Jasen v Robert Herd, Stuart Harrigan, Herdlaw Solicitors
[2014] QCATA 3
•17 January 2014
| CITATION: | Jasen v Robert Herd, Stuart Harrigan, Herdlaw Solicitors [2014] QCATA 003 |
| PARTIES: | Carol Diane Jasen (Appellant) |
| v | |
| Robert Herd Stuart Harrigan Herdlaw Solicitors (Respondents) |
| APPLICATION NUMBER: | APL257-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member O’Callaghan Acting Senior Member Howard |
| DELIVERED ON: | 17 January 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for leave to appeal is refused. 2. The stay application is dismissed. 3. The applicant must pay costs of Robert Herd and Herdlaw in the sum of $1154 within 28 days of these orders, by making payment of the amount to Herdlaw. |
| CATCHWORDS: | APPEAL-LEAVE TO APPEAL-MINOR CIVIL DISPUTE- where Tribunal no jurisdiction- where claim does not meet definition of minor civil dispute- where transfer of application to Magistrates Court- where breach of procedural fairness- where outcome not affected because no jurisdiction APPEAL- COSTS- where application transferred to Magistrates court- where Tribunal has no jurisdiction-where stay application filed late- where applicant can proceed with claim in Magistrates Court Queensland Civil and Administrative Tribunal Act 2009 ss100, 102, 142(3) Green v Tri-Barfen [2006] QDC 160; |
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 (QCAT Act).
REASONS FOR DECISION
Ms Jasen filed an application for a Minor Civil Dispute – minor debt on 25 March 2013. The application sought orders for the respondents respectively a principal of Herdlaw, a former employee of Herdlaw and a firm, Herdlaw) to pay her $24,569.96 for reimbursement of legal fees paid by her to Herdlaw and paid to other lawyers (Morrow Peterson) previously engaged by her, together with interest and costs.
On 10 April 2013, a Senior Member made an order transferring the application to the Magistrates Court at Brisbane. Ms Jasen filed an application for leave to appeal and appeal the Senior Member’s decision. She also more recently applied for a stay of the Tribunal decision to transfer the application to the Magistrates Court pending the determination of her application for appeal. We have considered both of those applications.
The Senior Member’s written reasons for decision are to the effect that the application should be transferred to the Magistrates Court because the Tribunal dos not have jurisdiction to hear it. She considered that the claim was not a minor civil dispute, because it was not a claim for a debt or liquidated demand and nor was it a consumer complaint (because it was brought against a professional not a trader).
Leave to appeal is required.[1] There are well established principles as to when leave should be granted.[2] Is there a reasonably arguable case of error in the decision? Is there a reasonable prospect that the applicant will obtain substantive relief? Is leave necessary to correct a substantial injustice to the applicant caused by some error? Is there a question of general importance upon which further argument and a decision the Appeal Tribunal would be to the public advantage?
[1]QCAT Act 2009 s 142(3)(a).
[2]Lida Build Pty Ltd v Miller and Anor [2011] QCATA 219.
Ms Jasen says that the Tribunal erred in law and fact in transferring her claim, submitting that the Tribunal has jurisdiction to hear the claim as a minor civil dispute about a minor debt. She bases this argument on two claims previously filed by her against legal practitioners for reimbursement of legal fees paid and interest. She further submits that she was not afforded the opportunity to make submissions about the transfer before the order for transfer was made.
The Tribunal has only the jurisdiction which Parliament has set out in legislation. A minor civil dispute includes a claim for a debt or liquidated demand of money and a claim arising out of a contract between a consumer and a trader.[3]
[3]QCAT Act, Schedule 3 definition minor civil dispute.
Whatever may have transpired in other proceedings Ms Jasen was involved in is irrelevant. The Appeal Tribunal has held, and we agree, that solicitors do not fall within the definition of trader.[4] Nor is the amount claimed by Ms Jasen a debt or liquidated demand. It may coincide, apart from the costs and interest sought, with the amounts she paid to Herdlaw and her previous lawyers. However, her claim to be repaid the monies is a claim arising from allegations that Herdlaw failed to provide her with timely advice and follow her instructions. It appears to be a claim for damages for a breach of her contract with them. It is not a liquidated demand for money calculable according to a formula.[5]
[4]Morales v Murray Lyons Solicitors [2010] QCATA 87, especially at [22].
[5]Green v Tri-Barfen [2006] QDC 160; Morales v Murray Lyons Solicitors [2010] QCATA 87.
The Tribunal does not have jurisdiction to determine the claim, which is within the monetary jurisdictional limit of the Magistrates Court. Under s 52 of the QCAT Act, the Tribunal may transfer a proceeding to a court of competent jurisdiction if it considers it does not have jurisdiction. In this case, having formed the view it did not have jurisdiction, it transferred the proceeding to the Magistrates Court.
Ms Jasen also complains that she was not given the opportunity to make submissions before the transfer order was made. This is a breach of procedural fairness. However, allowing the opportunity to make submissions would not have altered the outcome since the Tribunal does not have jurisdiction. Therefore, there is no merit in allowing leave to appeal in respect of this error. We refuse leave.
There is accordingly no merit or utility in the stay application at this stage. We make orders dismissing it.
Robert Herd and Herdlaw, seek an order for costs against Ms Jasen on an indemnity basis in respect of both the application for leave to appeal and the stay application. Generally there is a strong contraindication against costs being awarded in the tribunal: each party usually bears it own costs.[6] However, the Tribunal may make an order for costs if it considers it in the interests of justice to do so.[7]
[6]QCAT Act s100.
[7]QCAT Act s102; see discussion regarding the discretion to order costs Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412.
The respondents argue essentially that the action was untenable in the Tribunal because of the jurisdictional issues; Ms Jasen acknowledges (in her grounds of appeal) that her claim is made for breach of contract; and that they have occasioned considerable costs in responding to not only the application for leave to appeal, but the stay application after the transfer order was made when there is no reason why Ms Jasen can not prosecute her claim in the Magistrates Court if she wishes to proceed with it. A total of 7.5 hours (5.5 hours for the application for leave to appeal and 2 hours for the stay application) at a rate of $522.50 per hour is claimed. That is $3918.75. Ms Jansen opposes an order being made for costs, although she has not specifically made submissions in response to the costs claimed for the stay application.
The appeal and stay applications are not especially complex, but the time claimed to be spent in responding to them is modest. Ms Jasen does have an avenue to pursue her claim in the Magistrates Court if she wishes to do so. Her stay application says that she does not wish, and is unable, to proceed in that jurisdiction until her appeal is heard. Why that is said to be the case is not apparent from the material before us. The application for leave to appeal was filed in June 2013 but the stay application was filed in November 2013. The timetable for the filing of material in the appeal was set out in directions of 24 June 2013. All material was required to be filed by at latest towards the end of August. Therefore, the timing of the filing of the stay application is curious, when a decision of the tribunal on the appeal might have been expected within a reasonably short timeframe. Ms Jasen is a self-represented, although on her own material, considerably experienced litigant.
We consider that it is in the interests of justice for Ms Jasen to pay the costs of Robert Herd and Herdlaw in relation to the appeal proceedings in an amount equivalent to the Magistrates Court Scale for taking instructions to defend a claim between $20,001 and $50,000, that is $1154. Ms Jasen must pay this amount within 28 days of these orders.
We make no separate award for costs in relation to the stay application.
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