Nelson v Brooks

[2018] QCATA 138

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Nelson v Brooks [2018] QCATA 138

PARTIES:

WENDY NELSON
(applicant/appellant)

v

PAMELA BROOKS

(respondent)

APPLICATION NO/S:

APL317-17

ORIGINATING APPLICATION NO/S:

MCDO697-17 (Brisbane)

MATTER TYPE:

Appeals

DELIVERED ON:

12 June 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Howard

Member Traves

ORDERS:

1.   The application for leave to appeal is refused.

CATCHWORDS:

APPEAL – MINOR CIVIL DISPUTE – TRADER AND CONSUMER CONTRACT DISPUTE – caravan sold prior to performance of hire contract – different caravan substituted by agreement – caravan supplied not clean or hygienic – consumer returned it and hired a caravan from different supplier – Tribunal awarded difference between cost of hiring alternative caravan and cost paid to appellants – where a differently constituted Tribunal had earlier refused application for transfer of hearing venue – where decision appealed on basis hearing held in Brisbane and Tribunal breach of procedural fairness – whether appellant afforded procedural fairness – whether appellant given adequate opportunity to present her case – whether bias of Tribunal

Australian Consumer Law (Qld), s 55, s 259.
Fair Trading Act 1989 (Qld) s 16, s 50
Queensland Civil and Administrative Tribunal Act2009 (Qld) s 12, s 142(3)(a)(i), Schedule 3

Zanetti & Anor v Pierpoint (No 2) [2011] QCAT 334

APPEARANCES:

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

1. This matter began in the Minor Civil Disputes (MCD) jurisdiction of the Queensland Civil and Administrative Tribunal (Tribunal) as a dispute between Wendy Nelson and Pamela Brooks who operates a business under the name ‘Queensland’s Cheapest Caravans and Trailers’.

2. On 16 January 2016, Ms Nelson entered into an agreement with Ms Brooks t/as Queensland’s Cheapest Caravans and Trailers to hire a specific Golf Slipstream caravan for 2 weeks from 28 April 2016 to 12 May 2016 at a cost of $610.00. Ms Nelson had seen photographs of the van on the business’ website. A $200.00 deposit was paid that day with the balance paid some weeks prior to 28 April 2016.

3. At 4:00pm on 27 April 2016, the day before her holiday was due to commence, Ms Nelson received a text message from Ms Brooks stating, in effect, that the Golf van had been sold and that she would be delivering a “bigger van” to the relevant site the next day.

4. The next day, Ms Nelson and her holiday companion arrived at the site and inspected the van. They were both immediately concerned by the state of the van. Ms Nelson stated in her application:[1]

   The caravan, in my opinion, was uninhabitable as even before we went through the door…The awful smell emanating from inside was disgusting. The dust, dirty floor, mould and insects was absolutely appalling,. The microwave which was on the floor was filthy and the fridge was not much better. The two single beds were the kitchen seats and very narrow. By this time, we felt dusty and itchy from being inside the van.

   [1]Application for Minor Civil Dispute filed 23 February 2017.

5. Ms Nelson and her companion refused to sleep in the van and slept instead in the passenger seat of their respective cars. The following day Ms Nelson hired an alternative van from a different supplier at a cost of $1560.00 plus bond. Ms Nelson sought in her application a total of $2,282.50 comprising $610.00 by way of refund of the money she had paid to Ms Brooks, $1,560.00 being the cost of the caravan ultimately hired and $112.50 being a refund of the Tribunal filing fee.[2]

   [2]Ibid, 2.

6. On 23 August 2017, the tribunal registry posted notices of hearing to the parties advising them that the proceeding would be heard in Brisbane on 12 September 2017 at 9.30am. On 30 August 2017, Ms Brooks sent an email to the registry requesting a hearing in Nambour or Maroochydore because ‘Brisbane is too far away’. The tribunal registry informed Ms Brooks that she could make an application for transfer in the appropriate form, and if she did so, it would be referred to the Tribunal for a decision to be made on that application.

7. On 4 September 2017, Ms Brooks filed an application for transfer, making submissions that she ‘would not even know how to get to’ Brisbane and, in effect, that it was ‘far too hard to find your way around’ Brisbane. Her application for transfer was refused by the Tribunal in an on the papers hearing. On 7 September 2017, the parties were forwarded copies of the Tribunal’s orders, refusing the application for transfer and directing that the respondent may attend the hearing by telephone ‘if required’.

