Ravell v A1 Removals and Storage
[2012] QCATA 78
•15 May 2012
| CITATION: | Ravell v A1 Removals and Storage [2012] QCATA 78 |
| PARTIES: | Malcolm David Ravell (Applicant/Appellant) |
| v | |
| A1 Removals and Storage (Respondent) |
| MATTER NUMBER: | APL442-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member Susan Gardiner, Member |
| DELIVERED ON: | 15 May 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where compensation is sought for the loss of stored goods – where the adjudicator was not satisfied that the application fell within the QCAT minor civil jurisdiction – where the adjudicator made a “striking out” order Queensland Civil and Administrative Tribunal Act 2009, ss 13, 142, Schedule 3 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 |
REASONS FOR DECISION
Senior Member Richard Oliver
I have had the benefit of reading the reasons of Ms Gardiner in draft. I agree with her reasons and her conclusions, and the order she proposes.
Member Susan Gardiner
Mr Ravell sought compensation for the disposal of goods he stored at the premises of A1 Removals and Storage. He alleged the goods were sold or disposed of without his authority. He filed his application in QCAT’s minor civil dispute jurisdiction and it was heard by the learned adjudicator at Caboolture on 6 September 2011. A1 Removals and Storage did not attend the hearing.
Mr Ravell’s evidence to the learned adjudicator at the hearing appears from the transcript of the proceedings to have been very confused and imprecise, often contradicting himself at various points in his narrative.
The learned adjudicator sought on a number of occasions to identify what was stored and what Mr Ravell said was missing by reference to lists or documents but was unable to identify the items on the evidence before him. Mr Ravell’s own testimony also showed that one of his sons had been given some authority to deal with Mr Ravell’s property himself and that at times, this son also acted as agent for Mr Ravell in dealings with A1 Removals and Storage, although the extent of this agency is unclear on Mr Ravell’s evidence.
The learned adjudicator was satisfied at the hearing that Mr Ravell’s son was an important party to the claims of Mr Ravell against A1 Removals and Storage. In fact, there may be a claim for compensation by Mr Ravell against his son concerning the alleged disposals.
Under the QCAT Act, an appeal in the minor civil dispute jurisdiction can only be brought with the Tribunal’s leave or permission.[1] The question whether or not leave should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?[2] Is there a reasonable prospect that the applicant will obtain substantive relief?[3] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[4] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[5]
[1] Section 142 Queensland Civil and Administrative Tribunal Act 2009.
[2] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[3] Cachia v Grech [2009] NSWCA 232 at [13].
[4] QUYD Pty Ltd v Marvass Pty Ltd (supra).
[5]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
The learned adjudicator ordered that the application be “struck out” commenting to Mr Ravell at the time of making the order that the form of order did not restrict Mr Ravell from taking alternative action if he saw fit.
Mr Ravell’s appeal objects to the order made by the learned adjudicator saying this form of order is not provided in the legislation; the order was biased showed no procedural fairness and was influenced by a third party not a party to the proceedings.
Mr Ravell’s objection to the learned adjudicator’s order is misconceived in that this form of order is open to be made under s 47 of the Queensland Civil and Administrative Tribunal Act2009. This section gives this Tribunal power on its own initiative, to dismiss or strike out a proceeding if the proceeding is misconceived, or lacking in substance, or “otherwise, an abuse of process”.
[10] QCAT’s minor civil jurisdiction is contained in chapter 2 of the QCAT Act, in particular in section 13 and in Schedule 3 to the QCAT Act. The learned adjudicator was not satisfied that QCAT had jurisdiction to determine Mr Ravell’s matter in the minor civil jurisdiction. The adjudicator commented
“I can’t substantiate any degree of liability on the part of the Respondent. What is further problematic is that the matter is not just a consumer trading case … but it involved a third party…and his dealings with the subject property.”
[11] The learned adjudicator, having listened to Mr Ravell, could have simply dismissed the application for want of either lack of jurisdiction or lack of Mr Ravell proving his case. As stated above, Mr Ravell’s evidence appears very confused, imprecise and contradictory. It also appears to have raised in the mind of the learned adjudicator the possibility of an action against a third party taking the matter out of QCAT’s minor civil jurisdiction.
[12] By striking out the application and not finally determining it, the learned adjudicator was allowing Mr Ravell to consider his position and to potentially commence further proceedings.
[13] There is no demonstrated or discernable error in the learned adjudicator’s decision. There is no question of importance about which a further argument and a decision of the Appeal Tribunal would be of public advantage. Leave to appeal should be refused.
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