Nielsen v Mr Sheetmetal
[2013] QCATA 230
•12 August 2013
| CITATION: | Nielsen v MR Sheetmetal [2013] QCATA 230 |
| PARTIES: | Mr Jason Nielsen (Appellant) |
| V | |
| M R Sheetmetal (Respondent) |
| APPLICATION NUMBER: | APL216-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | G Trafford-Walker, Judicial Member |
| DELIVERED ON: | 12 August 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The decision of the Tribunal on 15 April 2013 is set aside. 4. The matter is remitted to the Tribunal for rehearing by a different Member. 5. The parties are at liberty to call additional evidence. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – MINOR DEBT – where application for second party to be joined to proceedings – where Tribunal dismissed application to join and then determined substantive matter – where applicant seeks to appeal that decision – whether breach of natural justice – whether applicant received a fair hearing – whether leave to appeal should be granted |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
The Applicant seeks leave to appeal a decision of a Member of the Queensland Civil and Administrative Tribunal held at Nambour on 15 April 2013. At that time, the following orders were made:
(a)An application to join a second party was dismissed; and
(b)The Applicant was ordered to pay $1,606 plus some costs for goods ordered from M R Sheetmetal.
I have read the transcript of the proceedings before the Tribunal, and a number of matters are immediately apparent.
The parties to the dispute were not legally represented at the hearing. As often happens in such situations, lay people have difficulty in presenting their cases in a clear and logical manner. This, of course, makes the task for the Tribunal more difficult in deciding where the truth lies in any dispute. It also means that the Tribunal must be careful to ensure that the parties have the opportunity to present their case, and to test the case of the opponent.
The transcript shows that the hearing commenced as an application to join a Second Respondent. However, this quickly developed with an argument between the parties as to who actually ordered the goods, the subject of the claim, and other related matters.
Mr Nielsen stated, “I personally didn’t actually order the gates.”
Mr Ranson on behalf of M R Sheetmetal replied, “Yes, you did.”
A little later Mr Nielsen said, “The gates are actually ordered by my father. He came in – Ralph Nielsen.”
Shortly after, the Tribunal Member said to Mr Nielsen: “Sir, I don’t believe you.”
And again not long after that Mr Nielsen said, “I’m not responsible for that debt.”
The Tribunal Member then commented: “Well you are at the moment. You are at the moment…”.
The Tribunal Member continued: “I don’t accept it, Mr Nielsen. These people are out of pocket and it seems to me that you are responsible for it.”
Mr Nielsen responded: “Can we bring – can we bring by or get Ralph on the phone or somebody involving - - -.“
The Tribunal Member replied: “No, no, no, no. I’m dealing with this today, okay?”
At that stage, it is clear that the Member does not believe Mr Nielsen, is not going to give him the opportunity to present what Mr Nielsen believes is relevant evidence, and that Member is going to decide the matter that day.
In Mr Nielsen’s position, what would now be the purpose in calling his father, as the Tribunal Member has already stated disbelief in his assertions.
The situation was that Mr Nielsen was not given the opportunity of putting his case. This, of course, is one of the grounds seeking leave to appeal. In my view, that has been established, and leave to appeal is granted.
Having regard to the error of law outlined above in the leave application, the appeal is allowed. The decision of the Tribunal Member of 15 April 2013 is set aside, and the matter is returned to the Tribunal for reconsideration. The matter should be heard in the Tribunal by a different Member. The parties should be given the opportunity to call additional evidence.
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