Ure v Pirana (Qld) Pty Ltd
[2013] QCATA 216
•25 July 2013
| CITATION: | Ure v Pirana (QLD) Pty Ltd [2013] QCATA 216 |
| PARTIES: | Lynn Ure (Applicant/Appellant) |
| V | |
| Pirana (QLD) Pty Ltd Steven Ferguson (Respondents) |
| APPLICATION NUMBER: | APL190 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe OAM, Senior Member |
| DELIVERED ON: | 25 July 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 4 April 2013 is set aside. |
| CATCHWORDS: | MINOR CIVIL DISPUTE – where traffic accident – where application for respondent to be represented by insurer’s claims officer – where applicant’s views not sought – whether representation by claims officer in the interests of justice Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3(b) Dearman v Dearman (1908) 7 CLR 549 Chambers v Jobling (1986) 7 NSWLR 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 |
APPEARANCES and REPRESENTATION (if any):
The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
A simple “crash and bash” dispute has not reached the stage of mediation because of dispute about representation. Ms Ure wants to appeal the tribunal’s decision to grant leave for the insurer’s representative to appear on behalf of Pirana (QLD) Pty Ltd. One of Ms Ure’s complaints is that the decision does not meet the tribunal’s objectives to deal with the matter in a way that is accessible, fair, just, economical, informal and quick[1]. The mediation listed for 8 May 2013 was adjourned pending the outcome of this appeal. One hopes that the irony of her application is not lost on Ms Ure.
[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3(b).
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. 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 caused by some error?[4] Is there a question of general importance upon which further argument, and a decision of the appeals 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 2.
[4] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[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 made the decision about representation without giving Ms Ure the opportunity to make submissions. Parties should be given a proper opportunity to put submissions before the tribunal[6]. The failure to do so is a breach of procedural fairness, which is an error of law. For this reason, leave to appeal should be granted.
[6] Lyons v Dreamstarter Pty Ltd [2011] QCATA 142 at [15].
Should Pirana have leave to be represented by its insurer? Pirana submits that the matter is complicated by a number of issues. Firstly, it says that, although Mr Ferguson was driving, he is not the owner of Pirana’s truck and he is not an employee. Mr Ferguson will be available to give evidence and “represent their interest which may be affected by the proceeding”. I take that submission to mean that the request for representation relates only to Pirana. If Pirana’s application was not so limited, leave for Mr Ferguson to be represented should be refused. As Pirana itself pointed out, he will be at the hearing and he will be able to look after his own interests.
Pirana also submits that it was not a party to the accident and cannot give evidence about it or any discussions that followed. It says that its interests will not be affected by the tribunal’s decision because the insurer will bear any financial consequence. It says that allowing the insurer’s representative to appear at the hearing is analogous to the company’s certified employee appearing at the hearing.
Pirana submits that the insurer’s representative, Mr Palelei, has extensive experience appearing before tribunals and dealing with motor accident claims. That is the problem. The main purpose of the tribunal is for parties represent themselves unless it is the interests of justice that they be represented[7]. Pirana’s submissions show that it is convenient that it be represented by its insurer’s agent, but it has not shown that representation is in the interests of justice. The claims officer is not analogous to a certified employee; he is analogous to a legal representative, who has expertise and experience in these matters. It is not in the interests of justice for Ms Ure to conduct her case against an experienced, professional claims officer who is not an officer of the company. The appeal should be allowed and the decision of 4 April set aside.
[7] QCAT Act s 43(1).
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