Drane v Taylor [2022] QCATA 12

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Drane v Taylor [2022] QCATA 12 PARTIES: MATTHEW NEVILLE DRANE (applicant/appellant) v LAUREN MAREE TAYLOR (respondent) APPLICATION NO/S: APL104-21 ORIGINATING APPLICATION NO/S: MCDO5/20 Bundaberg MATTER TYPE: Appeals DELIVERED ON: 3 February 2022 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judicial Member D J McGill SC ORDERS: 1. Application for leave to appeal from the decision of the Tribunal of 11 March 2021 dismissed. 2. Any submissions in writing by the appellant as to why no order for costs should be made must be filed in the Tribunal, and a copy served on the solicitor for the respondent, within twenty-one days from the date of this decision. 3. If such submissions are filed and served, the respondent may file and serve submissions in writing in reply within fourteen days from the date of service of the appellant’s submissions, and the Appeal Tribunal will determine the application for costs on the papers on a date to be fixed. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – application for leave to appeal – whether bias or apparent bias – whether failure to accord natural justice – whether applicant had proved his case – application for leave dismissed Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3(b); s 13(1); s 28(2); s 28(3)(b); s 142(3)(a)(i). Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69 Campbell v Queensland Building and Construction -- 1 of 6 -- 2 Commission [2021] QCATA 34 Crime and Corruption Commission v Lee [2019] QCATA 38 Gunter v Wilkins [2021] QCA 274 Pickering v McArthur [2005] QCA 294 The Pot Man Pty Ltd v Reaoch [2011] QCATA 318 Wilkins v Gunter (No 2) [2021] QCATA 42 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: R Whyte, solicitor. REASONS FOR DECISION [1] This is an application for leave to appeal from the decision of a Member of the Tribunal in a Minor Civil Debt claim. The appellant claimed that the respondent owed him money as a consequence of two loans he had made to her. Following a hearing, a Member of the Tribunal1 rejected the appellant’s claims, on the basis that he had not proved that the payments made by him to the respondent were loans, rather than gifts. [2] Because this matter was a minor civil dispute, leave is required to appeal to the Appeal Tribunal.2 As a general proposition, when leave to appeal to the Appeal Tribunal is required, it will be granted only where there is a reasonable argument that the decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error, or where the appeal raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage.3 In deciding whether grounds for leave to appeal have been shown, it is relevant to consider that the proceeding was a minor civil dispute, and the obligation on the Tribunal was to make orders it considered to be fair and equitable to the parties to the proceeding in order to resolve the dispute: QCAT Act s 13(1). The Tribunal was also required to comply with the QCAT Act s 28 and s 29. Grounds of Appeal [3] The appellant set out three grounds of appeal in the Application for leave to appeal, although the first covers two separate matters. One was that the finding that the conduct of the appellant constituted a forgiveness of the loans was in error. The short answer to that ground is that what the Member found was that the payments were not loans at all, but gifts. In those circumstances, forgiveness of debt does not arise. It is true that the Member, at p 1-35, spoke of a statement “I didn’t want the money” as converting a loan into a gift, but that was predicated on the appellant’s case being taken at its highest, and it is clear that the Member rejected the 1 A Magistrate sitting as a Member under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”), s 171(2). 2 The QCAT Act, s 142(3)(a)(i). 3 Crime and Corruption Commission v Lee [2019] QCATA 38 at [12], citing appellate authority. See also Campbell v Queensland Building and Construction Commission [2021] QCATA 34 at [17]. -- 2 of 6 -- 3 appellant’s evidence, and so this issue really did not arise. I shall refer to this statement again later at [13]. [4] The second part of the first ground was that there was a denial of natural justice in refusing an application for adjournment by the appellant. I will return to that issue when considering the course of the hearing. [5] The second ground was that the Tribunal denied the appellant natural justice and demonstrated bias or apprehended bias in favour of the respondent by allowing the respondent to appear by telephone when on a previous occasion both parties had been denied the opportunity to appear by telephone. The Member who conducted the substantive hearing was not the person who allowed the respondent to appear at the hearing by telephone, as she did; the appellant appeared at the hearing in person. This therefore cannot suggest bias or apprehended bias by the relevant Member. Further, at the beginning of the hearing the appellant said he did not think that the appearance of the respondent on the telephone should prevent the hearing: p 1-2. [6] Apart from that, I cannot find on the copy of the file from the Bundaberg registry any reference to the parties being denied leave to appear by telephone on a previous