8. On 12 September 2017, the differently constituted Tribunal conducted a hearing. Ms Brooks attended the hearing by telephone. The Tribunal ordered that Ms Brooks pay to Ms Nelson the sum of $1,062.50 being the difference between the cost of hiring the alternative van ($1,560.00) less the amount paid to Ms Brooks ($610.00), plus the tribunal filing fee ($112.50).

9. In its reasons for decision, the Tribunal referred to the terms of the contract, in particular clauses 1 and 6, which were contained in a document titled ‘Queensland’s Cheapest Caravans Rental Conditions’. Clause 1 provided:

   All vans must be returned in a clean and hygienic condition as given to you originally.

10. Clause 6 provided:

    When a caravan is returned we’ll need to have vans thoroughly cleaned, bedding washed and fridges especially cleaned.

11. The Tribunal determined that the contract gave rise to an expectation that the hired van would be in a clean and hygienic condition before its use, having been thoroughly cleaned including washed bedding and cleaned fridges. It accepted based on Ms Nelson’s testimony and on a notated inventory signed by ‘Merv’, the contractor who delivered the caravan, that the van was not in such a condition and accordingly, that Ms Brooks was in breach of contract.

12. Ms Brooks has appealed the decision on the following grounds:

    I requested this to be heard at Nambour Form 40. I heard nothing until Friday 8/9 before being advised that my request had been denied. I question tactics used by judicial member as attitudes and decisions seem extremely biased. The applicant is allowed to voice their version but the respondent is interrupted and not allowed to present tangible evidence in defence. I am disgusted at biased unfair decisions and exorbitant costs. Our caravans are budget priced caravans and priced accordingly and when compared to new caravans at over $1000 per week, plus huge bonds, they are all on the internet or customers are encouraged to have a look on site. I should not have to compensate new van prices. Not one of our vans ever leaves onsite without being cleaned and at the end of the day it is our word against theirs.[3]

    [3]Application for Leave to Appeal filed 4 October 2017.

    Leave to Appeal/Appeal

13. Despite the assertions made by Ms Brooks in the grounds of appeal, the Tribunal as constituted for the hearing was not a judicial member of the Tribunal.[4] An appeal against a decision of the tribunal not constituted by a judicial member in a proceeding for a minor civil dispute requires the appeal tribunal’s leave.[5] As is customary in the Tribunal, the application for leave to appeal and the appeal were heard together.

    [4]This is relevant because it determines the path an appeal must take: under s 142, a party may only appeal to the appeal tribunal if a judicial member did not constitute the tribunal (s 142(1)) whereas, s 149 applies to an appeal against a decision of a judicial member of the tribunal.

    [5]Queensland Civil and Administrative Tribunal Act2009 (Qld) (QCAT Act), s 142(3)(a)(i).

14. Ms Brooks makes allegations on her appeal, essentially, of a denial of procedural fairness. Firstly, in being denied her application to have the matter heard in Nambour.  Secondly, she alleges bias in the conduct/or attitudes of the Member during the proceeding. Thirdly, she alleges, in effect, that she was not given a reasonable opportunity to present her case at the hearing.

15. Ms Brooks also seems, in effect, to allege that the Member erred in accepting Ms Nelson’s evidence in preference to her own. Finally, she alleges that the Tribunal erred in calculating damages by awarding the difference between the contract price and the cost of the alternative van hired by Ms Nelson, as opposed to one of a similar kind to those hired by Ms Brooks.

16. The essential requirements of procedural fairness are that all parties are given a fair hearing, by an impartial decision-maker. For parties to have a fair hearing, they must have adequate notice of the hearing and a reasonable opportunity to present their case (including testing the other party’s case, responding to the case made against them, and making submissions).  

17. The Tribunal decision refusing the transfer of the proceeding to Nambour was made prior to the hearing by a differently constituted Tribunal. It has not been appealed. Therefore, there is no merit in these appeal proceedings in respect of the ground alleging the failure of the Tribunal to transfer or hold a hearing in Nambour. In any event, we make the observation that the requirement to afford procedural fairness does not extend to accommodating unilateral requests that a proceeding be heard in a particular location. Although Brisbane was not Ms Brooks’ preferred venue (despite there being no reason advanced that she was in fact unable to attend the hearing in Brisbane), she received adequate notice that the matter was to be heard in Brisbane, and when her transfer application was refused, she was given leave to attend by telephone if she wished. Ms Brooks did attend the hearing by telephone.

