Gabler v Williams

[2024] QCATA 44

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Gabler v Williams [2024] QCATA 44

PARTIES:

HANS KARSTEN GABLER

(applicant/appellant)

v

DEREK WILLIAMS

(respondent)

APPLICATION NO/S:

APL153-22

ORIGINATING APPLICATION NO/S:

MCDO3-22

MATTER TYPE:

Appeals

DELIVERED ON:

11 April 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

Leave to appeal is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where applicant brought claim for debt or liquidated demand – whether claim liquidated damages = whether “minor civil dispute” as defined.

Queensland Civil and Administrative Tribunal Act 209 s 143(3)(a)(i)

Rintoul v State of Queensland & Ors [2018] QCA 20

Robinson Helicopter Company Incorporated v McDermott

[2016] HCA 22

Terera v Clifford [2017] QCA 181

APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

1. This is an appeal from an on the papers decision of a Tribunal Adjudicator as to whether the claim brought by the applicant against the respondent was for a debt or liquidated demand  within the definition of “minor civil dispute” in Schedule 3 of the Queensland Civil and Administrative Act 2009. The definition provides that minor civil dispute includes:

   A claim to recover a debt or liquidated demand of money up to the prescribed amount.[1]

   [1]The prescribed amount is $25,000.00

2. There seemed to be an informal agreement between the parties that the applicant would help the respondent construct a CNC board for his computer. The applicant was to use his tools and equipment for the work. As the learned adjudicator pointed out, the material suggests this was an arrangement between friends and there is no evidence of a contract for this work. That is, where the general terms of an agreement were discussed and an hourly rate for the work was agreed to.

3. The total claim made is for $5,867.00 made up of labour charges ($840.00) and the balance the value of equipment and tools left at the respondents residence. Included in the claim is $225 for legal costs incurred when the applicant engaged a solicitor to write a letter of demand.

4. As the learned adjudicator said in her reasons that the Tribunal is a creature of statute and the powers conferred on are contained in the QCAT Act. It has no power to determine disputes between parties where the claim involves damages to be ascertained or arrived at by the decision maker, in other words an unliquidated amount or the return of property. As Justice Alan Wilson, President explained in Hill v Berghofer [2011] QCATA 34 at [7]:

   A ‘debt or liquidated demand’ is ... one where the amount is determined and, in effect, beyond dispute as to how it is calculated. If the amount depends upon assessment by the court or tribunal, it is not liquidated

5. This is clearly the case with respect to the claim except perhaps for the labour charge. However, even this depends an identifiable agreement between the parties as to the labour charge. There are no particulars of this agreement asserted by the applicant. As the learned adjudicator said in her reasons:

   In this matter, the applicant is claiming some liquidated damages being work at the respondent’s property at an hourly rate of $20. In order for the applicant to be successful, the applicant would have need to provide evidence that there was an agreement that the applicant would work for the respondent on this – for this amount. If that was all the applicant’s claim, then perhaps this matter could have been dealt with as a minor debt, however, a substantial portion of the applicant’s claim is, in fact, unliquidated damages. For example, the applicant is seeking damages for lost job opportunities due to tools being withheld, damages due to stress caused by the respondent damages due to fake set up of case to get applicant charged, infringement fine….

6. I can only agree with these observations as to the characterisation of the claim. Having considered the material, the learned adjudicator dismissed the claim not because of lack of merit but on the grounds that the Tribunal did not have the power or jurisdiction to determine it. The claim was for unliquidated damages even for the labour component. Further any retention of the applicant’s materials or tools by the respondent is a claim in detinue for which, again, the Tribunal does not have jurisdiction. It is certainly not a trader claim within s 1(b) of the definition of Minor Civil Dispute

7. On 7 July 2022 the applicant filed an application for leave to appeal or appeal. As this is an appeal brought under s 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 in respect of a decision in a proceeding for minor civil dispute, an appeal may be made only if the party has obtained leave of the Tribunal. Leave to appeal (or permission) will usually only be granted where there is a reasonable argument the decision was attended by error, or that an appeal is necessary to correct the substantial injustice caused by the error.[2] Further in Rintoul v State of Queensland & Ors [2018] QCA 20 at [10] the Court of Appeal reiterated the general principles:

   The principles governing a grant of leave to appeal are well-established. In short, an applicant for leave to appeal must show:

   (a)  the appeal is necessary to correct a substantial injustice;

   (b)  there is a reasonable argument that there is an error to be corrected.

   There must be reasonable prospects of success to warrant a grant of leave. Therefore, in deciding whether to grant leave to appeal the Court usually makes some preliminary assessment of the prospects of the proposed appeal.

   [2]Terera & Anor v Clifford [2017] QCA 181.

8. In support of the appeal the applicant has field a plethora of material and in particular a document dated 22 July 2022 titled:

   QCAT’s alleged errors and/or mistakes in phone-hearing:

9. In the alleged “mistakes” the applicant does not address the fundamental question as to why his claim is a debt or liquidated demand within the definition. It is understandable that the distinction may be difficult for the lay person to appreciate but the distinction is well established at law. Even in his lengthy submission, the applicant argues the merits of his claim rather than the jurisdictional point considered by the learned adjudicator. The various text messages annexed to the submission indicate assistance was provided but do not evidence an agreement about payment, at a fixed rate. The balance of the submission address other issues including what occurred at a mediation (which is confidential) police involvement, and solicitors correspondence.

10. In all, the grounds of appeal essentially reiterate the position that was before the learned adjudicator. There were no factual findings a such and the decision was based on a question of law as to the characterisation of the claim made by the applicant. As the learned adjudicator said, the applicant may have a good claim for compensation, but just not in Tribunal.

11. The applicant has not established any ground upon which leave to appeal can be granted, and therefore it is refused.