Henricks v Pullen
[2021] QCATA 14
•21 January 2021
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Henricks v Pullen & Anor [2021] QCATA 14
PARTIES:
JESSIE HENRICKS
(applicant/appellant)
v
MARCELLO PULLEN
(first respondent)
YASMIN PULLEN
(second respondent)
APPLICATION NO/S:
APL294-19
ORIGINATING APPLICATION NO/S:
MCDO1756-18 Brisbane
MATTER TYPE:
Appeals
DELIVERED ON:
21 January 2021
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member Howe
ORDERS:
Application for leave to appeal refused.
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where the respondents purchased a motor vehicle from the applicant – where the vehicle was defective – where the respondents brought consumer dispute proceedings in the Tribunal – where the applicant failed to attend the hearing before Justices of the Peace - where the Justices of the Peace made an award in favour of the respondents – where the applicant applied to reopen the proceedings – where the reopening application was refused – where the applicant seeks leave to appeal the reopening decision
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 138, s 138A, s 139, s 141
Pickering v McArthur [2005] QCA 294.
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondent:
Self-represented
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
Mr and Mrs Pullen purchased a 2005 Mazda 3 motor vehicle from Ms Henricks and her partner, Mr Hazelden, on or about 13 November 2018 for $3,950.
Soon after purchase the vehicle was found to be seriously defective according to a report from a mechanical workshop. The accuracy of the Safety Inspection Certificate given at sale was challenged by Mr and Mrs Pullen and they commenced proceedings in the Tribunal against Ms Henricks and Mr Hazelden to recover the money they had paid.
They filed and served an application for minor civil dispute – consumer dispute.
The matter was set down for hearing on 30 August 2019. Mr and Mrs Pullen attended the hearing by telephone but there was no appearance by the respondents. Judgment was given in favour of Mr and Mrs Pullen for the amount of $3,970.50 and Ms Henricks and Mr Hazelden were ordered to collect the vehicle from Mr and Mrs Pullen.
Ms Henricks applied for a stay of the decision and for a reopening of the matter.
The stay was granted pending determination of the reopening application.
On 11 October 2019 the reopening application was refused.
On 1 November 2019 Ms Henricks filed an application seeking leave to appeal the reopening decision. Leave to appeal is necessary where the matter involves an appeal of a decision made in the Tribunal’s minor civil dispute jurisdiction. If leave is granted then the appeal may proceed.[1]
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i).
Leave to appeal was not sought against the decision of the Justices of the Peace made on 30 August 2019.
Mr and Mrs Pullen contend that the application for leave to appeal and appeal is flawed. They point to the legislation prohibiting an appeal of a reopening decision.
The legislation
The Queensland Civil and Administrative Tribunal Act 2009 (Qld) relevantly provides:
138 Application to reopen
(1) A party to a proceeding may apply to the tribunal for the proceeding to be reopened if the party considers a reopening ground exists for the party.
…
138A Effect of application under s 138 on decision in proceeding
(1) An application under section 138 to reopen a proceeding does not affect the operation of a decision made by the tribunal in the proceeding or prevent the taking of action to implement the decision.
(2) However, the tribunal may make an order staying the operation of the decision made by the tribunal in the proceeding until the application to reopen the proceeding is finally decided.
…
139 Deciding whether to reopen
…
(4) The tribunal may grant the application only if the tribunal considers—
(a) a reopening ground exists for the applicant party; and
(b) the ground could be effectively or conveniently dealt with by reopening the proceeding under this division, whether or not an appeal under part 8 relating to the ground may also be started.
(5) The tribunal’s decision on the application is final and can not be challenged, appealed against, reviewed, set aside, or called in question in another way, under the Judicial Review Act 1991 or otherwise.
141 No appeal until application finally dealt with
(1) This section applies if a party to a proceeding has made an application under section 138 about the tribunal’s final decision in the proceeding.
(2) An appeal, or an application for leave to appeal, against the final decision can not be made until the application under section 138 is finally dealt with under this division.
Discussion
Whilst an appeal is available to a party after a reopening application is refused, it is clear that the leave to appeal sought was in respect of the refusal to reopen the proceedings.
In Part B of the application document Form 39 there are two dates to be completed: one is the date of the decision against which the appeal is brought, and the other the date the applicant/appellant received the decision.
Ms Henricks identified the decision against which leave to appeal was sought was that made 11 October 2019 which was the date of the reopening decision. She said in the application she received the decision on 24 October 2019 which clearly references receipt of the reopening decision rather than the substantive decision made on 30 August 2019.
In an annexure to the application for leave to appeal she clearly states that she is appealing the reopening decision made 11 September 2019 (sic).
Mr and Mrs Pullen submit that the reopening decision is final and cannot be the subject of appeal.
They are correct.
They also submit that if the application for leave to appeal was to be treated as an appeal against the substantive decision of the Justices of the Peace it is in any case outside the permitted 28 day appeal period.
That is not correct.
By s 141 of the QCAT Act any appeal must wait for the decision on reopening to be made before proceeding. Then by s 143(5)(b) of the QCAT Act the relevant day commencing the 28 day appeal period starts after the day the person applying for reopening is advised of the reopening decision.
There are further difficulties for Ms Henricks.
Mr and Mrs Pullen also submit Ms Henricks has not identified any grounds of appeal of the decision of the Justices of the Peace.
Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.[2]
[2]Pickering v McArthur [2005] QCA 294.
The error made in the decision under appeal must be identified.
Ms Henricks raises an issue concerning the Safety Certificate and about the sale to Mr and Mrs Pullen being a private rather than commercial transaction.
She claims she and her partner at the time approached the provider concerned as an unknown independent provider of services. Its workshop was convenient on the day because she and her partner were visiting the area, which was no small distance away from her place of residence.
But this was not evidence led before the Justices of the Peace. It is fresh evidence and should have been led on the day of hearing. There is no application for leave to adduce fresh evidence in the appeal.
As to the matter being a private transaction, she appends a print out from a government website about consumer protection for used car buyers but says nothing more about that.
But Ms Henricks does not identify any error made in the decision below. Ms Henricks simply disagrees with it because it was unfair that she was not heard. But Ms Henricks was not heard in the decision because she did not attend the hearing. Her application for reopening so she could be heard was the subject of the reopening application which was rejected and it cannot be the subject of appeal.
Her application for leave to appeal the reopening decision is fatally flawed and there are no grounds of appeal raised identifying any error made in the decision by the Justices of the Peace on 30 August 2019.
Whilst the parties are not legally represented and they may fairly claim they are ignorant of legal process and procedure, the rules set by the legislation are clear and the Tribunal must follow them where that is mandated, as is the case here.
Leave to appeal must be refused.
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