Davoren v Balgowan [2018] QCATA 88

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Davoren v Balgowan [2018] QCATA 88 PARTIES: TERENCE CLAVER DAVOREN (applicant/appellant) v ROSS BALGOWAN (respondent) APPLICATION NO/S: APL264-17 ORIGINATING APPLICATION NO/S: MCDO52-16 MATTER TYPE: Appeals DELIVERED ON: 8 June 2018 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Carmody ORDERS: 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The tribunal’s order is set aside. 4. The matter is remitted to the tribunal for reconsideration in accordance with the law and the substantial merits. CATCHWORDS: APPEALS – MINOR CIVIL DISPUTE – where the applicant was ordered to refund money paid to the respondent for van repairs – where the applicant filed mechanical reports after the date for compliance on more than one occasion – where the tribunal has discretion to waive strict compliance with procedural directions – where the tribunal has an overriding duty to act fairly according to the substantial merits of the case – where the tribunal failed to consider any reasonable excuse for non- compliance – where the discretion to make final orders by default miscarried for failure to consider and lack of proportionality – where the tribunal’s decision is set aside and the matter remitted for reconsideration on the merits Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 4(c), 9(1), 11, 12(1), 13(1), 28(2)-(3), 48(1)-(3), 62 Abebe v The Commonwealth (1999) 197 CLR 510 -- 1 of 5 -- 2 Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 House v The King (1936) 55 CLR 499 Kruger v Commonwealth of Australia (1997) 190 CLR 1 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Sharp v Wakefield [1891] AC 173 Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 APPEARANCES: 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 [1] The tribunal resolved a minor civil dispute between the parties by ordering the applicant to refund money paid to the respondent for what were found to be faulty mechanical repairs. [2] The applicant contends that allowing the tribunal’s decision to stand would be substantially unjust to him because no hearing on the merits was conducted and any procedural breach was an insufficient reason for the adverse order. [3] The standard criteria for leave to make an appeal are usually cited as serious doubt about the correctness of the decision in question (arguable error) and substantial injustice (a genuine chance of a better result for the applicant if the error is corrected). The context [4] The respondent applied to the tribunal to deal with a consumer dispute by making an order requiring the respondent to refund $4,500 in July 2017 on the basis of allegations that repairs to his 20 year old Toyota Hiace van were substandard. [5] The applicant most relevantly complained of engine vibrations and repeated unsuccessful attempts to fix them. [6] The respondent disavows any liability and says any ongoing problems have nothing to do with his workmanship and are more likely due to “inadequate and illegal alterations” made by the applicant himself. [7] The applicant filed three expert reports from Cooroy Auto Wreckers (17 November 2015), Autocare Automotive Services Noosaville (undated but pre 17 February 2016) and Gympie Motor Rebuilders & Mechanical Repairs (also undated but before the respondent’s MCD claim was filed) all of which he says “absolve” him from liability. [8] The matter was referred to mediation on 11 November 2016 without success. The tribunal then directed the applicant to obtain one more independent assessment of the van from John Madill Toyota Noosaville within 28 days on seven days notice to the -- 2 of 5 -- 3 respondent (obviously) so he could elect to witness the inspection process with or without his own mechanic. [9] The case was later adjourned to 14 July 2017. The applicant was directed to file the Madill report seven days before the hearing; that is, by 7 July 2017. [10] At the hearing the applicant tendered a favourable report (dated 13 July 2017) from Madill Toyota but the tribunal rejected it for noncompliance with the direction to file it a week before. [11] After declaring at T2-7:45 that “… court directions must be complied with to the letter” the tribunal went on to give judgment against the applicant for noncompliance with “three court directions”.1 [12] The applicant had in fact only breached two not three directions before 14 July 2017. QCAT’s role and functions [13] The tribunal’s jurisdiction to hear and decide a minor civil dispute is statutory.2 In a proceeding for a minor civil dispute (including a claim arising out of a contract between a consumer and trader) the jurisdiction is triggered when a party applies for the tribunal to deal with a dispute within scope.3 Section 13(1) mandates the making of orders (including requiring the repayment of monies) that the tribunal “…considers fair and equitable to the parties to the proceeding in order to resolve the dispute …” The procedural discretions [14] The tribunal must ensure that proceedings are conducted informally, cheaply and quickly.4 Meeting this goal, however, is subject to the overriding duty to act fairly according to the substantial merits of the case5 and consistently with achieving overall justice. [15] Every statutory discretion is confined by the subject matter, scope and purpose of the legislation conferring it6 and has to be exercised according to the “rules of reason”7 and “cannons or rational action”8 within the framework or any specific condition or considerations expressly provided or implied, for example, reasonableness.9 [16] Making an unreasonable discretionary decision is an abuse of power.10 [17] The requirement of reasonableness is separate and distinct from failure to consider or irrelevancies. Likewise, French CJ recognised11 that “a distinction may arguably be 1 T2-8:10. 2 QCAT Act ss 9(1), 11. 3 QCAT Act s 12(1). 4 QCAT Act s 4(c). 5 QCAT Act s 28(2), (3)(a). 