Siddhivinayak Medical Services Pty Ltd v Gordon Securities Pty Ltd
[2011] QCATA 18
•8 February 2011
| CITATION: | Siddhivinayak Medical Services Pty Ltd v Gordon Securities Pty Ltd [2011] QCATA 18 | |
| PARTIES: | Siddhivinayak Medical Services Pty Ltd (Applicant/Appellant) | |
| v | ||
| Gordon Securities Pty Ltd as trustee for Labrador Park Medical Centre Unit Trust (Respondent) | ||
| APPLICATION NUMBER: | APL285-10 | |
| MATTER TYPE: | Appeals | |
| HEARING DATE: | On the papers | |
| HEARD AT: | Brisbane | |
| DECISION OF: | Justice Alan Wilson, President | |
| DELIVERED ON: | 8 February 2011 | |
| DELIVERED AT: | Brisbane | |
| ORDERS MADE: | Application for leave to appeal refused. | |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – OUTSTANDING PAYMENT FOR WORK – INFORMAL EMPLOYMENT CONTRACT IN A MEDICAL PRACTICE – where Adjudicator found that a doctor’s abrupt departure from the medical practice offset outstanding wages owed – whether Adjudicator considered the substantial merits of the case – whether the Adjudicator incorrectly applied the law – whether the Adjudicator was biased Queensland Civil and Administrative Tribunal Act 2009, ss 28, 32, 142(3)(a) Builders’ Registration Board of Queensland v Rauber (1983) 57 ALJR 376, 384, cited Cachia v Grech [2009] NSWCA 232, cited Fox v Percy (2003) 197 ALR 201, cited Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, applied Renton v Magistrate Baldwin [2009] QSC 103, [21], cited Slinko v Guardianship and Administration Tribunal [2006] 2 Qd R 279, cited | |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Dr Lal is a medical doctor who was in the business of contracting his medical services out to medical practices via a company, Siddhivinayak Medical Services Pty Ltd. Dr Lal had an informal, verbal agreement with the respondent to do work in its medical practice.[1] Eventually, Dr Lal left the practice and claimed that he had not been paid for two weeks’ work, which amounted to approximately $6,000.00.
[1]Although the proceedings were brought by Dr Lal ‘trading as’ the company Siddhivinayak Medical Services Pty Ltd, it is clear that the company was the correct claimant and is the correct applicant here; likewise, with the respondent.
Dr Lal brought a minor civil dispute application in QCAT on 28 January 2010 seeking an order that Mr Hobbes pay the outstanding wages. The matter was heard on 21 September 2010. The learned Adjudicator who heard the matter determined that, while Dr Lal’s company had a legal entitlement to be paid the outstanding wages, it was also evident that he had left the practice in such an abrupt manner as to cause it substantial loss and that, in those circumstances, his claim should be disallowed.
Dr Lal now seeks leave to appeal that decision. Leave is necessary: QCAT Act, s 142 (3)(a)(i).
The question whether or not leave to appeal 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]
[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.
Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and reasonable prospect of the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?
In his application, Dr Lal lists three grounds for appeal: first, he claims that the Adjudicator failed to allow him sufficient time to present evidence, and failed to properly consider the evidence available and, hence, made a finding which was incorrect based on the available evidence and which failed to consider or reflect the merits of the case.
Secondly, he alleges that the Adjudicator incorrectly applied the law by taking into consideration the offset which was caused by Dr Lal’s abrupt departure from the clinic, when the respondent had not made any counterclaim.
Thirdly, he makes the very serious allegation that the Adjudicator was biased towards the respondent – and, by inference, against him.
As to the first ground, the transcript of the proceedings unequivocally shows that the learned Adjudicator allowed both parties ample opportunity to present evidence, questioned them both about the evidence that they had presented, and allowed both party’s representatives (Dr Lal, and a Mr Hobbes) to respond to each other’s evidence.
In particular, the transcript also makes it apparent that during the hearing the circumstances relating to Dr Lal’s resignation and departure were discussed by both parties and that Dr Lal was given the opportunity to give evidence and make submissions about those matters. The assertion that the evidence was deficient because of some lack of fairness on the Adjudicator’s part, or was not properly considered, is not supported by the transcript and must be rejected.
With regard to the second ground for appeal, Dr Lal submits that the learned Adjudicator made an error of law in taking into account the ‘offset’ which was allegedly caused by Dr Lal’s sudden departure from the clinic, because the respondent had not made any counterclaim.
In his reasons the learned Adjudicator relied, in dismissing the claim in the face of this alleged loss of the respondent’s, upon s 13 of the QCAT Act which provides that in determining minor civil disputes the tribunal must ‘make orders that it considers fair and equitable to the parties… in order to resolve the dispute but may, if the tribunal considers it appropriate, make an order dismissing the application’ (my italics).
These phrases permit the course the learned Adjudicator adopted here. As his reasons make plain, he accepted the respondent’s evidence that it had suffered loss because of Dr Lal’s departure, and that the loss equalled or exceeded what Dr Lal’s company might be owed – both findings which, it cannot be said, were not reasonably open on the evidence. Once those findings were made, s 13(1) opened up the possibility that the learned Adjudicator might exercise the discretion to dismiss the claim.[6]
[6] See, also, s 28 of the QCAT Act.
Because, as the transcript shows, the respondent’s ‘offset’ was explored during the hearing, it cannot be said that its acceptance by the Adjudicator involved any offence against the principles of natural justice – which, under s 28 of the QCAT Act, are to be observed in the context of provisions which emphasise informality, and expedition.[7]
[7] And, see ss 3 and 4 of the QCAT Act.
With regard to the third ground for appeal, the test for bias in statutory tribunals is whether a reasonable and informed bystander would suspect that the tribunal was biased.[8] For obvious reasons, the subjective impressions of a party are not sufficient proof of bias.[9]
[8]Builders’ Registration Board of Queensland v Rauber (1983) 57 ALJR 376, 384.
[9]Slinko v Guardianship and Administration Tribunal [2006] 2 Qd R 279; Renton v Magistrate Baldwin [2009] QSC 103, [21].
Dr Lal alleges that the Adjudicator was biased because he was not given the opportunity to present certain evidence about his departure, and because the respondent was encouraged to give details of its ‘offset’. Neither of these two events would amount to bias; they may suggest some lack of procedural fairness but, again, the transcript makes it clear that both parties were afforded every opportunity to present their cases. The first allegation is, then, contradicted by the transcript. The second involves no more than the learned Adjudicator performing his proper function and duties, in a way that complied with the legislation.
Nothing in the transcript supports an inference that a reasonable and informed bystander would conclude – or, even, suspect – that the learned Adjudicator was biased. He allowed both parties ample time to give evidence and to respond to each other’s case. On any view, the hearing was a fair one and the allegations of bias are unfounded, and unfair.
Clearly, the learned Adjudicator made a considered evaluation of the evidence available at first instance and reached a decision that has not been shown not to be fair and just, according to the substantial merits of the case.
There appears to be no material error of fact or law in the conduct of the matter, or the decision.
In the circumstances, the applicant is unable to point to any reasonably arguable case of error in the decision of the learned Adjudicator, or any question of general importance upon which a decision of the Appeal Tribunal is necessary. For these reasons, the application for leave to appeal is refused.
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