Kg Restorations Paint and Panel v Burrows
[2014] QCATA 31
•3 March 2014
| CITATION: | KG Restorations Paint and Panel v Burrows [2014] QCATA 031 |
| PARTIES: | Karl Grice (t/a KG Restorations Paint and Panel) (Appellant) |
| v | |
| Jasper George Burrows (Respondent) |
| APPLICATION NUMBER: | APL455-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr Forbes, Member |
| DELIVERED ON: | 3 March 2014 |
| DELIVERED AT: | Brisbane |
| ORDER MADE: | Leave to appeal is refused |
| CATCHWORDS: | APPEAL – MINOR CIVIL CLAIM – damages for conversion by bailee and order for repayment of moneys had and received – order allowing claimant to be legally represented – respondent/appellant unrepresented – whether order for representation a denial of natural justice – whether appellant consented to order for representation – order discretionary and procedural – substantive decision unchallenged – whether leave to appeal should be granted – leave refused Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20, s 32 Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25, cited Cachia v Hanes (1994) 179 CLR 403; [1994] HCA 14, cited Drew v Bundaberg Regional Council [2012] QPELR 350; [2011] QCA 359, cited Felton and Anor v Raine and Horne Real Estate [2011] QCATA 330, cited MacPherson v The Queen (1981) 147 CLR 512; [1981] HCA 46, cited Minogue v Human Rights and Equal Opportunity Commission (1999) 166 ALR 129; [1999] FCA 85, cited Reisner v Bratt [2004] NSWCA 22, cited Robinson v Corr [2011] QCATA 302, cited |
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
In August 2011[1] the respondent (Burrows) was the proud owner of a vintage motor car, known as an HG Brougham. The appellant (Grice) conducted a car restoration business at Neumann Road, Capalaba, Brisbane.
[1]Transcript of hearing 20 September 2013 (“Transcript”) page 51 line 33 (Grice).
Burrows was keen to have the car painted and otherwise restored. On his behalf his de facto wife, Roxanne Stringer, sought and obtained several quotations for the job. Grice’s offer to do the work for $10,000 was accepted, and in August 2011 the car was towed[2] to his workshop, where a deposit of $2,000 was paid in cash.[3]
[2]Its engine had been removed.
[3]Transcript page 11 lines 16-17 (Stringer); page 27 line 37 (Burrows) Grice denied receipt of this payment: page 37 line 1; page 38 line 26. The Tribunal did not believe him: page 55 line 24.
The work (if any) proceeded at glacial speed. In December 2011 Grice told Stringer that it had commenced, but was unfinished. In May 2012 Ms Stringer moved to Armidale. From there she telephoned Grice and told him that Burrows’ Brisbane address was unchanged. She gave Grice the telephone numbers of Burrows and herself, and Burrows’ email address. According to Grice, the Brougham was still a work in progress.
In November 2012 Stringer returned to Brisbane and contacted Grice. Some time later she asked Grice about the car, and according to her he told her that that he no longer had it, and that ‘he needed to sell it because he couldn’t get hold of [Burrows]’[4] and had sold it to ‘his mate’.[5] Grice’s version is that he disposed of the vehicle for nothing.[6] Neither car nor deposit was recovered.[7] There is no suggestion of compliance with the Disposal of Uncollected Goods Act 1967.[8]
[4]Transcript page 13 line s 22-23 (Stringer).
[5]Ibid page 13 line 32.
[6]Ibid page 36 line 38; page 44 line 35 (Grice).
[7]Ibid page 15 line 29 (Stringer); page 55 line 18 (Adjudicator’s decision).
[8]See ss 5-9 thereof.
The Tribunal upheld Burrows’ claim. It awarded him $8,000 for the value of the car, and a refund of his deposit. Accordingly, judgment was entered in favour of Burrows for $10,000, payable on or before 18 October 2012. That sum remains unpaid.
The legal basis of the award is not precisely stated. Presumably $8,000 was awarded for conversion by Grice as a bailee, and $2,000 for moneys had and received to the use of Mr Burrows.[9]
[9]As submitted by counsel for Burrows: Transcript page 49 lines 1-2.