6 Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492, 505. 7 Sharp v Wakefield [1891] AC 173, 179. 8 DJ Galligan, Discretionary powers: a legal study of official discretion (1986, Oxford University Press) 140, referred to with approval by French CJ in Li at [30]. 9 Kruger v Commonwealth of Australia (1997) 190 CLR 1, 36; Abebe v The Commonwealth (1999) 197 CLR 510, 555. 10 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 624. 11 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 352 [30]. -- 3 of 5 -- 4 drawn between rationality and reasonableness on the basis that not every rational decision is reasonable”. Nevertheless, a response is likely to be both unreasonable and irrational if it is disproportionate; that is, more excessive than is necessary for the intended purpose. [18] The power to make procedural directions at any time under s 62 QCAT Act, including for the production of a document, as “necessary for the speedy and fair conduct of the proceeding” must be read in this light. While parties are generally expected to obey reasonable purpose oriented directions within the stated or any extended period12 there is a residual discretion invested in the tribunal to waive or relieve a party from strict compliance with direction if the overall demands of justice can still be met without undue or incurable prejudice to another party. [19] If the tribunal considers a respondent is acting in a way that unnecessarily disadvantages another party, including by persistent or unexplained disregard for directions or orders for managing litigation, it may (but only after having regard to the matters mentioned in s 48(3) relating to blameworthiness) make its final decision in the applicant’s favour.13 [20] Thus, it is not correct to say that all directions “must be complied with to the letter”. Strict compliance can, for instance, be waived in the tribunal’s discretion and is expressly not required where there is a reasonable excuse for failure. [21] At T2-3:5 – 2-6:45 the self-represented applicant tried to explain his default. [22] As to the direction on 12 May 2017 to file a report by 7 July 2017 he raised “miscommunication”. He said that “there were circumstances. But … you don’t want to hear those obviously”.14 [23] As to the November 2016 direction he argued that the 28 days allowed was too short to obtain an independent assessment and while the respondent was not given the full 7 days required by the direction he had 5 days which he unreasonably ignored. [24] The tribunal made the final order without considering whether another less drastic option, including an adjournment with costs, was more appropriate. No finding was made under s 48(1) that the noncompliance disadvantaged (as distinct from inconvenienced) the respondent “unnecessarily” (or at all) in a way that could only be remedied by the making of a final order to resolve the dispute without conducting a hearing. Nor did it inquire into (or make any finding about) whether an extension could be granted under s 62 QCAT Act on terms that would avoid any unfairness to the respondent but still ensure that the hearing would be according to the relative merits based on all relevant information. [25] No investigation into the circumstances was undertaken to see if the direction was not obeyed because of a reasonable excuse within s 48(1)(a). There was no mention made of the extent to which having regard to the matters mentioned in s 48(3) influenced the tribunal’s decision to act under s 48(2) and make its final order. 12 QCAT Act s 62(4). 13 QCAT Act s 48(1)(a), (2)(b)(i). 14 T2-3:30. -- 4 of 5 -- 5 [26] In Minister for Immigration and Citizenship v Li15 a migration tribunal refused an adjournment to allow the applicant to file additional material about her skills as a cook in a review proceeding and went on to affirm the delegate’s decision to refuse a visa. The question for the High Court on appeal was whether refusing the adjournment was unreasonable. The Court ruled that the refusal breached the common law hearing requirement of procedural fairness amounting to jurisdictional error. [27] In so doing their Honours made it clear that the statutory latitude tribunals have to make just and equitable, cheap, informal and quick final orders free of the technical rules and adversarial procedures constraining regular courts according to the substantial merits of the case does not allow the exercise of those functions “including exercising discretions, except according to the law set out in (the establishing statute) and the rules of procedural fairness”.16 [28] Nor does it excuse it from the principles of legality and rationality or being reasonable in the Wednesbury sense17 and acting justly within the concept explained in House v The King.18 [29] The tribunal’s final order had such elements of arbitrariness and disproportionateness about it that it should be characterised as legally unreasonable because it lacks “an evident and intelligible justification”. [30] Correcting the tribunal’s error is called for in these circumstances to avoid substantial injustice to the applicant by granting leave to appeal, allowing the appeal, setting aside the order and remitting it to the tribunal for reconsideration of the matter according to the law and substantial merits. [31] It is, however, noted that as claimant the respondent has the onus of proving that the applicant’s breach of duty is the probable cause of his car trouble. The applicant doesn’t have to prove the contrary but may have an evidentiary burden to answer a prima facie case. The respondent will find it difficult to meet the standard of proof required to impose legal liability for the cost of repairs on the applicant if the applicant’s independent expert reports are left uncontradicted. 15 (2013) 249 CLR 332. 16 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 344 [14] (French CJ). 17 Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223. 18 House v The King (1936) 55 CLR 499. -- 5 of 5 --