Xtreme First Impressions Pty Ltd v Miller - [2023] QCATA 31

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Xtreme First Impressions Pty Ltd v Miller [2023] QCATA 31

PARTIES:

XTREME FIRST IMPRESSIONS PTY LTD

(Applicant)

v

ROSALINE MILLER

(Respondent)

APPLICATION NO/S:

APL222-21

ORIGINATING APPLICATION NO/S:

MCDO58/21 (Cairns)

MATTER TYPE:

Appeals

DELIVERED ON:

5 April 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Forrest SC

ORDERS:

1.     The Application for leave to appeal is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – FROM QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – BY LEAVE OF TRIBUNAL – where the Applicant seeks to appeal a decision by a Magistrate sitting as a Tribunal Member in a Minor Civil Dispute – where the Applicant sought leave to be legally represented as the Respondent is a solicitor – where there is no complex factual or legal consideration in respect of the substantive claim – where the application for leave is dismissed

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 43, s 142(3)

Pickering v McArthur [2005] QCA 294, cited

APPEARANCES & REPRESENTATION:

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

This is an application for leave to appeal and, if leave is granted, an appeal against the orders of a Magistrate sitting as a Tribunal Member in a Minor Civil Dispute – Minor Debt matter.
On 23 July 2021, his Honour Magistrate Pinder, sitting as the Tribunal Member at first instance, made orders in the first instance proceedings dismissing the Applicant’s application pursuant to s 43 of the Queensland Civil and Administrative Tribunal Act 2009 (the “QCAT Act”) for leave to be legally represented in the first instance proceedings.
On 12 August 2021, the Applicant filed an Application for Leave to Appeal against that decision. That is a long time ago.
I became a Judicial Sessional Member of this Tribunal in June 2022. Upon my appointment, I was given many of these outstanding applications for appeal to determine on the papers. I have since then, at the same time as running my private practice as a barrister and mediator, been working through the matters I have been given the responsibility to determine. I expect the delay in the determination of this matter between filing and its delivery to me to determine is attributable to the scant resources that the Tribunal has at its disposal. I regret the time it has taken the Tribunal to deliver this decision, most particularly the months since the file was given to me to determine. This is the first I could get to it, given the volume of matters I am dealing with.
SOME FACTUAL BACKGROUND
The Applicant and the Respondent entered into a contract for the Applicant to provide refurbishment services to the Respondent’s swimming pool at her residential property. The contract stipulated that the fibre glass pool would be finished with a coating of paint in “Sapphire Blue”. The contract provided for a deposit…

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.

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Details

Case: [2023] QCATA 31
Decision Date: 5 April 2023

CaseChat Overview and Summary

In the matter of Xtreme First Impressions Pty Ltd v Miller, the Applicant, a company providing refurbishment services, sought to appeal a decision by a Magistrate sitting as a member of the Queensland Civil and Administrative Tribunal (QCAT). The Applicant had engaged in a contract with the Respondent to refurbish a swimming pool, which was to be painted in "Sapphire Blue." Upon completion, the Applicant sought payment of the remaining balance of the contract price, which the Respondent refused on the basis that the pool had been painted in "Deep Blue" instead of "Sapphire Blue." The Applicant filed proceedings in QCAT's Minor Civil Dispute – Minor Debt jurisdiction, seeking the balance of the contract price. The Respondent, who is a solicitor, opposed the claim and appeared as an individual in the proceedings. The Applicant sought leave to be legally represented in the proceedings on the basis that the Respondent is a solicitor, but this application was dismissed by the learned Magistrate. The Applicant subsequently lodged an Application for Leave to Appeal against the decision, which was the subject of the appeal before the court.

The primary legal issue before the court was whether leave to appeal should be granted to the Applicant, considering the procedural decision made by the Magistrate. The Applicant argued that they required leave to appeal due to the complexity of the issues involved, while the Respondent contended that the substantive claim did not involve complex factual or legal considerations. Furthermore, the Respondent asserted that the fact that she is a solicitor did not invoke a requirement to grant the Applicant leave to be represented. The court had to determine whether the refusal of leave to be legally represented in the proceedings created a substantial injustice and whether there was a reasonable argument of error on the part of the Magistrate that needed to be corrected.

The court dismissed the Application for leave to appeal, finding no error on the part of the Magistrate and no substantial injustice caused by the refusal of leave to be legally represented. The court held that the substantive proceedings should be considered as a Minor Civil Dispute – Minor Debt matter rather than a building dispute matter. Consequently, the appeal was dismissed, and the court did not grant leave to appeal or determine the appeal.

ORDERS:
1. The Application for leave to appeal is dismissed.

