURE – where respondent did not attend the hearing – whether decision in default of response available Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 50, 206 Dearman v Dearman (1908) 7 CLR 549 Chambers v Jobling (1986) 7 NSWLR 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 |
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
Mr Franks rented office furniture to Kudos Health Club. Kudos did not pay the rent, so Mr Franks filed a claim against Mr and Ms Ruck on the basis that they were the people who negotiated the supply of the furniture to Kudos. Mr and Ms Ruck filed a response, stating that they were employees acting under instructions of the “director/owner” Mr Wells. Mr Franks then joined Mr Wells as a party to the claim. Two Justices of the Peace, sitting as a panel in the minor civil disputes jurisdiction, dismissed Mr Franks’ claim because they found that Kudos was, in fact, a company called Kudos Health Group Pty Ltd.
Mr Franks wants to appeal the learned JPs’ decision. He says that the learned JPs refused to give a decision in default of appearance. He says that he was denied natural justice because the learned JPs made their decision based upon advice from an unknown person in the tribunal. Mr Franks says he was not able to make submissions to the unknown party and could not verify the accuracy of the information the learned JPs gave to that party. He says that the learned JPs’ action was contrary to the procedure in s 206N of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) by which a member can refer a question of law to the President. He says that the learned JPs accepted direction or control from the third party in contravention of s 206M of the QCAT Act. Finally, Mr Franks says that the learned JPs failed to decide the matter on the preponderance of evidence.
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.
The first of Mr Franks’ submissions can be dealt with simply. The tribunal can only give a decision in default of appearance if the party has not responded within a given period[5]. Mr Wells did file a response, on 24 June 2013. Therefore, the tribunal had no power to give a decision by default. It was obliged to hear and determine the matter on the merits.
[5] QCAT Act s 50
The transcript shows that the learned JPs adjourned. When they resumed, the learned JPs asked Mr Franks why he filed the claim against the named parties instead of against the company. In their exchange with Mr Franks the learned JPs explored the issue in some detail. Even though it appears that the JPs consulted with a third party, the transcript also shows that they exercised their own judgment in making the decision. I am satisfied that the learned JPs did not accept direction or control from a third party. The second ground of appeal must also fail.
Mr Franks’ final ground for leave to appeal is that the weight of the evidence supported a finding that Mr Wells was the correct respondent. Mr Franks says that the evidence showed that he always believed he was dealing with Mr Wells personally and not as a director of a company.
The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[6] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[7] However, the appeal tribunal must exercise its own discretion when considering whether the original decision maker was in error.
[6]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[7] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
The tribunal often sees minor debt claims fail because, at the time of the contract, the applicant took no care to find out with whom it was dealing. Mr Franks’ evidence is contradictory. He said that Mr and Mrs Wells came to his business to hire furniture. In the documents filed with the application, Mr Franks asserts that Mr Wells said that he had just taken over Kudos. In the hearing, Mr Franks told the learned JPs that Mr Wells “intimated” he was the owner but he asked for the invoices to be made out to Kudos [8].
[8] Transcript page 1-8, line 24.
The invoices are addressed to Kudos Health Club. Unlike Mr Franks’ own business, there is no ABN or ACN noted.
Mr Franks filed documents downloaded from the internet that show, clearly, that Kudos is a company and Messrs Wells and Ruck are its spokesmen. Mr and Mrs Ruck’s response noted that Kudos was a company.
The preponderance of evidence does not support a finding that Mr Franks always thought he was dealing with Mr Wells, who was an undisclosed agent of the company. The very strong impression I have is that Mr Franks took no care to find out who was the proper respondent but he had a suspicion it was the company. When he discovered the company was in liquidation[9], Mr Franks decided to file a claim against anyone who he could find who was connected with the business. The affidavit of Mr Orr, a commercial agent, sworn 30 May 2013, confirms that view.
[9] Transcript page 1-10, line 3.
After listening to Mr Franks, the learned JPs found that the proper respondent was a company[10]. That finding was open on the evidence. The legal conclusion to be drawn from that fact – that the wrong party was before the tribunal - was inevitable.
[10] Transcript page 1-9, lines 39-40.
There is no question of general importance that should be determined by the appeals tribunal. There is no reasonably arguable case that the tribunal 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.
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