Kotev v Funtalis
[2011] QCATA 153
•22 June 2011
| CITATION: | Kotev v Funtalis and Ors [2011] QCATA 153 |
| PARTIES: | Mr Eric Kotev |
| v | |
| Mr Thon Funtalis Ms Catherine Cohder Elite Services Realty Pty Ltd |
APPLICATION NUMBER: APL113-11
| MATTER TYPE: | Appeals |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Richard Oliver, Senior Member Peta Stilgoe, Member |
DELIVERED ON: 22 June 2011
DELIVERED AT: Brisbane
ORDERS MADE: Leave to appeal refused.
| CATCHWORDS : | PROCEDURE – where appellant alleged a disability – where appellant did not call witnesses at hearing – whether fair hearing REAL ESTATE COMMISSION – where exclusive agency form executed – where appellant engaged another agent within the exclusive agency period – where agent sought payment of commission – where appellant alleged alteration of appointment form Queensland Civil and Administrative Tribunal Act 2009, s 29(1) QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 Kioa v West (1985) 159 CLR 550 Fox v Percy (2003) 197 ALR 201 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Mr Oliver
In this matter the Appeal Tribunal consisted of Ms Stilgoe, QCAT Member and me. I have had the benefit of reading her reasons in draft. I agree with her reasons, and her conclusions, and the order she proposes.
Ms Stilgoe
On 17 April 2009, Mr Kotev appointed Elite Services Realty Pty Ltd as exclusive agent to sell his property. The appointment noted that the exclusive agency would expire on 18 June 2009. On 5 June 2009, Mr Kotev appointed another agent to sell his property. The property did sell. Elite brought proceedings in the tribunal claiming commission in the sum of $9,432.50 on the basis of its exclusive agency and that it introduced the eventual buyer to Mr Kotev’s property. At a hearing on 15 March 2011, the learned Adjudicator ordered Mr Kotev pay Elite the amount of the claim plus the filing fee.
Mr Kotev has appealed the decision. His grounds for appeal are stated as:
a) He is disabled.
b) The learned Adjudicator didn’t let Mr Kotev speak properly.
c) There is evidence of fraud.
d) Mr Kotev had witnesses that did not give evidence at the hearing.
Because this is an appeal from a decision of the tribunal’s minor civil dispute jurisdiction, leave is necessary. The question whether or not leave to appeal should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[4]
[1] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2] Cachia v Grech [2009] NSWCA 232 at [13].
[3] QUYD Pty Ltd v Marvass Pty Ltd (supra).
[4]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
Mr Kotev’s disability
The nature of Mr Kotev’s disability is not clear from the transcript of the proceeding but a disability, in itself, is not a ground for leave to appeal. If Mr Kotev could point to some unfair treatment because of his disability, or that the proceedings were not conducted in a way that recognised and was responsive to his disability[5], that would be a ground for leave to appeal. There is no evidence from the transcript that Mr Kotev’s disability prevented him from understanding the proceedings or that the proceedings were conducted in a way that did not take account of his disability.
[5] Queensland Civil and Administrative Tribunal Act, s 29(1)(c).
The conduct of the proceedings
It is clear that Mr Kotev has an issue with the way that the learned Adjudicator conducted the hearing. It is true that the learned Adjudicator did not conduct the hearing in a way which is consistent with the tribunal’s usual standards. The learned Adjudicator:
a) Used inappropriate language when discussing Mr Kotev’s submissions;[6] and
b) Cut Mr Kotev off in mid-sentence.[7]
[6] Transcript, page 10, line 1; page 14, line 28; page 15, line 21.
[7] Transcript, page 9 lines 12 and 32.
However, as Mason J (as his Honour then was) observed in Kioa v West,[8] the requirements of procedural fairness must be adjusted to the statutory framework governing the Tribunal in question:
What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting (Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 552-3; National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 at 311, 319-321).
In this respect the expression ‘procedural fairness’ more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations…
[8] (1985) 159 CLR 550 at 584-585.
While the learned Adjudicator’s conduct of the hearing was not ideal, for the reasons which follow, I am not persuaded that the irregularity of the procedure amounted to a failure to provide procedural fairness.
Fraud
The evidence of fraud to which Mr Kotev refers is the apparent tampering with the date in the appointment of agent form. This issue was critical to Mt Kotev’s case and most of the hearing was devoted to an examination of the document.
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.[9] An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.[10] As the High Court said in Fox v Percy:
In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must not ‘shrink from giving effect to its own conclusion.
[9]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 197 ALR 201 at 207, 208.
[10] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
The learned Adjudicator was not satisfied that there was any evidence of tampering from the face of the document. The evidence at the hearing is capable of supporting that finding and I can find no reason to overturn it.
Witnesses
Mr Kotev also complains that he did not have an opportunity to call witnesses that would support his case. At the hearing, he ascribed his failure to call witnesses to the fact that he was not a lawyer and that he was appearing before a tribunal, not a court.[11]
[11] Transcript page 13, lines 5-9.
This is a curious statement given the history of the proceeding. On 4 August 2010, the tribunal issued a decision in favour of Elite in default of Mr Kotev filing a response. Mr Kotev was successful in an application to set aside the decision. Mr Kotev’s application referred specifically to the fact that he would like to call witnesses. As the tribunal has already noted[12] the tribunal’s website provides information for parties attending a hearing which includes the need to bring necessary witnesses. There can be no excuse in this case for Mr Kotev not to bring relevant witnesses to the hearing.
[12]ABSS Trust t/a Academy of Beauty, Spa and Sport v Nicholls [2011] QCATA 57 at [7].
Conclusion
Despite a somewhat heavy-handed approach by the learned Adjudicator at the hearing, I am satisfied that there is no reasonably arguable case of error by the learned Adjudicator; there is no reasonable prospect of substantive relief on appeal; there is no substantial injustice and there is not question of general importance on which the public requires a decision of the appeals tribunal. Leave to appeal should be refused.
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