McBurnie v Boctor - [2021] QCAT 349

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

McBurnie v Boctor [2021] QCAT 349

PARTIES: TAMSIN MCBURNIE

(applicant)

v

DR RAYMOND BOCTOR

(respondent)

APPLICATION NO/S:

MCDO 00028/21

MATTER TYPE:

Other minor civil dispute matters

DELIVERED ON:

27 October 2021

HEARING DATE:

On the papers

HEARD AT:

Coolangatta

DECISION OF:

Adjudicator Alan Walsh

ORDERS:

The Application for minor civil dispute – consumer dispute filed on 9 August 2021 is dismissed for lack of jurisdiction, and under section 47(1)(c) and section 47(2)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) for abuse of the Tribunal’s process.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where Applicant a consumer where Respondent a medical Doctor – where Applicant claimed damages for alleged dental malpractice

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – JURISDICTION – whether Respondent a trader as defined in Schedule 3 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – whether Tribunal jurisdiction enlivened – whether claim one for compensation for personal injury

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – ABUSE OF PROCESS – where Applicant a frequent claimant in Tribunal minor civil dispute jurisdiction – where Applicant familiar with Tribunal processes and procedures – whether Tribunal has jurisdiction – whether Applicant abused Tribunal process

Australian Consumer Law (Qld), s 2, s 3, s 18, s 20, s 54, s 60, s 61, s 236

Fair Trading Act 1954 (Qld), s 16, s 19, s 50

Health Practitioners Regulation National Law Act 2009 (Cth), s 121
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 12, s 13, s 29, s 47, s 49, s 102, Schedule 3 - definition of “trader”

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 83

Amos v Walter [2020] QCAT 360

Amos v Walter [2021] QCATA 105
Bates v Horsnell [2011] QCATA 329
Early Group Valuers v Cavillaro [2010] QCATA 65-
Fisher v Wenzel & Anor [2016] QCAT 456
Hashfield v Gold Coast City Council [2020] QCATA 36 Helyar v Civil and Property Development Consulting Pty Ltd (in liquidation) & Ors [2020] QCAT 465,
Holman and Ors v Deol and Ors [1979] 1 NSWLR 640
McDonald v Kenmore Podiatry Pty Ltd [2012] QCAT 126
Prestia v Aknar (1996) 40 NSWLR 165

Walton v Gardiner (1993) 177 CLR 378, at 392 to 393

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

Applicant’s Consumer Claim

Ms McBurnie is suing Dr Raymond Boctor in these minor civil dispute – consumer dispute proceedings, filed on 9 August 2021, for compensation for damages allegedly suffered as a result of dental treatment at his clinic in Bundall in the period 2016 to 2018, said to have caused a condition described as a “Class II Division 1 Malocclusion 6mm overjet” requiring revision dentistry. Ms McBurnie claims $25,000.00, the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McBurnie v Boctor

Details

AGLC: McBurnie v Boctor [2021] QCAT 349
Case: [2021] QCAT 349
Decision Date

CaseChat Overview and Summary

In McBurnie v Boctor, the Queensland Civil and Administrative Tribunal (QCAT) was faced with a claim by Ms Tamsin McBurnie against Dr Raymond Boctor, a dentist, for damages she alleged resulted from dental treatment provided by Dr Boctor from 2016 to 2018. Ms McBurnie sought $25,000 in compensation, citing breaches of the Australian Consumer Law. The primary legal issues were whether Dr Boctor was a "trader" under the Queensland Civil and Administrative Tribunal Act 2009, and if the Tribunal had jurisdiction to hear Ms McBurnie's claim. Additionally, the court had to consider whether Ms McBurnie's persistent filing of unmeritorious claims constituted an abuse of QCAT's process.

The QCAT found that Dr Boctor, as a registered dentist, was not a "trader" within the meaning of the Act, as his professional activities in dentistry were not ordinarily regarded as within the field of trade and commerce. The Tribunal concluded that it lacked jurisdiction to hear the claim because Ms McBurnie's claim was not for a debt or liquidated demand of money, but rather a claim for compensation under consumer law, which required Dr Boctor to be a trader. Furthermore, the Tribunal found that Ms McBurnie's claim included elements of personal injury, which QCAT is not empowered to adjudicate. The Tribunal also determined that Ms McBurnie had abused the process by repeatedly filing unmeritorious claims, causing unnecessary inconvenience and resource expenditure on Dr Boctor.

Consequently, QCAT dismissed Ms McBurnie's claim for lack of jurisdiction and for abuse of process, barring her from refiling the same claim without prior leave from the President or Deputy President of the Tribunal. This decision underscores the importance of jurisdictional boundaries within consumer dispute resolution mechanisms and the consequences of abusing tribunal processes.

Orders