Orders

Orders of the court

1. The Application for leave to appeal is dismissed.

Background

Background to the litigation

I became a Judicial Sessional Member of this Tribunal in June 2022. Upon my appointment, I was given many of these outstanding applications for appeal to determine on the papers. I have since then, at the same time as running my private practice as a barrister and mediator, been working through the matters I have been given the responsibility to determine. I expect the delay in the determination of this matter between filing and its delivery to me to determine is attributable to the scant resources that the Tribunal has at its disposal. I regret the time it has taken the Tribunal to deliver this decision, most particularly the months since the file was given to me to determine. This is the first I could get to it, given the volume of matters I am dealing with. SOME FACTUAL BACKGROUND The Applicant and the Respondent entered into a contract for the Applicant to provide refurbishment services to the Respondent’s swimming pool at her residential property. The contract stipulated that the fibre glass pool would be finished with a coating of paint in “Sapphire Blue”. The contract provided for a deposit to be paid in the sum of $5,225. That was half of the total contract price. It was paid by the Respondent. The job was completed and the Applicant required payment of the balance. The Respondent did not pay it, asserting that the pool had been finished with the wrong colour paint, namely, “Deep Blue” instead of “Sapphire Blue”. She wanted it done in “Sapphire Blue”. The Applicant asserted to the Respondent that the “Deep Blue” colour it had used was the exact same colour as “Sapphire Blue”, but because it came from a different supplier it had to have a different name. The Respondent rejected that assertion. The Applicant commenced proceedings in the Tribunal in its Minor Civil Dispute – Minor Debt jurisdiction for payment of the balance of the contract price, namely, another $5,225. The Respondent has defended the proceedings. The Respondent is a solicitor, but she appears as an individual in the proceedings. Because she is a solicitor, the Applicant argued that he should be given leave to have legal representation. He argued though that it was because of the complexity of the issues involved. THE FIRST INSTANCE DECISION The learned Magistrate sitting first instance in the Tribunal dismissed the application on the basis that there are no complex factual or legal considerations in respect of the substantive claim. His Honour also reasoned that the mere fact that the Applicant has brought proceedings against a person who just happens to be a solicitor by profession does “not invoke properly a requirement to consider granting the applicant leave to be represented”. [Italics added]THE APPLICATION FOR LEAVE TO APPEAL AND THE APPEAL The Applicant lodged an Application for Leave to Appeal against his Honour’s decision. In that Application, the Applicant asserted that he did not require leave to appeal. However, pursuant to s 142(3) of the QCAT Act, leave to appeal is required if the decision appealed against is not the Tribunal’s final decision in a proceeding. The decision appealed against was just a procedural decision in the proceeding and was not the Tribunal’s final decision in the proceeding. Accordingly, I am satisfied that leave to appeal is required.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Respondent is a solicitor, but she appears as an individual in the proceedings. Because she is a solicitor, the Applicant argued that he should be given leave to have legal representation. He argued though that it was because of the complexity of the issues involved. THE FIRST INSTANCE DECISION The learned Magistrate sitting first instance in the Tribunal dismissed the application on the basis that there are no complex factual or legal considerations in respect of the substantive claim. His Honour also reasoned that the mere fact that the Applicant has brought proceedings against a person who just happens to be a solicitor by profession does “not invoke properly a requirement to consider granting the applicant leave to be represented”. [Italics added]THE APPLICATION FOR LEAVE TO APPEAL AND THE APPEAL The Applicant lodged an Application for Leave to Appeal against his Honour’s decision. In that Application, the Applicant asserted that he did not require leave to appeal. However, pursuant to s 142(3) of the QCAT Act, leave to appeal is required if the decision appealed against is not the Tribunal’s final decision in a proceeding. The decision appealed against was just a procedural decision in the proceeding and was not the Tribunal’s final decision in the proceeding. Accordingly, I am satisfied that leave to appeal is required. Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.[1] [1] Pickering v McArthur [2005] QCA 294.MY DETERMINATION Firstly, I am not satisfied that there is any error on the part of the learned Magistrate to be corrected and, secondly, I do not consider refusal of leave to be legally represented in the substantive proceedings creates injustice just because the person you are claiming against happens to be a solicitor. I do not consider it appropriate to grant leave to appeal or to determine the appeal as such. I dismiss the Application for leave to appeal. I also consider the question of the Tribunal’s jurisdiction to hear the substantive proceedings as a Minor Civil Dispute – Minor Debt matter as opposed to a building dispute matter should be carefully considered by all concerned before the matter proceeds further to substantive hearing in the minor civil dispute jurisdiction.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.