Rae v Volkswagen Group Australia Pty Ltd
[2013] QCAT 290
•23 May 2013
| CITATION: | Rae v Volkswagen Group Australia Pty Ltd [2013] QCAT 290 |
| PARTIES: | Dr Darryl Rae (Applicant) |
| v | |
| Volkswagen Group Australia Pty Ltd (Respondent) |
| APPLICATION NUMBER: | MCDO3105-10 |
| MATTER TYPE: | Other minor civil dispute matter |
| HEARING DATE: | 8 April 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | John Bertelsen, Adjudicator |
| DELIVERED ON: | 23 May 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Each party bear their own costs of the proceeding. |
| CATCHWORDS: | COSTS – costs in the context of dismissal – monetary jurisdiction – limitation of costs in minor civil disputes Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47, s 48, s 100, s 102 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412; cited |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | No appearance |
| RESPONDENT: | Volkswagen Group Australia Pty Ltd represented by Mr Liam Copley of counsel |
REASONS FOR DECISION
Application
By application filed 21 October 2010 the applicant Dr Rae sought payment of the sum of $25,000.00 from the respondent Volkswagen Group Australia Pty Ltd (VGA) asserting that a Volkswagen vehicle purchased by him as new was in fact a vehicle that had been the subject of significant repairs prior to delivery.
Background and evidence
The Volkswagen vehicle (the vehicle) was purchased on about 29 January 2008. Dr Rae asserted essentially that delivery as a new vehicle was a pretense; that the vehicle had been subject to significant repairs prior to delivery; that VGA failed to act appropriately to complaints about the vehicle; that repairs were of unacceptable quality; that there had been refusal to repair the vehicle under statutory warranty; that codes of practice in relation to motor vehicle repairs had not been adhered to and that the vehicle was operationally unsafe.
VGA responded stating that the Tribunal did not have the power to make the orders or grant the relief sought by Dr Rae; that Dr Rae was not entitled to the orders and remedies sought in his application; that the vehicle was subject to a new vehicle warranty; that VGA had fulfilled its obligations in terms of the New Vehicle Warranty; that the orders and remedies sought by Dr Rae were outside the New Vehicle Warranty; that the vehicle was never subject to any statutory warranty.
It is not intended to traverse the whole of the history of this application as such. Suffice to say that it has been a protracted proceeding over some 2 1/2 years from October 2010 to April 2013 along the way accruing numerous intermediate steps, orders and directions as follows:
nMediation December 2010.
nCompulsory conference February 2011.
nDirections December 2010, January 2011, February 2011, May 2011 (2) August 2011, September 2011, March 2012, July 2012.
nNon compliance application February 2011.
nApplication to dismiss April 2011.
nTribunal orders with detailed reasons 7 February 2011 and 18 November 2011.
nRespondent’s application to strike out February 2013.
nListed for hearing 12, 13 and 14 March 2012 and 8 and 9 April 2013.
On 20 March 2013 Dr Rae sought an adjournment of the hearing set for 8 and 9 April 2013. That application was refused by the Tribunal.
On Friday 5 April 2013 Dr Rae filed an application for leave to withdraw his 2010 initial application. No reason for withdrawal was given in the application. Rather the application was accompanied by an email generally critical of the Tribunal.
As the initial application was set for hearing on Monday 8 and Tuesday 9 April 2013 Dr Rae’s withdrawal application was effectively made the day before the hearing was finally due to commence.
Dr Rae did not appear at the hearing. The respondent VGA appeared by counsel, Mr Liam Copley who sought dismissal of the proceeding. That was granted.
Costs
Mr Copley sought the respondent’s costs on the standard basis, Magistrates Court Scale.
Section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides that, other than as provided under the Act or enabling Act, each party to a proceeding should bear the parties own costs of the proceeding.
Section 102(2) of the QCAT Act provides that the only costs the Tribunal may award … against a party to a proceeding for a minor civil dispute are the costs stated in the Rules as costs that may be awarded for minor civil disputes under this section.
Rule 83 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (‘QCAT Rules’) provides that for the purposes of s 102 of the QCAT Act the Tribunal may award costs against the party to a proceeding for a minor civil dispute other than a minor debt claim-
(a)Only if the party is a respondent against whom the Tribunal has made a final decision; and
(b)Only to order the party to pay to the applicant the amount of any prescribed fee paid by the applicant on filing the application for the proceeding.
