Pacific Family Medical Practice Pty Ltd v Chesney
[2014] QCATA 78
•14 April 2014
| CITATION: | Pacific Family Medical Practice Pty Ltd v Chesney [2014] QCATA 78 |
| PARTIES: | Pacific Family Medical Practice Pty Ltd (Applicant/Appellant) |
| v | |
| Sandra Chesney (Respondent) |
| APPLICATION NUMBER: | APL017 -14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 14 April 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – whether grounds for leave to appeal PROCEDURE – EVIDENCE – where sworn statement provided to the tribunal – where respondent did not ask for the witness to be available for cross-examination – where tribunal accepted evidence – whether hearing was fair – whether failure to provide natural justice Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 28, 94, 95, 142 Pickering v McArthur [2005] QCA 294 |
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 (Qld) (QCAT Act).
REASONS FOR DECISION
Ms Chesney provided mental health assessments and mental health care through Pacific Family Medical Practice Pty Ltd from early 2011. Pacific Family Medical Practice Pty Ltd provided the room and administration support and Ms Chesney received the Medicare payment directly from Medicare. Late in 2011, that arrangement broke down. In February 2012, Ms Chesney filed an application for payment of money she did not receive under the arrangement. The tribunal ordered the Practice pay Ms Chesney $9,215.
The Practice wants to appeal that decision. It says that the learned Member erred in relying on the evidence of Ms McGaw when she was not available for cross-examination.
The Practice asserts that, because this is an appeal on a question of law, leave is not necessary. However, it is an appeal from a decision in the minor civil disputes jurisdiction, so leave is necessary[1]. The principles the appeals tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as His Honour then was) in Pickering v McArthur[2]:
There are numerous authorities, in varying language but with unvarying emphasis, that leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.
[1]QCAT Act s 142(3)(a)(i).
[2][2005] QCA 294 at [3].
The Practice acknowledged that the tribunal is not bound by the rules of evidence[3]. The Practice submits that this informality must be tested against the tribunal’s obligation to observe the rules of natural justice[4]. I agree with that submission. Even in balancing natural justice against informality, I have determined that the application for leave to appeal must fail.
[3]QCAT Act s 28(3)(b).
[4]Ibid s 28(3)(a).
The tribunal may refuse to allow cross-examination of witnesses if there is sufficient evidence about the matter before the tribunal[5] or the hearing is an expedited hearing under s 94 of the QCAT Act[6]. The tribunal may conduct an expedited hearing in the minor civil disputes jurisdiction[7]. This hearing was conducted according to the process for expedited hearings[8]. Therefore, even if the Practice had asked for Ms McGaw to be available for cross-examination, there was no guarantee that the tribunal would have allowed it.
[5]Ibid s 95(2)(b)(i).
[6]Ibid s 95(2)(c).
[7]Ibid s 94(1)(a).
[8]QCAT Rules s 82.
The Practice did not request that Ms McGaw be available for cross examination. There was no request even though the Practice had a copy of Ms McGaw’s statement for almost two years. There was no request even though the Practice was assisted by a legal practitioner, who sought to appear at the hearing as a McKenzie Friend. The appeals tribunal has previously determined[9] that a failure to allow cross-examination in the absence of a request is not a failure to provide natural justice. If the Practice wanted to cross examine Ms McGaw, it should have asked.
[9] Harris v Dianne Grace Law [2013] QCATA 148.
The learned Member did not rely solely on Ms McGaw’s evidence. He heard from Ms Chesney. He heard from Ms Wells, who was cross-examined. The evidence can support the learned Member’s findings and I can find no compelling reason to come to a different view.
There is no reasonably arguable case that the learned Member was in error. Leave to appeal should be refused.
0
2
0