Fenton v Dunkley [2016] QCAT 330

CITATION: Fenton v Dunkley [2016] QCAT 330 PARTIES: Paul Fenton (Applicant) v Charles Alfred Dunkley (Respondent) APPLICATION NUMBER: MCDO718-16 MATTER TYPE: Other minor civil dispute matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Adjudicator Bertelsen DELIVERED ON: 14 September 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. The application is dismissed for lack of jurisdiction. CATCHWORDS: Claim for possession of chattels – not a consumer claim – but an action for possession or conversion – form of action not with QCAT’s jurisdiction Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 12 APPEARANCES: 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] The application filed 19 April 2016 is postured as a consumer dispute for the return of goods, a Mercedes motor vehicle, at $6,700.00 and transport costs of $1,500.00. [2] Mr Fenton, as applicant, says Mr Dunkley borrowed his Mercedes on the basis it was to be returned. He says Mr Dunkley then stole the vehicle. The police became involved and indicated to Mr Fenton it would be ‘a quicker process to have my motor vehicle or the funds for what the motor vehicle -- 1 of 2 -- 2 cost returned to me as Mr Dunkley keeps making false statements in regards to the motor vehicle’. Mr Fenton also states in his application ‘if Mr Dunkley is not in the position of returning any sort of funds I would ask the Tribunal to consider that I will settle for one livestock horse that is registered under the name Milroy Springtime’. [3] On 26 July 2016, the respondent Mr Dunkley, filed an application to dismiss or strike-out Mr Fenton’s initiating application asserting the claim was ‘in fact a part of an overall de facto relationship property settlement and as such the matter should be heard in a Federal Circuit Court’. He claimed to be seeking legal advice. [4] The Tribunal directed that prior to bypassing mediation the issue of jurisdiction ought firstly be determined. [5] Mr Fenton asserted Mr Dunkley to be a ‘con artist’ raising all sorts of circumstances and situations, which appeared to point to Mr Dunkley’s unscrupulous conduct and financial indebtedness. He wanted ‘proof’ of Mr Dunkley’s claim of a de facto property settlement, referring to Mr Dunkley’s many creditors and never actually hearing from Mr Dunkley’s imaginary lawyer. He accuses Mr Dunkley of being a fraudulent, derelict and pathological liar disposed to psychotic behaviour. [6] Irrespective of whether or not there was ever a de facto relationship, this claim revolves around return of possession of a chattel, or an action, in the alternative, being a claim for compensation resulting from the wrongful interference with the chattel (the Mercedes) over a period of time i.e. conversion where Mr Fenton alleges that Mr Dunkley has dealt with the Mercedes in a manner which is so seriously inconsistent with Mr Fenton’s right to possession that it amounts to a denial of that right. [7] The sort of action initiated by Mr Fenton is not within the purview of s 12 of the Queensland Civil and Administrative Act 2009 (Qld). It is most certainly not a consumer claim, nor is it a debt. Other forms of action referred to in s 12 are irrelevant. [8] Given the de facto relationship assertions by Mr Dunkley, there seems little point in transferring this application to the Magistrate’s Court, which may find itself lacking jurisdiction. [9] The proper course for the Tribunal to be followed here is for the application to be dismissed for lack of jurisdiction, and for Mr Fenton to initiate, presumably with advice, his claims in a jurisdiction empowered to deal with them. -- 2 of 2 --