Athian v Mayot [2017] QCATA 32

CITATION: Athian v Mayot [2017] QCATA 32 PARTIES: Joseph Manon Athian (Applicant/Appellant) v Ayuel Mayot (Respondent) APPLICATION NUMBER: APL196 -16 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe OAM DELIVERED ON: 9 March 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of the tribunal dated 9 June 2016 is set aside. 4. The proceeding is transferred to the Magistrates Court at Pine Rivers for hearing. 5. The evidence filed on APL196-16 shall be provided to the Magistrates Court as evidence in the proceeding. CATCHWORDS: APPEAL – PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – OVERRIDING PURPOSE OF AND OBLIGATIONS UNDER RULES OR ACTS REGULTING CIVIL PROCEEDINGS – where application for decision by default – where tribunal identified possible lack of jurisdiction – where tribunal called or submissions – where applicant Sudanese – whether tribunal complied with its s 29 obligations – whether tribunal provided natural justice – whether grounds for leave to appeal -- 1 of 4 -- 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28, s 29, s 52, s 137, s 138, s 142(3) Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 Fox v Percy (2003) 214 CLR 118 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 [1] Joseph Athian signed up to the South Sudanese Fund Sharing Group. From the two pages the tribunal received it seems: a) Mr Athian contributed $300; b) The total fund was $15,000; c) Members are expected to contribute fortnightly to the fund; d) Each week, members’ numbers are drawn and those members receive some form of payment from the Fund. e) The Fund ends when the last member receives his/her share. [2] Mr Athian was the last person on the list given to the tribunal. Ayuel Mayot was the second last person on the list. [3] Mr Athian filed a claim saying that he did not receive any money when his number came up. He said that Mr Mayot was the manager of the fund. The tribunal dismissed Mr Athian’s claim because it formed the view that the South Sudanese Fund Sharing Group was a wagering contract for which it had no jurisdiction. [4] Mr Athian wants to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.1 Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.2 [5] Mr Athian says the tribunal failed to comply with its obligation under s 29 of the QCAT Act. He says that the tribunal did not comply with s 28 of the 1 QCAT Act s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294 at [3]. -- 2 of 4 -- 3 QCAT Act. He has provided fresh evidence to the tribunal showing payments to Mr Mayot’s bank account. He now says that the payments to Mr Mayot were a loan. Should the tribunal accept fresh evidence? [6] The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined.3 Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests: Could Mr Athian have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?4 [7] Because Mr Mayot did not file a response to the claim, Mr Athian filed an application for a decision by default. The tribunal, acting on its own initiative and without hearing from Mr Athian, decided that it was a wagering contract and dismissed the claim. [8] Mr Athian’s application never went to a hearing. Therefore, Mr Athian did not have an opportunity to present his evidence to the tribunal. I will accept the fresh evidence. Did the tribunal fail in its s 29 obligations? [9] Section 29 of the QCAT Act requires the tribunal to take all reasonable steps to ensure that a party to a proceeding understands the practices and procedures of the tribunal.5 It must ensure that each party understands the actions of a party having regards to the party’s cultural background.6 It must also ensure that proceedings are conducted in a way that recognises, and is responsive to, cultural diversity, including the needs of a party who is from a different linguistic background.7 [10] The steps that can be taken to ensure a party understands the tribunal’s practices include: explaining the matters to a person; having an interpreter or other person give the explanation; or supplying an explanatory note in English or another language. [11] On seeing a possible problem with jurisdiction, the tribunal appropriately made orders for Mr Athian to file submissions about whether the tribunal had jurisdiction. But the tribunal knew that Mr Athian was Sudanese. It was clear from the application that he did not write the substantive part of the application but only signed it. It was obvious from the emailed submission that Mr Athian did not understand what the tribunal meant by ‘jurisdiction’. 3 QCAT Act ss 137 and 138. 4 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408. 5 QCAT Act s 29(1)(a)(i). 6 Ibid s 29(1)(b). 7 Ibid s 29(1)(c)(i). -- 3 of 4 -- 4 [12] I am not satisfied that the tribunal took all reasonable steps to fulfil its s 29 obligations. It could have, and should have, listed the proceeding for an oral hearing. Did the tribunal fail in its s 28 obligations? [13] Section 28(3)(c) of the QCAT Act states that the tribunal may inform itself in any way that it considers appropriate. Mr Athian says the tribunal failed to comply with s 28 because it did not consider the merits of his case or his personal circumstances. [14] I agree that the tribunal did not consider the merits of Mr Athian’s case. Mr Athian gave the tribunal very little information about his case and none about his personal circumstances. Had the tribunal conducted an oral hearing, then perhaps it could have explored these issues with Mr Athian. The failure of the tribunal is not a failure to inform itself; the failure is a failure to give Mr Athian that opportunity. That is a failure to provide natural justice, as required by s 28(3)(a), rather than a failure to inform itself under s 28(3)(a). Conclusion [15] The tribunal was in error in failing to explain to Mr Athian the possible jurisdictional problems with his claim, or to allow him to tell his story/give evidence to support his claim. Leave to appeal should be granted and the appeal allowed. [16] The decision of 9 June 2016 should be set aside and the proceeding remitted for hearing. Mr Athian now claims the money he paid to Mr Mayot was a loan. If he is right about that, then the tribunal has jurisdiction to make a decision. If, however, Mr Athian’s claim is through his membership in the South Sudanese Fund Sharing Group, then the tribunal will not be able to decide the dispute. [17] If the tribunal considers it does not have jurisdiction to hear all the matters in a proceeding, it may transfer the matter to a court.8 However, only a legally qualified member of the tribunal may order a transfer9 and this proceeding would normally be heard by a Justice of the Peace panel. Therefore, to preserve Mr Athian’s potential rights, I also order that the remitted proceeding be transferred to the Magistrates Court at Pine Rivers for hearing. [18] Because Mr Athian has filed evidence in the appeal tribunal, I also order that the evidence filed on APL196-16 shall be provided to the Magistrates Court as evidence in the proceeding. 8 Ibid s 52(2)(a). 9 Ibid s 52(7). -- 4 of 4 --