Stato Pty Ltd v Jenkins - [2011] QCAT 391

CITATION:

Stato Pty Ltd and Anor v Jenkins [2011] QCAT 391

PARTIES:	Stato Pty Ltd t/a Gold Coast Motor Auctions Kenneth George Greaves (Applicants)
v
Bruce Jenkins (Respondent)

APPLICATION NUMBER:

REO006-11

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Susan Gardiner, Member

DELIVERED ON:

11 August 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application to re-open matter No. OCL148-10 is granted.

CATCHWORDS:

REOPENING – against award of claim against compensation fund under the Property Agents and Motor Dealers Act 2000

NATURAL JUSTICE – Where application heard in circumstances where because of administrative error in address of party supplied to Tribunal applicant denied natural justice in way in which application heard

Queensland Civil and Administrative Tribunal Act 2009, ss 136, 140

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers.

REASONS FOR DECISION

Bruce Jenkins bought a second-hand BMW motor vehicle on the Gold Coast. The purchase process involved a number of people, including the applicants in this matter, Stato Pty Ltd and Mr Greaves. Soon after the purchase, Mr Jenkins identified problems with the vehicle.
In March 2009, Mr Jenkins made a claim of $41,045.22 against the claim fund established under the Property Agents and Motor Dealers Act 2000 for misrepresentations about the vehicle, safety repairs made the vehicle roadworthy and associated costs. This fund is administered by the Department of Employment, Economic Development and Innovation.
The claim was made under section 470 of the PAMD Act. Mr Jenkins claimed to have suffered a financial lost as a result of his dealings with all of the parties involved in the purchase process who hold motor dealer’s licences under the PAMD Act.
The Department referred Mr Jenkins’ claim to QCAT on 10 September 2010 under the provisions of Chapter 14 of the PAMD Act. The Department provided to the Tribunal contact addresses for all parties.
An order that Mr Jenkins be paid the sum of $20,250.00 from the PAMDA fund and a finding of joint liability for the loss suffered by Mr Jenkins amongst all the respondents who hold motor dealer’s licences, was delivered by a QCAT member on 11 April 2011. Written reasons for the decision were also given.
Stato Pty Ltd and Mr Greaves now apply to reopen that decision under Division 7 of Chapter 2 of the Queensland Civil and Administrative Tribunal Act 2009.
An application to reopen is made under s 138 of the QCAT Act. The applicants must state the reopening ground on which the application is made[1]. Stato Pty Ltd and Mr Greaves rely only on the reopening ground that “the party did not appear at the hearing of the proceeding and had a reasonable excuse for not attending the hearing”[2].
[1] Queensland Civil and Administrative Tribunal Act 2009, s 138(2)(a).
[2] Queensland Civil and Administrative Tribunal Act 2009, s 137(a).
An examination of the file discloses the following summary of procedural events:
i)     The Department of Employment, Economic Development and Innovation filed Mr Jenkins’ application with QCAT on 10 September 2010. The covering letter with the claim disclosed the address for Stato Pty Ltd as 11 Fern Hill Drive, Willowvale;
ii)    The same covering letter with the claim disclosed the address for Mr Greaves as 111 Fern Hill Drive, Willowvale;
iii)   This typographical error on the face of the information supplied by the Department was not identified by the Tribunal registry. All correspondence and notices for all events in the life of this application, including the hearing notice were sent by the Tribunal registry to Stato Pty Ltd and Kenneth Greaves at 11 Fern Hill Drive, Willowvale;
iv)   This address was wrong. The correct address for Stato Pty Ltd and Mr Greaves was 111 Fern Hill Drive, Willowvale, the second address listed in the original documentation from the Department.
v)    One piece of correspondence was returned unclaimed to the registry from 11 Fern Hill Drive, Willowvale. This was the direction that set the matter down for hearing on 2 March 2010.
It is clear that on this basis alone, this Tribunal did not give Stato Pty Ltd and Mr Greaves the procedural fairness and natural justice to which they are entitled under section 28 of the QCAT Act.
Unfortunately there is more. At the time, Mr Greaves had a post office box on the Gold Coast. The address for this post office box was also supplied by the Department.
Mr Jenkins was directed to file an affidavit of evidence on a particular matter and his filed material shows he served this on Stato Pty Ltd at 11 Fern Hill Drive, Willowvale but on Mr Greaves by posting a copy of the affidavit to the post office box address. This appears to be the first document that has come to Mr Greaves’ attention on his return from a holiday on 28 February 2011 after the sale of the property at 111 Fern Hill Drive, Willowvale.
Mr Greaves saw his solicitor Mr Muir that day (28 February 2011). Mr Muir wrote to the Tribunal registry by email the next day (1 March 2011) clearly indicating that the only document they had was the affidavit and requesting copies of the original documentation.
On 3 March 2011 Mr Muir says a fax was sent to the registry again requesting documents and expressing concern that they may be in breach of, at that time, unknown directions. This letter does not appear on the registry file.
On 10 March 2011 a further letter was sent by Mr Muir to the registry enclosing an application to legally represent Stato Pty Ltd and Mr Greaves.
On 17 March 2011 Mr Muir rang the registry and spoke to an identified officer about the matter. After some internal inquiries, Mr Muir says the registry officer returned his call that day to say the matter had been dealt with by the Tribunal in a hearing on 2 March 2011.
Further correspondence was received by the registry on 24 March, and 4 April – after the hearing of the matter but before the handing down of a decision. The tenor of these letters was to seek to reopen the matter before the decision was handed down.
There is no recorded response by the registry to any of these emails, letters or telephone calls.
Again I am satisfied this Tribunal did not give Stato Pty Ltd and Mr Greaves the procedural fairness and natural justice to which they are entitled.
In deciding whether to reopen a proceeding I may only grant the application if I consider a reopening ground exists for the applicants. For the reasons discussed above, I am satisfied that Stato Pty Ltd and Mr Greaves have not been given natural justice and that a reopening ground exists for the applicants.
I am also satisfied that this ground can be effectively dealt with by reopening the proceeding under Division 7 of Chapter 2 of the QCAT Act.
The issues must be heard and decided by way of a fresh hearing on the merits and the Tribunal, hearing this matter afresh, may confirm or amend the Tribunal’s previous final decision or set aside the previous final decision and substitute a new decision[3].
[3] Queensland Civil and Administrative Tribunal Act 2009, s 140(4).
For the reasons discussed above, the application to reopen matter OCL148-10 is granted.