Neal v Wylie
[2013] QCATA 280
•4 October 2013
CITATION: | Neal v Wylie [2013] QCATA 280 |
PARTIES: | Kenneth Michael Neal |
| v | |
| Lynette Wylie |
| APPLICATION NUMBER: | APL314-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr J R Forbes, Member |
| DELIVERED ON: | 4 October 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal granted. 2. Appeal allowed. 3. The orders made herein on 6 July 2013 are set aside. 4. The proceeding instituted by application D236/12 on 23 August 2012 shall be reheard by a different Adjudicator, on a date to be advised. 5. No order as to costs. |
| CATCHWORDS: | MINOR CIVIL DISPUTE – CONSUMER DISPUTE – application for leave to appeal – action to recover fee or contribution to appellant/respondent for attempting to recover moneys had and received to the use of applicant – whether appellant/respondent principal or agent – whether his organisation properly co-respondent or sole respondent – whether application form apt to mislead – whether judgment debtor sufficiently identified – whether proceedings at first instance amenable to due consideration on appeal – order for rehearing Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 3, 13, 28, 29, 32, 64 Dann v Gold Coast City Council [2013] QCATA 220 Brownie & Anor v Penfold [2013] QCATA 182 Wilson v Bury (1880) 5 QBD 518 NE Timber Importers v Arendt & Sons and Impresa Cerrito [1952] 2 Lloyd’s Rep 513 |
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.
REASONS FOR DECISION
The appellant Neal is director of an organisation variously described as “The White Knights” and “The White Knights for Justice Pty Ltd” which professes to –
... represent victims of injustices who [have] been deprived of receiving recognition, compensation and justice ... White symbolises purity, `Knight’ loyalty, bravery and honesty, and saviours of the realm. Today, being a White Knight is perceived as a rescuer and doing good in the community.
Two or three years ago (the precise date is unavailable and is not now material) Ms Wylie, prudently or imprudently, gave $100,000 to a Ms Orchard to invest in property on Wylie’s behalf. When Orchard failed to account for the money, Wylie asked Neal’s organisation to attempt recovery. Neal and/or the White Knights agreed to do so, on payment of $3,000. Neal describes that sum as a voluntary “contribution”; Wylie regards it as a collector’s fee, for which, she says, she has received no consideration. There is also a question of acting as an unlicensed commercial agent.[1] For reasons that will appear, I need not examine those issues now.
[1]Property Agents and Motor Dealers Act 2000 ss 339, 346, 354.
On 23 August 2012 Ms Wylie initiated a minor civil dispute, seeking “to have $3,000 returned due to non performance”. On 9 July 2013 the Tribunal awarded her that amount. From that decision Mr Neal and (presumably[2]) White Knights seek leave to appeal.
[2]The application is on a Form 39, with its invitations to uncertainty of parties, namely “Company/Partnership/Other” and “Business Name” below the applicant’s name. See further, paragraph [5], below.
Reluctant as I am to postpone finality in this relatively small claim, the proceedings as they stand are not amenable to a substantive decision on appeal. There is manifest confusion about the identity of the proper respondent or respondents, and it is uncertain whether judgment has been given against Neal personally, or against the White Knights organisation, or both.
Once again Form 39 Part A (Respondent’s Details) has led to unclear identification of parties by an unrepresented litigant. The original application names just one respondent, “Mike Neal”. But in the sub-box headed “Business Name” there appears “The White Knights for Justice”, merely indicating, on its face, the business in which Neal is involved. Strictly speaking, that does not join White Knights (incorporated or unincorporated) as a co-respondent. This point is one of substance, not technicality. The Tribunal is to do justice according to law, and must not risk giving judgment against a non-party, or against an agent as if he were a principal. Clear and precise interpretation of Form 39, and the answer to it is not, for lay litigants at least, intuitive.[3] As this case illustrates, it is apt to create difficulties for the Tribunal itself.
[3] Contrast the simple, well-signposted answer in Rayner & Anor v Trabme Pty Ltd t/a Elders
Redcliffe [2013] QCATA 212 at [46].