occasion. On 27 June 2020 there is a note at a mention that both parties had leave to appear by phone, although it is not clear whether that applied to that mention or to the substantive hearing. Leave to appear by telephone is commonly granted on an informal basis and without a formal application or notice to the other party. During the past two years, it has been encouraged, and at times required. If there was a technical breach of natural justice in granting leave to the respondent to appear by telephone, the appellant knew about this at the hearing and elected to proceed anyway. In the circumstances, this ground is without substance. [7] The third ground was that the Member, by permitting the respondent to submit evidence of the existence of criminal and domestic violence proceedings against the appellant in the Local Court at Port Macquarie, had denied the appellant natural justice or demonstrated bias or apparent bias against the appellant. The existence of an apprehended violence order against the appellant was mentioned in the Response to the appellant’s claim, and the appellant had a copy of that response, as he said at the hearing: p 1-19. The respondent mentioned the AVO at the foot of p 1-6, without objection from the appellant, and at p 1-13 the appellant spoke of the parties having been in court now for three years, and that there had been AVO’s against each other. [8] There was no application to the Member to disqualify himself because he was aware of these matters, and given the context in which this claim arose, it was inevitable that the Member would be made aware of them. It appears that at one time the parties were in a relationship, and the appellant said that in the course of the relationship he had made her gifts amounting to more than $20,000: p 1-5. The relationship had since broken down, and it was clear that it was the respondent who was trying to end it, and the appellant who was, at least at one time, trying to hang onto it. The respondent’s case in essence was that the appellant was using these proceedings to harass her, and that the payments in question were never loans. [9] The Member was not bound by the rules of evidence, and was required to deal with the matter in a way that was accessible, fair, just, economical, informal and quick, and to make orders he considered fair and reasonable to the parties to resolve the -- 3 of 6 -- 4 dispute, according to the substantial merits of the case.4 There was no error on the part of the Member in this respect, and no substance to ground three. Course of the hearing [10] The appellant’s original application was to recover $9,600 said to be owed by the respondent, particularised as $3,100 as loans for the support of medical and other needs of a child, and $6,500 as loans for Family Court matters. At the hearing the appellant confined his case to two specific payments, made by bank transfer, $5,000 on 18 November 2018 and $2,500 made by bank transfer in May 2019: p 1-8, p 1- 14. The appellant said there was no agreement about when they were to be repaid. He claimed that they were designated as loans in text messages (p 1-9) but was unable to produce to the Member any text message to that effect, although he claimed he had large numbers of text messages which had passed between them. [11] It emerged that the appellant was quite unable to point to any evidence that the respondent had ever agreed to repay this money, either orally, in a text message or in writing. The highest his case came was when he agreed with the Member that in his mind these payments were loans (p 1-18) but, in view of the history of gifts to the respondent and the particular circumstances of the payments, this was not enough to show that they were loans rather than gifts. [12] The proposition that they were gifts was strengthened by some text messages from the appellant which the respondent attached to the Response to the claim. In an exchange of text messages after the $5000 was transferred, the respondent asked the appellant for bank details and said “I want to send it back. You didn’t need to transfer it.” The appellant replied “Just use the money. I’m not buying you off. Keep it to the side if you need it. Just accept the help Lauren, I always offered and you would never let me. You owe me nothing.” I regard that as a clear contemporaneous admission by the appellant that that payment was a gift.5 [13] With regard to the $2,500, the appellant said that at one time the respondent had paid him $1,500 of that, and he had returned it with a text “I didn’t want the money”: p 1-12. The appellant sought to explain this on the basis that he did not want to create a situation where he was accepting $1,500 in full satisfaction of the debt, but the Member did not accept that explanation. Apart from the fact that there was nothing to suggest that he was being offered this amount in full satisfaction rather than as a part payment, he did not say at the time that that was why he was returning it. The member did not accept his evidence, and regarded this action and text as supporting the proposition that the payment was a gift, and so do I. It is clear evidence that the payment of $1,500 was a gift, and supports the proposition that the original payment of $2,500 had been a gift. [14] In view of the evidence that there had been a lot of gifts to the respondent, the Member asked how he could distinguish between the gifts and these payments to show that these were loans: p 1-17. The appellant’s reply was: “I will just say I’m an idiot.” This would not have supported the credibility of the appellant, not would his 4 The QCAT Act, s 3(b), s 13(1), s 28(2), s 28(3)(b). 