Heavylift Cargo Airlines Pty Ltd v Shipton
[2011] QCATA 72
•5 April 2011
| CITATION: | Heavylift Cargo Airlines Pty Ltd v Shipton [2011] QCATA 072 |
| PARTIES: | Heavylift Cargo Airlines Pty Ltd (Applicant/Appellant) |
| v | |
| Mr Eric Shipton (Respondent) |
APPLICATION NUMBER: APL272-10
| MATTER TYPE: | Appeals |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Richard Oliver, Senior Member |
DELIVERED ON: 5 April 2011
DELIVERED AT: Brisbane
ORDERS MADE: Leave to appeal is refused.
| CATCHWORDS: | Minor Civil Dispute – where applicant failed to attend mediation – where response raises no dispute or defence to the respondent’s claim – where no jurisdiction to consider counter-claim – whether lack of procedural fairness Queensland Civil and Administrative Tribunal Act 2009, ss 3; 28(3), 142(3) Kioa v West (1985) 159 CLR 550 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Mr Shipton is a flight engineer. He had an arrangement with Heavylift to supply flight engineering services as required by it from time to time. Heavylift operated a B727 aircraft out of Brisbane which Mr Shipton crewed from time to time. Two invoices produced by Mr Shipton[1] established that he was owed $6,657.40 for crew services provided between the period of 24 January 2009 and 18 June 2009. This sum includes out of pocket expenses which were also payable under his services contract with Heavylift.
[1] Tax invoice number 29 and number 30.
As Heavylift did not pay him for the services provided, Mr Shipton filed an application in the Tribunal to recover the outstanding amount of $6,657.40. Heavylift filed a response. In that response, they do not take issue with Mr Shipton’s claim however seek to counter-claim against him the sum of $9,350.00 in respect of a baggage tug “lent” to the applicant. The response goes on then to claim $9,350.00 because, it is alleged, Mr Shipton did not return the tug. No contract between Heavylift and Mr Shipton is referred to or relied upon but rather what seems to be, a claim in damages for trespass or detinue. This is not a claim over which QCAT has jurisdiction.[2]
[2] See definition of minor civil dispute schedule 3.
In the usual way the application was listed for a mediation at the Tribunal but Heavylift did not appear. There is good reason for this because, it is contended that the only person who had any knowledge of the matter, or could engage in the mediation was the Chief Executive Officer, Nicholas Leach, who was overseas and the Tribunal was informed of that. That is certainly the case, because the note on the mediation attendance sheet states:
“I spoke with Megan Sinclair (name of respondent on mediation by teleconference), Megan kept strongly stating that the CEO of the company is overseas, there is nobody else available apart from herself and she can not mediate because she does not have any authority to make decisions for the company. Mediation did not take place.”
The mediation notice advises parties that if they do not attend a mediation the application can be referred to a Tribunal member for determination in that parties absence. That is what occurred here.
That notice was sent to the parties on 3 September 2010 and the mediation was listed for 7 October 2010.
The application was considered by a Tribunal Member on that date. The transcript reveals that he initially expressed some reluctance to proceed with the application in view of the fact that the respondent’s representative had contacted the Tribunal to advise of their unavailability. He decided to proceed with the application because, similar to the views expressed above, he could immediately see that there was no defence properly raised in the response, and the counter-claim, although not expressed by him, was unrelated to the supply of services by Mr Shipton, and did not arise out of the same facts and circumstances the subject matter of the claim. As a result he made an order that Heavylift pay to Mr Shipton $6,747.90.
On 21 October 2010 Heavylift filed an application for leave to appeal or appeal. As this is an appeal from a minor civil dispute, leave to appeal is necessary.[3] The grounds of appeal attached to the application set out the factual circumstances that preceded the mediation which is referred to above and then asserts that Heavylift is not liable for the amount claimed. That, of course, is an interesting submission because no such denial is raised in the response to the minor civil dispute application.
[3] QCAT Act section 142(3).
The grounds then go on to contend that had Heavylift been able to attend the mediation, it could have made a without prejudice offer to resolve the claim “to the satisfaction of both parties”. The grounds of appeal do not attempt to specifically identify an error on the part of the learned Tribunal Member but do, inferentially, allege that there has been a denial of natural justice.
This theme is picked up in the submissions filed in support of the appeal. The submissions contend that Heavylift has not been afforded procedural fairness in the process contrary to stated principles[4] and contrary to the provisions of the QCAT Act[5] which imposes an obligation on the Tribunal to observe the rules of natural justice. It is contended also that the Tribunal breached its “duty to afford procedural fairness” by not notifying Heavylift, in a timely fashion, of its refusal to grant leave for representation.
[4] Kioa v West (1985) 159 CLR 550.
[5] Section 28(3)(a).
The submissions also reiterate what is in the grounds of appeal and that is, had Heavylift attended the mediation it “would have made an offer to the respondent to settle the matter to the parties satisfaction”. This statement certainly expresses a degree of confidence which one could reasonably infer that Mr Shipton would be paid what he was entitled to because no challenge is made to that entitlement.
Procedural fairness is fundamental to the proper conduct of the Tribunal’s business and a perusal of the transcript certainly indicates that this was at the forefront of the Tribunal Member’s mind when he decided to proceed with the application. He did so on the basis, as I have already said, that there was no defence raised to Mr Shipton’s claim. This is a case, where on the filed documents Mr Shipton would have been entitled to apply for a summary disposal of his application.
For leave to be granted, an error must be identified on the part of the Tribunal Member. The objects of the Act require the Tribunal to proceed in a way that is “accessible, fair, just, economical, informal and quick”.[6] The learned Tribunal Member clearly, in this case, discharged his obligations to achieve those objects in circumstances where it would have been pointless for the application to proceed further even though Heavylift did not appear at the mediation.
[6] QCAT Act, s 3.
Leave will only be granted if there is an arguable case of error in the primary decision-maker. 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?[7] Is there a reasonable prospect that the applicant will obtain substantive relief?[8] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[9] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[10]
[7] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[8] Cachia v Grech [2009] NSWCA 232 at [13].
[9] QUYD Pty Ltd v Marvass Pty Ltd (supra).
[10]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.
There is nothing in Heavylift’s grounds for appeal, or submissions which identify any error on the part of the learned Tribunal Member nor is any demonstrated. Heavylift’s counter-claim could not have been dealt with in the Tribunal due to lack of jurisdiction. Furthermore, a counter application is not permitted in a response to a minor debt claim.[11] Not only is there no grounds for leave to appeal, on the material before the learned Member he took the correct approach in disposing of the application in the way he did.
[11] QCAT Rules, r 48.
Leave to appeal is refused.
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