Top Rider Australia Pty Ltd v Ariens
[2018] QCATA 73
•14 May 2018
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Top Rider Australia Pty Ltd v Ariens [2018] QCATA 73
PARTIES:
TOP RIDER AUSTRALIA PTY LTD
(applicant/appellant)v JEROME ARIENS
(respondent)
APPLICATION NO/S:
APL295-17
ORIGINATING APPLICATION NO/S:
MCDO 37/17
MATTER TYPE:
Appeals
DELIVERED ON:
14 May 2018
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Justice Carmody
ORDERS:
1. The application for leave to appeal and appeal is allowed.
2. The tribunal’s order is set aside.
CATCHWORDS:
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where the applicant provides competency based assessment certificates under the Queensland Government’s Q-Ride motorcycle licencing scheme – where the tribunal ordered the applicant refund fees paid by the respondent for competency based assessment – where the respondent claimed he completed half the test on the wrong class of motorcycle – where the respondent had in fact been assessed as incompetent on a high powered motorcycle – where the respondent’s evidence was accepted as unchallenged – where the applicant failed to appear at the hearing but had filed written submissions – where the tribunal erred in accepting the respondent’s mischaracterisation of the licencing scheme – where the tribunal’s decision is set aside
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 28, 57(1), 93(2), 95(4)
Clarke v Japan Machines (Australia) Pty Ltd [1994] 1 Qd R 404
International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
The applicant asks for leave to appeal a decision in a minor civil dispute on the ground that in breach of its obligation to decide the proceeding according to the substantial merits the tribunal did not adequately have, hear, consider or give proper weight to all relevant evidence prior to ordering it to refund a tuition payment to the respondent.
To obtain leave to appeal the applicant usually has the onus of demonstrating a material error (of fact, law or both) that requires correction on appeal to avoid a substantial injustice if it is allowed to stand.
The applicant is a registered Q-Ride provider under a scheme managed by the Department of Transport and Main Roads pursuant to the Transport Operations (Road Use Management) Act 1995 (Qld). It offers eligible learner riders, like the respondent, training and competency based assessment on a motorcycle relevant to the proposed class of licence.
On successful completion the applicant issues clients with a competency declaration to present to a state run licencing centre in support of their licence application.
The respondent was a learner motorbike rider intending to apply for a licence under the Q-Ride program.
He already had a provisional RE class licence but aims to upgrade to open or R class so he can ride bikes with a capacity larger than a learner approved motorcycle (LAM); that is, exceeding 450cc.
The context
The basic disagreement between the parties concerns whether the respondent got what he paid for.
The respondent’s case is summarised in Annexure A of the filed Form 1 (attached as Exhibit 1).
The service agreement is described as “testing to enable (him) to obtain an R class open motorcycle licence at a cost of $329”.
He asserts, in effect, that “the testing was invalid as all (open licencing) testing is required to be completed on a 900cc or other open licence approved motorcycle”.
His key complaint is that the applicant promised to provide a relevant bike for training and assessment purposes but despite being previously advised he was the only R class client booked for testing on 15 August 2016 he was forced to share the only compliant motorcycle (900cc) with another learner which meant that he completed half of the test manoeuvres on a lower powered (450cc) machine which impaired his performance when assessed.
The applicant’s response is stated in the email attachment and supported by the instructor’s notes (attached as Exhibit 2).
It claims that the services contract was for competency-based assessment on a motorcycle relevant to the class of licence he was applying for and a competency declaration to provide the licence issuing centre with. On its version the respondent lacked basic motorcycling skills and was considered unable to safely control an R class bike but, instead of just sending him home, allowed him to practice on an easier bike before being formally tested.
Tribunal proceedings
The hearing was scheduled for 24 August 2017.
The file shows that the applicant was given due notice of the hearing date and warned that if it did not appear the tribunal may still hear and decide the matter including making orders against it.
The applicant’s manager informed the registry via email on 25 July 2017 that he was unavailable on the hearing date but by way of response attached written submissions and supporting documents.
In these circumstances, the tribunal was called upon by s 13(1) of the QCAT Act to make orders it considered fair or equitable to the parties in order to resolve the dispute including an order dismissing the applicant for want of sufficient proof.
