Kokoda Spirit Pty Ltd v Harris

[2011] QCATA 154

CITATION: Kokoda Spirit Pty Ltd v Harris [2011] QCATA 154

PARTIES:	Kokoda Spirit Pty Ltd CAN 111 575 378 (Applicant/Appellant)
v
Mr Andrew Robert Harris (Respondent)

APPLICATION NUMBER: APL200-11

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Richard Oliver, Senior Member

DELIVERED ON: 23 June 2011

DELIVERED AT: Brisbane

ORDERS MADE:

1.        Leave to appeal granted

2.        Appeal allowed

3.        The parties have leave to be legally     represented.

CATCHWORDS:

Legal representation – where complex issues of law – where respondent experienced lawyer – where complex pleading claiming breach of the Trade Practices Act

Queensland Civil and Administrative Tribunal Act2009, ss 43, 142(3)

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

1. This is an appeal from a decision made in the minor civil disputes jurisdiction refusing the applicant a grant of leave to be legally represented in the minor civil dispute proceeding.  Not only does this appeal relate to minor civil dispute number 875-11, there are other related matters which are referred to in part B of the application for leave to appeal.

1. Briefly, the relevant facts relating to the minor civil dispute proceedings involve the respondent undertaking a guided tour arranged by the applicant, in Papua New Guinea commencing on 24 May 2010.  Each of the applicants in the minor civil dispute proceedings, which are being heard together, have claimed damages for breach of contract and damages for breach of section 52 of the Trade Practices Act and section 38 of the Fair Trading Act.  The substance of the dispute relates to the failure of the respondent to provide an Australian guide, as it was contractually required to do, for the tour.  Apparently the guide that was allocated to the tour became ill and could not complete it.

1. The grounds of appeal are extensive, but in essence, allege error on the part of the decision maker for the following reasons:

(a)     Mr Harris, the applicant in MCD875-11, is an experienced solicitor who seems to be acting, in a de facto way, for the applicants in the other related proceedings referred to in the application for leave to appeal.

(b)     The way the claim is framed in the minor civil dispute application is in the nature of a formalised statement of claim of the type one may expect to see in the higher courts.

(c)     Allegations of misleading and deceptive conduct have been made on the part of the respondent which involve questions of whether representations were made, whether they were misleading or deceptive, whether each of the applicants relied on those representations and whether as a consequence of relying on those representations they have suffered loss and damage.

(d)     The respondent has no legal expertise to meet the allegations put by each of the applicants in the minor civil dispute proceedings.

1. It is evident from the correspondence annexed to the application for leave to appeal, and which was not before the decision maker, that Mr Harris has applied his knowledge and skill as an experienced litigation solicitor to mount his claim for damages against the respondent.  There can be no doubt that even in the informal processes of QCAT, in particular the without prejudice mediation discussions that will occur on 30 June 2011, this legal expertise will come to bear in negotiations and subsequent prosecution of each of the claims, if not resolved.  The applicant cannot match this legal expertise in the somewhat complex area of misleading and deceptive conduct.

1. Although the factual matters pleaded do have a degree of simplicity, the legal consequence from those pleaded facts as particularised in the statement of claim can be quite complex and I accept the submission of the respondent that this is the case.

1. As this is an appeal from a decision in the minor civil dispute jurisdiction leave is necessary.[1]

[1] QCAT Act section 142(3).

1. Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief.  Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?

1. I am satisfied that the decision maker in this case did not appreciate all of the relevant complexities of Mr Harris’ pleaded claim against the respondent. I am satisfied that there is sufficient complexity to satisfy section 43(3)(b) of the Act and a detailed response will be required to meet the allegations brought by the applicants in a minor civil dispute proceeding. As a consequence the decision maker was in error in not granting legal representation.

1. In the circumstances leave to appeal will be granted, the appeal will be allowed and the order of the Tribunal will be that the parties have leave to be legally represented in the proceeding.