That was not the case here. There is no power in the minor civil dispute jurisdiction to award costs as such.
Respondent’s application to strike out filed 5 February 2013
The application to strike out filed 5 February 2013 sought dismissal or striking out of this proceeding pursuant to s 48 (party causing disadvantage) of the QCAT Act; in the alternative that the applicant pay the respondents costs resulting from the applicant’s failure to comply with Tribunal orders; that the proceeding be otherwise stayed until costs paid.
This application was made at the 11th hour and at a time when the initial application had been set down for hearing and/or confirmed to be heard on 8 and 9 April 2013, those dates being suitable to both parties. The affidavit of Jayne Alice Qorraj sworn 1 February 2013 in support of that application refers, inter alia, to Tribunal orders made 9 March 2012 directing the applicant to provide to the respondent a particular CD containing voice recording by 29 June 2012. Apart from the protracted and laborious nature of this proceeding as referred to in the said affidavit there appeared to be no other outstanding issues inhibiting the hearing proceeding on 8 and 9 April 2013.
On 4 March 2013 VGA wrote to the Tribunal complaining that Dr Rae had “included 3 witnesses in his hearing plan that the respondent has not previously been made aware of namely:
(a)The principle engineer of Sherwood Auto Engineering (name not provided);
(b)Mr Stuart Davis principle safety engineer QLD Government; and
(c)Mr Terry Sullivan Senior Safety Engineer QLD Government.
The respondent has not had the opportunity to review the evidence of the witnesses …”
Dr Rae had indicated his intention to call the above three persons in his email to the Tribunal (copied to the respondent) of 24 August 2012. He did not however at any stage ever provide witness statements in accordance with the Tribunals orders of 18 November 2011 which provided, inter alia, for Dr Rae to file and serve “the statement from each witness to give evidence for the applicant at the hearing including any experts … by 16 January 2012.”
Dr Rae not having filed and served witness statements would have, in the absence of an extra ordinary explanation, been precluded from calling those witnesses at hearing in any event.
In Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 it was stated
Under the QCAT Act the question that will usually arise in each case in which costs are sought is whether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s 100.
Jurisdiction
Mr Copley for VGA submitted that Dr Rae’s originating application effectively sought a sum of money in excess of $25,000.00 in that on page 4 part C Dr Rae sought (under the hearing “I want the Tribunal to make the following orders”), inter alia, vehicle replacement or purchase price refund which he asserted was in excess of $25,000.00.
Even accepting such, part B on page 3 (under the hearing “what are you seeking”) Dr Rae nominates, inter alia, “payment of money to me - $25,000.00.” On an alternative “and/or” basis he also seeks refund, relief, return and rectification. Crucially however his total claim is recorded as $25,255.00 being $25,000.00 claimed and $255.00 filing fee. His “and/or” alternatives are not quantified but impliedly do not exceed $25,000.00.
While on the face of it the application might appear a little ambiguous Dr Rae’s alternatives are not otherwise quantified except to say that the payment sought and alternatives only ever totalled $25,000.00. In this context it cannot be categorically said that Dr Rae’s monetary claim exceeded $25,000.00. Nor was there any material to suggest that the issue of monetary jurisdiction was pursued with vigour previously.
Conclusions
The application to strike out filed 5 February 2013 was made pursuant to s 48 of the QCAT Act. Any order for costs made pursuant to that section is made under s 102 of the QCAT Act which in turns limits costs to those costs referred to in r 83 of the QCAT Rules as discussed above. In the minor civil dispute jurisdiction there is no basis for awarding costs as sought or otherwise.
There was nothing particularly complex about this proceeding such as to suggest that costs should be awarded. Rather it appears the costs application emanated primarily from the longevity of the proceeding. In the context of a minor civil dispute, in respect of which costs are more specifically excluded approppo other types of applications, there is no compelling reason proffered to award costs.
Whilst the proceeding may have been adventurous and, in the event, long winded and laborious, it cannot be said it was entirely unjustified in the context of s 47 QCAT Act (vexatious/lacking substance). Despite the protracted nature of the proceeding it was the case that the hearing would have proceeded on 8 April 2013 but for Dr Rae filing his withdrawal on 5 April 2013 and not appearing on 8 April 2013. That latter train of events does not give rise to an award of costs in the MCD jurisdiction.
Order
Each party bear their own costs of the proceeding.
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