18. Regarding the alleged bias of the Tribunal, Ms Brooks does not allege actual bias. That said, bias may be reasonably apprehended. The Appeal Tribunal has said that the test for apprehended bias is whether a reasonable observer, aware of the facts, could properly suspect a lack of impartiality or feel a reasonable apprehension that the Tribunal might not bring fair and unprejudiced views to the resolution of the question.[6] Ms Brooks suggests bias arises because she was interrupted and not allowed to give evidence in response. These arguments appear to go more to an allegation that she was not afforded a fair hearing than of bias, but we have considered them in relation to both. We have read the transcript of the hearing. Both parties were given a fair opportunity to present their respective case and respond to the other party’s case.  We are satisfied that the transcript reveals nothing that suggests that the Tribunal was not impartial. Ms Brooks interrupted on several occasions and was asked, in effect, to wait her turn.

    [6]Zanetti & Anor v Pierpoint (No 2) [2011] QCAT 334, [24].

19. Further, the Tribunal did not err in accepting Ms Nelson’s evidence over that of Ms Brooks’. There was controversy between them as to the state of the caravan when it was delivered to Ms Nelson. To decide the matter, the Tribunal was required to accept the evidence of one party over the other. Based on the evidence before it, it accepted Ms Nelson’s evidence. It appears to have done so because ‘Merv’, an employee of Ms Brooks, signed the inventory relied upon by Ms Nelson, noting the defects of concern to Ms Nelson. The Tribunal could have more clearly articulated that it considered Ms Nelson’s evidence was more compelling and deserving of greater weight in view of Ms Brooks’ failure to present any evidence from Merv to suggest that it was not his signature or that he did not in fact agree with the inventory he had signed. In order for the Tribunal to have erred in preferring Ms Nelson’s evidence there must have been no reasonable basis for the Member doing so. We find that there was a reasonable basis.

20. Finally, damages for breach of contract are to be assessed so as to place the parties in the position they would have been in, had the contract been performed. Had the contract been performed, Ms Nelson would have obtained a van for her holiday at a cost of $610.00. Instead, she was placed in a position where she had to hire an alternative van from a different supplier at a cost of $1,560.00. Accordingly, Ms Nelson suffered loss of $950.00, together with the filing fee incurred in the bringing of these proceedings. The Tribunal correctly calculated damages.

21. It is sufficiently clear from the Tribunal’s reasons that it proceeded on the basis of its finding that there was an implied term that at commencement of the hire period, the van was to be in a clean and hygienic condition which included washed bedding and cleaned fridges. It considered this implied term arose from the requirement to return the van in a ‘clean and hygienic condition as given to you originally.’ It awarded damages for breach of contract on that basis.

22. For completeness, although Ms Brooks has not alleged error in the Tribunal’s decision on this alternative basis, we observe that the goods the subject of the hire contract were subject to a term implied at common law and to a statutory guarantee that they be fit for their disclosed purpose.[7] The Australian Consumer Law text has been adopted by the Fair Trading Act 1989 (Qld) and applies in Queensland.[8] The Tribunal has jurisdiction to consider the application of the Australian Consumer Law where the nature of the proceeding is one listed in s 50 of the Fair Trading Act 1989 (Qld)[9] and it is a minor civil dispute as defined by the QCAT Act.[10] The guarantee as to fitness for purpose applies to goods the subject of a hire contract as well as to sales.[11] Alternatively, at common law, an equivalent term would be implied. On the basis of the Tribunal’s findings, we observe that any such term or guarantee was not complied with. The damages, had the Tribunal applied the law discussed in this paragraph, would have been the same as found by the Tribunal.[12] Therefore, the Tribunal’s failure to also consider this issue would not in any event have been material to the outcome of the proceeding.

    [7]Australian Consumer Law (Qld) s 55.

    [8]Fair Trading Act1989 (Qld) s 16.

    [9]Here, an action to recover damages because of a failure to comply with a guarantee under s 259(4) of the Australian Consumer Law (Qld).

    [10]Fair Trading Act1989 (Qld), s 50(1).

    [11]Australian Consumer Law (Qld), s 2 definition of “supply”.

    [12]As to the Australian Consumer Law (Qld), see s 259(4).

    Conclusion and orders

23. For the reasons explained, the appeal would not succeed. Leave to appeal should be refused.

24. We make orders refusing leave to appeal.