King Developments Pty Ltd v Mayne
[2014] QCATA 270
•17 September 2014
| CITATION: | King Developments Pty Ltd v Mayne [2014] QCATA 270 |
| PARTIES: | King Developments Pty Ltd (Appellant) |
| v | |
| Alan John Colburn Mayne (Respondent) |
| APPLICATION NUMBER: | APL205-14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Acting Senior Member Paratz |
| DELIVERED ON: | 17 September 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the Tribunal made on 9 April 2014 is set aside. 2. The matter is returned to the Tribunal who made the decision for reconsideration, taking into account the Reply of King Developments Pty Ltd which is attached to the Application for leave to appeal or to appeal filed on 8 May 2014. |
| CATCHWORDS: | APPEAL – SUBMISSION NOT CONSIDERED – where a claim on the fund under the Property Agents and Motor Dealers Act 2000 (Qld) was referred to the Tribunal - where a party failed to comply with Directions of the Tribunal requiring it to give a copy of submissions in Response to the other party – where another party was deprived of the opportunity to make submissions in Reply to a Response – where the Tribunal was not given the opportunity to consider the full submissions of the parties – where it would be unsafe and unfair for the decision to stand – where the matter was returned to the Tribunal for reconsideration Property Agents and Motor Dealers Act 2000 (Qld) |
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
King Developments Pty Ltd (‘King’) purchased a Ford utility motor vehicle from Mr Mayne. A dispute arose as to removal of the vehicle from the repairable write off register. King made a claim on the fund under the Property Agents and Motor Dealers Act 2000 (Qld).
The claim was referred to the Tribunal. The Tribunal received submissions from both parties and from the Chief Executive Department of Justice and Attorney-General, and heard the matter on the papers. An order was made on 9 April 2014 dismissing the Application by King for a claim on the fund.
King filed an Application for leave to appeal or appeal on 8 May 2014. Directions were given on 12 May 2014 as to filing of submissions by the parties by 13 June 2014 and 14 July 2014 respectively. No submissions have been received.
Directions were given on 23 July 2014 that the Application would be determined on the papers before a Member of the Tribunal without an oral hearing. This is the decision on the Application.
The Grounds of Appeal are as follows:
The Applicant did not receive a copy of the Respondent’s Statement of evidence in response as required by the tribunal’s direction of 4 December 2013.
The Applicant only became aware there was a Respondent’s statement when reading the Tribunal’s decision of 9 April 2014.
The Applicant made an enquiry to QCAT about the statement by the Respondent and was informed there was none submitted.
On 1 May 2014 the Applicant again rang QCAT and this time the respondent’s statement was found – in the Applicant’s file. A meeting at QCAT was arranged later that day and the Applicant received a copy of the Respondent’s statement.
King seeks the following orders:
The Applicant requests the Tribunal set aside the 9 April 2014 decision and to reconsider the case and include the Applicant’s reply to the Respondent’s statement in its deliberations. (Applicant’s reply attached).
King attached a Reply to the Response of Mr Mayne which it would have filed if given the opportunity, to the Application for leave to appeal or appeal. That Reply consists of almost three pages of closely typed submissions.
Direction 2 of the Directions given on 4 December 2013 in the initial application on the referral provided that Mr Mayne was to give a copy of his material including any statements of evidence in Response to King by 6 February 2014.
The Directions given on 4 December 2013 in the initial application on the referral provided that King was to provide any Reply to the Response by 6 March 2014.
Mr Mayne has not disputed the allegation that he did not provide a copy of his Response to King as directed. I therefore accept the submission made by King that it was not provided with a copy of the Response, and therefore did not have an opportunity to reply to it.
It is a matter of natural justice that a party should have an opportunity to respond to material put before the Tribunal by another party. Further, in this matter, there was a Direction by the Tribunal to that effect.
The Reply contests issues that were considered by the learned Member in deciding the matter on the papers. The Member did not have the benefit of being able to consider that Reply.
The factual situation in this matter is quite complex, and the submissions by King are detailed, but difficult to discern due to the style of writing and presentation.
King is entitled to have an opportunity to have its full case considered, and the Tribunal can only make a proper decision having considered the full submissions of all parties.
The learned Member would have been unaware that Mr Mayne had failed to give a copy of his submissions in response to King, and would have taken that King was not making any Reply to the Response.
The failure by Mayne to comply with the directions has therefore led the Tribunal into making a decision without having access to all relevant material.
It is unsafe and unfair to let the decision stand without having regard to the Reply of King.
The Appeal Tribunal has a discretion in deciding an appeal against a decision on a question of law[1] to:
a) confirm or amend the decision; or to
b) set aside the decision and substitute its own decision; or to
c) set aside the decision and return the matter to the Tribunal who made the decision for reconsideration.
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 146.
Determinations of fact are made by the Tribunal at first instance. Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[2]
[2]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
Having regard to the complexity of the factual situation in this matter, and the possibility that the Tribunal may have to make inferences or further determinations of fact, I consider it prudent that the matter be returned to the Tribunal to reconsider in light of the full submissions, and to make any necessary findings of fact.
It may be that the Tribunal will come to the same decision after re-considering the matter in light of the full submissions, or it may come to a different decision. As a matter of due process and fairness though, the matter should be reconsidered.
I therefore set aside the decision and return the matter to the Tribunal who made the decision for reconsideration, taking into account the Reply of King attached to the Application for leave to appeal or appeal.
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