Hai v Johnson
[2014] QCATA 128
| CITATION: | Hai v Johnson [2014] QCATA 128 |
| PARTIES: | Bi Fang Hai (Applicant/Appellant) |
| v | |
| Natalie Johnson (Respondent) |
| APPLICATION NUMBER: | APL533-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Thomas, President |
| DELIVERED ON: | 16 May 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for leave to appeal is granted. 2. The appeal is allowed. 3. The decision of 29 August 2013 is set aside and the proceeding is remitted to the tribunal for rehearing with an interpreter. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where applicant requested interpreter – where Magistrate determined interpreter not necessary – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(a), s 29(1)(b), s 29(1)(c), s 32, s 44(1) Pickering v McArthur [2005] QCA 294, applied |
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 (Qld) (QCAT Act).
REASONS FOR DECISION
Ms Johnson ran into the back of Ms Hai’s Holden Astra. Ms Johnson admitted liability but disputed the cost of repairs. Ms Hai claimed $1,552.30. A Magistrate, sitting as a member of the tribunal, ordered Ms Johnson pay Ms Hai $280.50.
Ms Hai wants to appeal that decision on the bases that she asked for an interpreter but one was not provided. She says that the learned Magistrate was biased, and she disagrees with the learned Magistrate’s findings of fact.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] The principles the appeal tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as his Honour then was) in Pickering v McArthur:
There are numerous authorities, in varying language but with unvarying emphasis, that leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]
[1]QCAT Act s 142(3)(a)(i).
[2][2005] QCA 294 at [3].
Section 44(1)(a) of the QCAT Act states that a party may be helped by an interpreter unless the tribunal directs otherwise.
The power to “direct otherwise” must be informed by the tribunal guidelines on the use of interpreters which state, in part:
§ Interpreters’ services should be provided on request
§ The ability to converse in English does not necessarily indicate a person comprehends QCAT processes – where there is doubt an interpreter should be engaged
The learned Magistrate questioned Ms Hai about her background[3] and then satisfied himself that Ms Hai did not need an interpreter.[4] Ms Hai told the learned Magistrate that she might not understand what he was saying about “some legal”.[5] The learned Magistrate interpreted that comment as a request for legal representation.[6] The learned Magistrate knew that an interpreter could help people understand nuances and how things were expressed[7]. However, based on how long she had lived in Australia, her work and from what she had said, the Magistrate determined that Ms Hai did not need an interpreter.[8]
[3]Transcript page 1-2, line 19 to page 1-2, line 14.
[4]Transcript page 1-3, lines 25 - 28.
[5]Transcript page 1-3 line 14.
[6]Transcript page 1-3 lines 18 - 19.
[7]Transcript page 1-3 lines 24 - 25.
[8]Transcript page 1-3 lines 25 - 28.
The Magistrate did not ask Ms Hai if she understood what he was doing. He did not ask her to explain back to him what the process was, so that he could be sure she understood. Indeed, Ms Hai’s response during this discussion was limited to “Mmm”.[9]
[9]Transcript page 1-3 lines 21 and 31.
A review of the audio transcript reveals that Ms Hai did have trouble understanding the learned Magistrate.
From that point, regardless of the outcome, the hearing was irretrievably tainted. The learned Magistrate did not observe the rules of natural justice as required by the QCAT Act.[10] He could not have been satisfied that Ms Hai understood the actions, expressed views and assertions of the parties, having regard to her cultural background,[11] and, he did not ensure that the proceedings were conducted in a way that recognised Ms Hai’s linguistic background.[12]
[10]QCAT Act s 28(3)(a).
[11]QCAT Act s 29(1)(b).
[12]QCAT Act s 29(1)(c)(i).
Leave to appeal should be granted, the appeal allowed and the decision of 29 August 2013 set aside. The proceeding is remitted to the tribunal for rehearing with the appropriate interpreter available for Ms Hai.