The tribunal hears and decides matters with as little formality and technicality as a proper consideration of the issues permits,[1] including in a party’s absence,[2] but is required to observe the rules of natural justice. It may inform itself of all the relevant facts in any way it considers appropriate[3] including allowing a party to give sworn or unsworn[4] evidence in a hearing (orally or in writing).[5]
[1]QCAT Act s 28(3)(d).
[2]QCAT Act s 57(1)(b), 93(2).
[3]QCAT Act s 28(3)(c), (e).
[4]QCAT Act s 95(4)(b).
[5]QCAT Act s 28(4), 95(4)(a).
The transcript records that after inviting the respondent to make any further submissions in relation to the matters raised by the applicant’s material[6] the tribunal accepted “the evidence as presented by (the respondent) as unchallenged”[7] because while the applicant had “addressed the issues” it did “…not explain why (the respondent) was required to undertake the test using the two separate bikes”.
[6]T1-6: 5-10.
[7]T1-6: 5-10.
The applicant, in effect, says that the tribunal was led into jurisdictional error by the respondent’s mischaracterisation of the terms of the services contract and not adequately considering the real issues. In support of its application for leave to appeal it filed additional material including apparently authentic and reliable assessment records.
In the ordinary, common law courts, the applicant’s evidence, which was plainly available at the original hearing would not be admissible on appeal unless well-known conditions including reasonable diligence and cogency are met.[8] However, the appeal tribunal is not bound by the same rules of practice or policy considerations.[9]
[8]Clarke v Japan Machines (Australia) Pty Ltd [1994] 1 Qd R 404.
[9]QCAT Act s 28(3)(b). See also the discussion in CDJ v VAJ (No 1) (1998) 197 CLR 172, 199-202.
Its overriding duty “in all proceedings” (including relating to an application for leave to appeal) is to “…act fairly and according to the substantial merits of the case”.[10] As already noted, this includes informing itself in any way considered appropriate so that all relevant material is disclosed to enable the proceeding to be decided with all the relevant facts.[11]
[10]QCAT Act s 28(2).
[11]QCAT Act s 28(3)(c), (e).
On a proper analysis the new evidence proves that the applicant agreed to test the respondent’s competency to ride a motorcycle for an open licence he was applying for and to issue him with a declaration for a drivers licence issuing centre to refer to when considering his application to be issued with one.
It also compellingly demonstrates that while the respondent was assessed as competent in preparing the motorbike for operation (unit 1) he was not yet competent (on any size bike) in low speed manoeuvres (unit 2), high speed control (unit 3) or roadcraft (unit 4) and rebuts his claim that switching between the two motorcycles disadvantaged him by impairing his performance and robbed him of an open licence.
It cannot be reasonably accepted that completing some of the test on a “learner” bike was a breach of contract where the only services are competency-based testing and assessment in a bipartite licencing regime.
It would be wrong to ignore the documentary evidence of these decisive facts even though it was available and really should have been presented at the hearing to avoid multiple resource-intensive proceedings to resolve a minor civil dispute. There is no undue prejudice to the respondent in admitting the evidence, even at such a late stage, and not doing so would perpetuate a serious miscarriage of justice.
The tribunal failed to exercise jurisdiction conferred on it by s 11 QCAT Act to “hear and determine” a minor civil dispute and make “fair and equitable” orders to resolve it as required by s 13 QCAT Act because it was misled and did not decide the case on its merits.
The respondent should not have asked a busy tribunal to make orders in the absence of the opposing interest on deficient material.[12] A win at all costs approach is to be discouraged because it is likely to multiply costs, sap limited tribunal resources and prolong, rather than settle, proceedings.
[12]International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319.
Even the original filed material put the true nature of the services contract squarely in issue and raised doubts about the veracity of the respondent’s “uncontradicted” evidence.
Moreover, there was no rational support for the respondent’s central allegation that if he had practiced on the more powerful bike for longer before being assessed he would have attained a standard of proficiency automatically entitling him to an R class licence.
Notably, the evidence the tribunal accepted and acted on as uncontradicted did not include and a Q-Ride Competency Declaration to use to apply for an R class (or open) licence.
The appeal is allowed and the order set aside.
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