Grice now seeks leave to appeal,[10] and a re-trial, on these grounds, prepared by his solicitors:
a) I was denied procedural fairness and natural justice;
b) The other party was represented by a barrister;
c) I said that was not fair, I wanted to get an adjournment so I could get legal representation and that was denied;
d) I was advised that the barrister would assist me in the cross-examination; and
e)I say this was not fair or just.
[10]Application filed 18 October 2013, signed by Wellners Lawyers.
In substance there is one ground of appeal, namely [7](a), as particularised in [7](b), (c), and (d). This ground refers to the Adjudicator’s decision upon Burrows’ preliminary, procedural application to be represented by Atkinson of counsel. There is no direct attack upon the substantive decision.
“Represented by a barrister”
This ground, in itself, signifies nothing. It cannot be seriously suggested that, if one party is legally represented, and another is not, then ipso facto, natural justice is denied.
Was an adjournment sought and denied?
This submission is seriously misleading. In fact, Grice did not seek an adjournment. Materially, the discussion between the parties and the Tribunal on the representation question was as follows:
Mr Atkinson: I seek leave to appear for Mr Burrows...
Adjudicator Crawford: Well, has leave been granted previously?
Mr Atkinson: No ... I’ve put in a formal application seeking leave [and was told] ... we would be apprised of the result today...
Adjudicator (to Grice): Have you received a copy of the application? ...
Mr Grice: ... I have got some stuff, but I’m not exactly sure what it is. ...
Adjudicator: What’s your view of whether or not I should ... allow Mr Atkinson to represent him ... Do you have any particular objection to my allowing ... the barrister to appear?
Mr Grice: ... [N]ot at this point in time, no.[11]
Adjudicator: No, all right...[12] I note there’s no objection to [counsel’s] appearance by Mr Grice.[13]
[11]Emphasis added. This waiver is noted in the appellant’s submissions on appeal, filed 6 December 2013, paragraph 8.
[12]Transcript page 2 lines 10-22; page 3 lines 1-28.
[13]Ibid page 4 lines 21-22.
Mr Atkinson assured the Tribunal that ‘I provided my written submissions [for leave to appear] to Mr Grice’s premises at the same time I filed them with the tribunal’.[14] There is sworn evidence in support of that statement.[15] Grice was not suddenly confronted by counsel on 20 September 2013; he had time to consider his position, and, if so desired, to consult his solicitors about representation.
[14]Ibid page 3 lines 36-38 (Atkinson).
[15]Affidavit of Debra Leanne Petek sworn 9 December 2013, deposing that the notice was posted to Grice 7 days before the hearing.
It is clear, then, that Grice did not object to Mr Atkinson’s appearance; still less did he seek an adjournment to obtain legal representation. The Adjudicator was under no obligation to follow the form of interrogation which Grice’s submissions on appeal attempt to prescribe. Initially, at least, the case seemed complex, and of course Burrows bore the onus of proof and the task of unfolding a convoluted narrative.
“I was advised that the barrister would assist me in the cross-examination”
This is a serious distortion of the following statement by the Adjudicator:
[T]he case does look somewhat complicated, and often... lawyers can assist the tribunal. They owe a duty to the tribunal to present... the case fairly, and obviously they’re acting for one side or the other. But they [have] duties to the tribunal and to the courts as well to carry out their job in a good way...
In that statement the Adjudicator speaks of counsel’s duty to assist the Tribunal; with respect to the other party counsel must act fairly, but that party must realise that counsel is advocate “for one side or the other”, not for both sides. The Adjudicator himself offered significant procedural assistance to Grice,[16] but it is a misrepresentation to claim that he said ‘the barrister would assist me in the cross-examination’.
[16]Transcript page 4 lines 29-39; page 17 lines 7-45; page 19 lines 1-34 (how to ask questions in cross-examination).
However, the barrister did offer Grice assistance. When Grice was about to cross-examine Ms Stringer, the Adjudicator said that he must not ask her ‘questions which indicate what the answer will be’.[17] At that point counsel fairly and successfully drew the Adjudicator’s attention to the error, which was immediately corrected.[18] That assistance was not inconsiderable, and subsequently the Adjudicator patiently assisted Grice to frame questions in cross-examination.[19] Any insinuation that Grice was left entirely to fend for himself would be misleading, although there are, of course, limits on the assistance that a tribunal can offer a self-represented party without unfairness to the opponent.
