McKenzie-Lambert v Tulis - [2014] QCAT 61

CITATION:

McKenzie-Lambert v Tulis [2014] QCAT 61

PARTIES:	Ms Prisca McKenzie-Lambert (Applicant)
v
Mr Stanislav Tulis (Respondent)

APPLICATION NUMBER:

MCDO189/13

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

14 October 2013

HEARD AT:

Brisbane

DECISION OF:

Member Favell

DELIVERED ON:

31 January 2014

DELIVERED AT:

Brisbane

ORDERS MADE:	The application is transferred to the Brisbane Magistrates Court to be heard.
CATCHWORDS:	Claim for monies for repair to vehicle – Magistrates Court claim for damages caused by motor vehicle collision – application to transfer proceedings to Magistrates Court – whether subject matter more appropriately dealt with by Magistrates Court

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Ms Prisca McKenzie-Lambert

RESPONDENT:

Mr Stanislav Tulis

REASONS FOR DECISION

The Respondent on 4 September 2013 applied to the Tribunal for the directions including the directions that:
(a)   The applicants QCAT claim number 189 of 2013 be transferred and heard with the Brisbane Magistrates Court claim number 51285 of 2013;
(b)   In the alternative, QCAT claim number 189 of 2013 be stayed pending the conclusion of Magistrates Court claim number 52185 of 2013; and
(c)   In the further alternative, the respondent be legally represented at the hearing of QCAT claim number 189 of 2013.
The QCAT application 189/13 is a dispute claiming $2,900.70 said to be for repairs to a vehicle required because of an accident on 9 June 2013 where it is claimed the respondent’s vehicle collided with the back of the applicant’s vehicle.
The respondent has commenced on 26 September 2013 claim (52185/13) in the Brisbane Magistrates Court claiming $5,156.36 claimed as damages said to be caused by the collision between the plaintiff’s and the defendant’s vehicles on 9 June 2013 as a result of the negligence and/or reach of statutory duty of the defendant.
On 11 November the Tribunal ordered: “The application is transferred to the Brisbane Magistrates Court to be heard”.
Reasons were given for the order were as follows:
I am satisfied that the subject matter of the application would be more appropriately dealt with by the Brisbane Magistrates Court in conjunction with Magistrates Court number 51285 of 2013.
The applicant has applied for reasons because
The reason that was given in regards to the transfer of my QCAT claim to Brisbane Magistrates Court was not to my satisfaction. I need to know exactly why and how the decision was made in detail.
Both claims are related. Both arise out of the same circumstances and collision.
Submissions concerning the application for transfer were received from both parties.
The applicant (respondent to transfer application) opposed the transfer because:
(a)   The respondent did not attend mediation;
(b)   She believed QCAT is “more than capable of handling” the claim and there was no major injuries to any of the parties;
(c)   She sought the Magistrates Court claim be stayed or transferred to QCAT;
(d)   She believes that she has been responsible and fair to the respondent;
(e)   She suffers hardship and emotional and physical stresses because of the proceedings;
(f)   She submitted her claim first.
The applicant in QCAT has defended the Magistrates Court claim.
The insurer of the Mazda vehicle has instituted the Magistrates Court proceedings pursuant to its rights of subrogation in the name of the owner of the vehicle the respondent to the QCAT claim.
The applicant for the transfer submits that it would be practical for the QCAT proceeding to be heard with the Magistrates Court claim because the same evidence is relevant to both claims. Further it is submitted that proceeding in the Magistrates Court would allow for necessary disclosure.
The applicant in the Magistrates Court was indemnified by an insurer.
The insurer seeks to be represented as it will be responsible for any payment owed. It is submitted that representation would identify the issues in dispute and focus on the resolution of those issues to ensure a timely and efficient resolution of the matter.
Section 52 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) provides:
52 Transfer to more appropriate forum
(1) If the tribunal considers the subject matter of a proceeding or a part of a proceeding would be more appropriately dealt with by another tribunal, a court or another entity, the tribunal may, by order, transfer the matter to which the proceeding or part relates to the other tribunal, the court or the other entity.
(2) If the tribunal considers it does not have jurisdiction to hear all matters in a proceeding, the tribunal may, by order, transfer the matter or matters for which it does not have jurisdiction to—
(a) a court of competent jurisdiction; or
(b) another tribunal or entity having jurisdiction to deal with the matter or matters.
(3) The tribunal may make an order under subsection (2)(a) even though the proceeding has previously been transferred from a court to the tribunal under section 53.
(4) If the tribunal transfers a matter to another tribunal, a court or another entity (the relevant entity) under this section—
(a) a proceeding for the matter is taken to have been started before the relevant entity when it was started before the tribunal; and
(b) the tribunal may make the orders or give the directions it considers appropriate to facilitate the transfer, including an order that a party is taken to have complied with the requirements under an Act or other law for starting a proceeding before the relevant entity.
(5) An order under subsection (4)(b) has effect despite any other Act or law.
(6) The tribunal may act under this section on the application of a party to the proceeding or on its own initiative.
(7) The tribunal's power to act under this section is exercisable only by a legally qualified member.
(8) In this section—
proceeding includes a process for the consideration of a matter.
(Underlining inserted).
In my view,
(a)   The proceedings in the Magistrates Court have commenced and been defended;
(b)   The pleadings in the Magistrates Court seem to more clearly identify the issues;
(c)   The respondent is indemnified by an insurance company which has subrogated the rights of the respondent;
(d)   It is appropriate that the insurer be allowed to be represented;
(e)   Disclosure may assist the proper resolution of the matter;
(f)   There are clearly differing accounts of the causes, which, although they could be dealt with in QCAT, given the more advanced nature of the Magistrates Court proceedings it is appropriate that they be dealt with in the Magistrates Court;
(g)   The Tribunal has not been informed of any order to transfer the Magistrates Court proceedings to QCAT and because both actions are concerned with the same circumstances and accident it is appropriate that both actions be heard together.
In all of the circumstances I am satisfied that the subject matter of the QCAT application would be more appropriately dealt with by the Brisbane Magistrates Court in conjunction with Magistrates Court number 51285 of 2013.
The application is transferred to the Brisbane Magistrates Court to be heard.