Wilson v DCS Auto Repairers

[2011] QCATA 258

CITATION: Wilson v DCS Auto Repairers [2011] QCATA 258

PARTIES:	Melissa Ann Wilson (Applicant/Appellant)
v
DCS Auto Repairers (Respondent)

APPLICATION NUMBER:   APL198-11

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON: 16 September 2011

DELIVERED AT: Brisbane

ORDERS MADE:     

1.    Grant leave to appeal;

2.    Allow the appeal; and

3.    Direct that the matter be returned to the Tribunal, to be heard again.

CATCHWORDS: 

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – FAILURE TO CONSIDER RELEVANT FACTORS – where Ms Wilson sought compensation for damages to a motor vehicle – where an Acting Magistrate dismissed Ms Wilson’s claim without giving Ms Wilson procedural fairness – where Ms Wilson seeks leave to appeal that decision – whether evidence and relevant factors properly considered at first instance – whether leave to appeal should be granted

Queensland Civil and Administrative Tribunal Act2009, ss 142, 146

Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 3 ALN No 42, cited
Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33, cited

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. Ms Wilson left her motor vehicle for repairs with DCS Auto Repairers in Bundaberg.  While the vehicle was in their yard it was stolen by persons unknown, and damaged.  Ms Wilson seeks damages from DCS, including the cost of a replacement motor vehicle.

2. Ms Wilson’s application came before an Acting Magistrate, sitting as a QCAT Member, in Bundaberg on 5 May 2011.  He struck out Ms Wilson’s claim, apparently on the basis that she had insufficient evidence to support her claim that the vehicle was uneconomical to repair, and that her damages should reflect the replacement cost. 

3. Ms Wilson seeks leave to appeal that decision. Leave is necessary: QCAT Act, s 142 (3)(a)(i).

1. Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief.  Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?

1. Ms Wilson’s application for leave to appeal is based, in essence, on a lack of procedural fairness.  Her submissions are, unsurprisingly, not couched in legal terms but her complaint is that she did not get a fair hearing because the Tribunal Member did not comprehend the issues or give proper weight to the evidence in the case, and then denied her an adjournment to obtain further evidence and, instead, struck out her application.

2. Unfortunately, these claims are supported by the transcript of the proceedings.  The uncontested evidence was that Ms Wilson’s vehicle was being stored in DSC’s yard, awaiting parts for which she had paid.  It had been left in a locked area, but with the keys in it, and it was driven through a fence by the person(s) who took it.

3. Ms Wilson claimed $11,500 for damages by way of the replacement cost of the vehicle.  She had written evidence, but not in affidavit form, from other repairers that the vehicle could not economically be repaired.  She gave evidence, on oath, about the replacement cost based upon information she had gleaned from a website.  DCS’ representative, Mr Smith, had an affidavit from a car salesman, estimating the value of the vehicle at $5,000, or less.

4. The Acting Magistrate refused to receive the affidavit Mr Smith offered.  Of Ms Wilson’s evidence about value, he said ‘You’re not getting that today because there’s no evidence’.

5. The transcript shows the learned Acting Magistrate also struggled with the legal basis for the claim, with reference to the definition of ‘Minor Civil Dispute’ in the QCAT Act. After the remark just mentioned, he appeared to conclude that Ms Wilson could only recover the figure she claimed if the damage was the product of a motor vehicle accident. Later, he touched upon questions of negligence – but appeared to discuss them in the context of any negligent driving by the person(s) who stole the vehicle.

[10]  He mentioned bailment and the duties of persons keeping vehicles but, again, seemed to suggest the claim could not succeed because it did not arise in a way reflected in one of the definitions of Minor Civil Dispute in the Act – ‘… a claim… for damage to property caused by, or arising out of the use of, a motor vehicle’.

[11]  If Ms Wilson had a claim, it must have rested in another limb of the definition: claims between traders and consumers, arising out of the contracts between them.  At no time does it appear that consideration was given to any implied terms, for example that the repairer would keep the vehicle secure, or whether a term like that was breached.

[12]  Then, the transcript shows, a surprising thing happened at the end of the hearing.  The learned Acting Magistrate said ‘See, the best I can do is offer an adjournment to go away and bring proper evidence to say that the car is an uneconomical repair…’  but, when Ms Wilson asked: ‘What do I get because…’ the Acting Magistrate said: ‘Anyhow, I’m not going to do it now. It’s over, it’s dismissed… The claim is struck out.’

[13]  While QCAT’s Minor Civil Disputes jurisdiction is a busy and demanding one, it is an inescapable conclusion from the transcript that the Acting Magistrate did not take the necessary time and trouble to consider the nature of the claim, or give it proper consideration. 

[14] Secondly, it is incomprehensible that, having offered an adjournment to Ms Wilson to obtain further evidence, a reasonable enquiry from her about what was required resulted in the immediate striking out of her claim. The QCAT Act places a positive duty upon the Tribunal’s members and adjudicators to ensure parties understand its practices and procedures: s 29. Ms Wilson’s enquiry was, in light of her oral evidence on oath about value having been rejected, not unreasonable or surprising.

[15]  This Tribunal has a statutory obligation to proceed expeditiously and with as little formality as possible, but that flexibility of procedure does not go so far as to justify procedures which ignore principles of natural justice.[1] 

[1]Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33 at 41 per Brennan J.

[16]  It is an error of law to fail to consider relevant factors in arriving at a decision.[2]  It is also an error not to observe principles of procedural fairness in the determination of the matter. 

[2]        Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 3 ALN No 42.

[17]  Here, the Acting Magistrate failed to properly consider the actual issues in the matter, and wrongly struck it out. 

[18]  Ms Wilson may have an arguable case.  It may or may not succeed, but she is entitled to a hearing in this Tribunal in which her case is properly considered.

[19]  The error of law means Ms Wilson’s for leave to appeal should succeed.  In the appeal, the fact that her claim was improperly struck out means she should have the opportunity to present her case again.

[20] Under s 146 of the QCAT Act this Appeal Tribunal, in deciding an appeal against a decision on a question of law, may amongst other things set the decision aside and return it to the Tribunal for re-consideration. In practical terms, this matter needs to be re-heard.