The trial began on the basis that Neal and The White Knights for Justice Pty Ltd (“White Knights”) were co-respondents,[4] and ends in a Minor Civil Dispute Order, completed by hand, naming “Respondent” (singular) as “Mike Neal & White Knights for Justice P/L” and proceeding: “It is ordered that the Respondent (singular) pay to the Applicant the sum of $3,098”. The Decision formally issued by the Principal Registrar follows the same pattern.
[4] Decision 9 July 2013 page 2 lines 1-3.
Evidently Neal raised no defence of agency, but the Adjudicator made these findings:
I am satisfied ... that the terms of the agreement between White Knights and Ms Wylie were for White Knights to use its best endeavours to retrieve the moneys owing.[5]
I am satisfied that the terms of the contract were that Mr Neal, on behalf of White Knights, promised to use his best endeavours to retrieve the moneys owing. They are the exact words of Mr Neal in Exhibit 2.[6]
I am satisfied ... that White Knights is in fundamental breach of the terms of its contract ... [7]
[5] Decision, page 2 lines 38-40.
[6] Decision page 3 lines 4-6, emphasis added.
[7] Decision page 4 lines 39-41.
Those findings appear to characterise Neal as an agent, and it is well-settled law that an agent is not normally liable upon a contract made for his principal.[8]
[8] Wilson v Bury (1880) 5 QBD 518; Montgomerie v United Kingdom Steamship Association
[1891] 1 QB 370 at 371; NE Timber Importers v Arendt & Sons and Impresa Cerrito [1952] 2 Lloyd’s Rep 513.
But elsewhere Neal and White Knights appear to be treated as co-contractors:
I find that the terms of the contract, as I’ve stated, were that Mr Neal and White Knights were to use their best endeavours ... [9]
[9] Decision page 4 lines 2-3.
The legislature has directed the Tribunal to promote the quality and consistency of its decisions.[10] In dealing with a minor civil dispute the Tribunal must make orders that it considers fair and equitable to the parties.[11] Generally, procedure is at the discretion of the Tribunal, and so far as possible it must ensure that there is a proper consideration of matters before it, and that all relevant matters are disclosed to it.[12] It must ensure that the parties understand the nature of the assertions made, and their legal implications.[13] In so doing it is not bound by court practices, and, subject to natural justice, may inform itself as it sees fit.[14]
[10] QCAT Act s 3(c).
[11] QCAT Act s 13(1).
[12] QCAT Act s 28(1), (3)(d),(e); Dann v Gold Coast City Council [2013] QCATA 220 at [8];
Brownie & Anor v Penfold [2013] QCATA 182 at [21].
[13] QCAT Act s 29(1)(a)(ii).
[14] QCAT Act s 28(3)(b),(c).
The Tribunal may, at any stage of a proceeding, at the request of a party, or on its own initiative, order a relevant document to be amended.[15] I do not propose to make such an order here, lest it trespass on the parties’ right and duty to present their cases as they see fit.[16] However, if they reconsider their pleadings or submissions in the light of this decision, so be it.
[15] QCAT Act s 64(1),(2).
[16] See the cautious note in Brownie & Anor v Penfold [2013] QCATA 182 at [21].
On appeal, Neal contests liability on behalf of himself and (presumably[17]) White Knights. Despite Neal’s failure to specify appealable error, I am not satisfied that error has been avoided. Regretfully I have decided to allow the appeal and to remit this case for rehearing, so that the precise identity of parties, their legal roles, and liability, if any, may be more closely examined. Precisely who is/are the original respondents, and the present appellant/s? Who is “the respondent” against whom judgment was given, and on what basis? Findings that are relevant if Neal is a principal may be irrelevant if he is an agent. Findings that are relevant if White Knights is properly a co-respondent may be inapplicable if it is not.
[17] See paragraph [5] and footnote 2.
ORDERS:
1. Leave to appeal granted.
2. Appeal allowed.
3. The orders made herein on 6 July 2013 are set aside.
4. The proceeding instituted by application D236/12 on 23 August 2012 shall be reheard by a different Adjudicator, on a date to be advised.
5. No order as to costs.
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