5 The respondent’s position was that the payment arose when the appellant’s actions in connection with a proceeding she had in the Family Court caused her additional legal costs, and this was a form of compensation for that. That would not have made it repayable. -- 4 of 6 -- 5 statement at p 1-21 that he did not believe certain words6 were said by him. When taken to the annexure to the respondent’s Response, which should not have come as a surprise to him, he was unable to offer a plausible explanation for having said “You owe me nothing”, or for having denied having said it: p 22. [15] When pressed by the Member to produce any material which he relied on to show that the payments were loans, he produced some documents which were obviously irrelevant, and showed the Member some texts on his phone, which also proved nothing. That was the view the Member expressed at the time, and from his description of the material it was obviously correct. It was in this context that he asked for an adjournment, in effect to gather additional evidence which he had not brought to the hearing. Why he did not bring it to the hearing he did not explain. That application was rejected by the Member. [16] The appellant had had ample notice that the hearing of the matter was to occur that day. A notice advising him of the hearing on 11 March 2021 was posted to him on 3 February 2021, The matter had been on foot since January 2020, and the respondent’s material was attached to her response, filed 2 April 2020, so he had plenty of time to gather evidence and prepare his case, if he sought to show that the text messages in that material should not be taken at face value. The resources of the Tribunal are not unlimited, and parties are expected to appear at hearings ready to present their case, including producing all the relevant evidence on which they intend to rely.7 Hence there are only limited opportunities to provide further evidence on appeal.8 If the appellant was not properly prepared for the hearing, and had not assembled the evidence on which he wished to rely, that was his fault, and in those circumstances the Member was not bound to accede to his application for an adjournment. [17] A decision to refuse an application for an adjournment is an exercise of discretion on the part of the Member concerned. An exercise of discretion will not be readily reviewed on appeal, particularly on a procedural issue such as this, and particularly when it has not been shown that the Member was acting under any error of law or fact in exercising the discretion.9 That has not been shown, and accordingly the appeal could succeed only if, in the circumstances, the Member had been bound to accede to the application for the adjournment. I do not consider that the Member was, and accordingly this challenge to the decision fails. Conclusion [18] Having read the transcript and the other material, and considered the submissions of the parties, I am not persuaded that leave to appeal should be given. There is no point of general application which arises, and there is no reason to think that the appellant might have suffered a substantial injustice. On the contrary, my consideration of the material leads me to the conclusion that the decision of the 6 Some of the words in his text quoted at [14] above. 7 Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69 at [9] – [12]; The Pot Man Pty Ltd v Reaoch [2011] QCATA 318 at [8] – [10], both per Wilson J. 8 Wilkins v Gunter (No 2) [2021 QCATA 42 at [95]; Gunter v Wilkins [2021] QCA 274 at [7]. The appellant did not seek to provide on appeal any additional evidence to show what he could have assembled had he been given the opportunity. 9 Pickering v McArthur [2005] QCA 294 at [3]. -- 5 of 6 -- 6 Member was fair and reasonable to the parties, and according to the substantial merits of the case. [19] The respondent submitted that the application for leave to appeal was frivolous and vexatious. In view of the history of the relationship between the parties, the proposition that it was vexatious was certainly plausible, but it is sufficient to decide it on the basis that I have, that there was no substance to the appellant’s case on the merits. [20] The appellant has failed to show that there is good reason to grant leave to appeal. His application for leave is dismissed. The respondent has sought costs of the application for leave to appeal. If the appellant opposes an order for costs, his submissions in writing as to why no order for costs should be made must be filed in the Tribunal, and a copy served on the solicitor for the respondent, within twenty- one days from the date of this decision. If such submissions are filed and served, the respondent may file and serve submissions in reply within fourteen days from the date of service. The Appeal Tribunal will determine the application for costs on the papers on a date to be fixed. -- 6 of 6 --