Vaccaneo v Gollan - [2014] QCATA 150

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Vaccaneo v Gollan

Details

AGLC: Vaccaneo v Gollan [2014] QCATA 150
Case: [2014] QCATA 150
Decision Date: 24 June 2014

CaseChat Overview and Summary

The case of Vaccaneo v Gollan involved a dispute between Mary Vaccaneo and William Campbell Gollan, which was adjudicated by the Supreme Court of Victoria. The dispute originated from an earlier order made by a tribunal which required Gollan to repair a car. Neither party complied with the tribunal's order, leading to subsequent orders directing the application to reopen the case. Despite these orders, Gollan did not comply with the directives prior to the hearing of the application to reopen, resulting in the dismissal of the application. Vaccaneo sought leave to appeal this decision, arguing that the dismissal was unjust.

The legal issues before the court were whether the tribunal's decision to dismiss the application to reopen was unreasonable and whether there were grounds for granting leave to appeal. The court had to consider the principles of administrative law, particularly the concept of natural justice, and whether the tribunal's actions were in accordance with the law. The focus was on whether the tribunal correctly exercised its discretion and if there was any procedural unfairness in the dismissal of the application.

The court found that the tribunal's decision to dismiss the application to reopen was unreasonable as it failed to consider the non-compliance of Gollan with the orders prior to the hearing. The court held that the tribunal did not adequately address the procedural fairness and failed to give proper consideration to the matter. Consequently, the court granted leave to appeal and allowed the appeal, setting aside the decision of 4 February 2014. Gollan was ordered to pay Vaccaneo the sum of $3,453.55, which included the principal amount of $3,355.55 and a filing fee of $98, by 4:00pm on 16 July 2014.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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