[17]Ibid page 15 line 40.
[18]Ibid page 16 lines 1-6.
[19]See note 14, above.
It is now well recognised that the proliferation of litigants in person poses a dilemma for adjudicators.[20] A litigant in person must, of course, receive a fair hearing, and some assistance to that end. But such assistance must not conflict with the role of an impartial adjudicator.[21] The tribunal should bring procedural points to the party’s attention, but without becoming counsel for him.[22] Telling the parties the rules is one thing; telling them how to play the game is another.[23] A degree of assistance that may be appropriate in a criminal case may be less so in civil proceedings.[24] It may well have been helpful to Mr Grice and the Tribunal if he had engaged at the trial the legal assistance he has sought for his appeal. Grice consulted a solicitor before the hearing, or at least had one in mind.[25]
[20]Cachia v Hanes (1994) 179 CLR 403 at 415; Kenny v Ritter (2009) 52 MVR 360 at [14].
[21]Reisner v Bratt [2004] NSWCA 22 at [4]; Grey v City of Marion (2006) 159 A Crim R 357; [2006] SASC 3 at [42].
[22]R v White; R v Piggin (2003) 7 VR 442 at 454.
[23]MacPherson v The Queen (1981) 147 CLR 512 at 546.
[24]Minogue v Human Rights and Equal Opportunity Commission (1999) 166 ALR 129 at [27].
[25]Transcript page 4 line 6.
The transcript indicates that Grice was significantly assisted by the Tribunal, and had a full and fair opportunity to be heard. By no means was he an overawed or reticent party. His cross-examination of the witnesses Stringer and Burrows occupies more than 30% of the record.[26] His curial confidence reflects his insouciant treatment of Burrows and his property.
[26]15 of 47 pages, omitting formal and procedural matters.
In the circumstances outlined above, it cannot reasonably be said that Grice was denied natural justice, and that is the only point raised. As a legal concept, natural justice does not accommodate mere disappointment at the result of a case, or a desire to re-run it in the hope of a more favourable result. It is not a catch-all plea lest all else fail:
The rules of natural justice must not be stretched too far. Only too often the people who have done wrong seek to invoke the rules of natural justice so as to avoid the consequences.[27]
[27]R v Secretary of State for the Home Department; Ex parte Mughal [1974] QB 313 at 325 per Denning MR. Likewise Megarry J in London Borough of Hounslow v Twickenham Garden Developments Ltd [1973] 3 All ER 326 at 347-348.
Applications for leave to appeal - proper limits
An application for leave to appeal is not an occasion for a retrial de novo, or for “second guessing” of questions of fact or credit that are the province of the primary decision-maker. Indeed, the very requirement to obtain leave is to preclude attempts to retry cases on the merits,[28] or to introduce evidence or arguments that might have been led in the first place, but were not. On such an application the question is whether there is a reasonably arguable case of error which, if not corrected, will cause substantial injustice to the applicant.[29] It is not nearly enough for an applicant to express disappointment, or to entertain a subjective feeling that justice has not been done.[30] Where reasonable minds may differ, a decision cannot properly be called erroneous, simply because one conclusion has been preferred to another possible view.[31] The decision in question is a discretionary one, and one on a point of procedure – a type of decision with which courts of appeal are particularly reluctant to interfere.[32]
[28]Distinguish QCAT Act s 20 (review jurisdiction).
[29]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257 at [6]; Drew v Bundaberg Regional Council [2012] QPELR 350; [2011] QCA 359 at [18]; Felton and Anor v Raine and Horne Real Estate [2011] QCATA 330 at [19]; International Professional Services v Tritone Nominees Pty Ltd [2011] QCATA 332.
[30]Robinson v Corr [2011] QCATA 302 at [7].
[31]Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at [131]; In Re W (an infant) [1971] AC 682 at 700 per Lord Hailsham; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1025.
[32]Australian Coal and Shale Employees Federation v Commonwealth (1953) 94 CLR 621 at 627; Evans v Bartlam [1937] AC 473.
Conclusion
The would-be appellant has not demonstrated any reasonably appellable error in the procedural decision below, and I can discern none. The application for leave to appeal must therefore be refused. Order accordingly.
ORDER
The application for leave to appeal is refused.
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