Vaccaneo v Gollan
[2014] QCATA 150
•24 June 2014
| CITATION: | Vaccaneo v Gollan [2014] QCATA 150 |
| PARTIES: | Mary Vaccaneo (Applicant/Appellant) |
| v | |
| William Campbell Gollan (Respondent) |
| APPLICATION NUMBER: | APL132 -14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 24 June 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 4 February 2014 is set aside. 4. William Campbell Gollan shall pay Mary Vaccaneo $3,453.55 ($3,355.55 plus $98 filing fee, by 4:00pm on 16 July 2014. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE - TRIBUNAL POWERS - where order to repair car – where parties did not comply with order – where orders made directing application to reopen – where non-compliance with orders prior to hearing of application to reopen – where application to reopen dismissed – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 3(b), 28(3)(d), 133, 134 Pickering v McArthur [2005] QCA 294 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
This dispute has been before the tribunal since 2012. It has been the subject of an application to reopen, one appeal and an application for renewal and an appeal from that decision.
To repeat the essential facts giving rise to the dispute[1]: Ms Vaccaneo bought a 1997 Kia Sportage from Mr Gollan for $4,900. When she picked the car from Mr Gollan, it had a safety certificate and 254,789 km on the clock. Only a couple of days later, and having driven a relatively short distance, Ms Vaccaneo discovered that the engine had “cooked” and needed replacement.
[1]Gollan v Vaccaneo [2013] QCATA 228 at [1].
On 11 December 2012, the tribunal ordered that Ms Vaccaneo deliver the car back to Mr Gollan and that Mr Gollan have the engine fully repaired by 28 February 2013. On 23 April 2013, the tribunal ordered that Ms Vaccaneo deliver her car to a third party on 26 April 2013 and the third party do the necessary work by 31 May 2013.
Mr Gollan appealed that decision. On 5 August 2013, I refused his application for leave to appeal.
It appears that Ms Vaccaneo tried to enforce the tribunal’s decision of 26 April 2013 through the Magistrates Court because there is a note on the file:
“...paperwork returned to QCAT from Civil Magistrates Court because order needs to involve amounts of money to register in the Magistrates Court. Ms Vaccaneo advises matter still not finalised (over phone). Should matter be relisted?”
The tribunal re-listed the dispute and on 17 September 2013 made these orders:
1. The applicant file A Renewal Application s. 133 QCAT Act, together with a sufficient affidavit and annex mechanical report, demonstrating non-compliance, if any, by the Respondent with the order of the Tribunal, within 21 days.
2. Applicant to serve that Application on the Respondent and allow 14 days for the Respondent to attend to any mechanical problem.
3. The Applicant may then request the Tribunal registry to list the matter for a date for a hearing if the original order remains not complied with and request eth Tribunal to substitute a financial order.
Ms Vaccaneo did file an application for reopening. She also filed an affidavit annexing a vehicle inspection report and a copy of an invoice. She did not comply with the second direction because she did not give a copy to Mr Gollan and she did not give him an opportunity to repair the car.
The dispute came before the tribunal again on 4 February 2014. An Adjudicator dismissed Ms Vaccaneo’s claim.
Ms Vaccaneo wants to appeal the learned Adjudicator’s decision. She says she relied on her lawyer to serve Mr Gollan. She says her lawyer is now deceased and, therefore, he cannot provide any further information. Her current lawyers submit that the learned Adjudicator’s order was an interim order, not a final order, and therefore not within the contemplation of s 133 of the QCAT Act. They submit that there was been substantial compliance with the directions of 29 April and 17 September 2013 and, therefore, a proper exercise of the learned Adjudicator’s discretion should have been to allow a further opportunity for Ms Vaccaneo to comply with the directions of 17 September 2013.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The principles the appeals tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as His Honour then was) in Pickering v McArthur[2]:
There are numerous authorities, in varying language but with unvarying emphasis, that leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.
[2][2005] QCA 294 at [3].
The submission that the tribunal has no power to make interim orders on an application for renewal is correct. Section 134 of the QCAT states that the tribunal may make the same final decision or any other appropriate final decision that it could have made when the proceeding was originally decided.
But the orders of 17 September 2013 were not made in response to an application for renewal. Those orders were made in response to a referral from the Magistrates Court. The orders are an unfortunate example of the tribunal attempting to meet its obligation to deal with matters informally[3]. However, the tribunal’s ability to act informally is not without limit. It must exercise those obligations as the requirements of the Act, and a proper consideration of the matters before the tribunal, permit[4]. Regrettably, the tribunal has a tendency to focus on the informality and lack of technicality without regard to the requirements of the Act. The tribunal had no power to make the orders of 17 September 2013 because there was no application for renewal, or any other application, before it.
[3]QCAT Act s 3(b).
[4]Ibid s 28(3)(d).
If the tribunal could not make the orders of 17 September 2013, then the learned Adjudicator’s consideration of the renewal application could not include a consideration of whether Ms Vaccaneo complied with those orders. Leave to appeal should be granted.
Ms Vaccaneo applied for a reopening of the proceeding because, she says, Mr Gollan refused to fix the car. It is clear from the material filed that Ms Vaccaneo and Mr Gollan were never going to agree a process by which the car would be fixed. The third party involved in the order of 23 April 2013 – Mr Futia - swore an affidavit on 22 April 2013 stating that Mr Gollan had arranged for the repairs, Mr Futia bought the necessary engine but Ms Vaccaneo never delivered the car.
In light of that information, it is tempting to simply vacate all orders and let the loss lies where it falls. Section 134(2)(b), however, requires the tribunal to look back at the original decision and reformulate orders that are capable of enforcement. The tribunal is not entitled to revisit the issue of liability. Similarly, the tribunal is not entitled to consider fresh evidence.
The tribunal has consistently decided that Mr Gollan is liable to Ms Vaccaneo. The only issue has been how to compensate Ms Vaccaneo for her loss. Orders to rectify have been unsuccessful. The only viable order is for the payment of money. The original decision maker had a repair estimate from Nash Street Mechanical for $3,355.55. The appropriate order on renewal should have been that Mr Gollan pay Ms Vaccaneo that sum plus her filing fees.
The appeal is allowed. The decision of 4 February 2014 is set aside. I order that Mr Gollan pay Ms Vaccaneo $3,453.55 ($3,355.55 plus $98 filing fee) by 4:00pm on 16 July 2014.
0