Amos v Wright [2016] QCATA 167

CITATION: Amos v Wright [2016] QCATA 167 PARTIES: Edward Amos (Applicant/Appellant) v Michael Wright (Respondent) APPLICATION NUMBER: APL104 -16 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe OAM DELIVERED ON: 7 November 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – PROCEDURE - OVERRIDING PURPOSE OF AND OBLIGATIONS UNDER RULES OR ACTS REGULATING CIVIL PROCEEDINGS – DUTY TO OBSERVE RULES OF NATURAL JUSTICE – where tribunal did not allow applicant to make submissions – where tribunal did not embark on hearing on the merits – whether error – whether grounds for leave to appeal APPEAL – LEAVE TO APPEAL – PROCEDURE – SERVICE – GENERALLY – where claim served on address of respondent’s employer – where respondent no longer employed by employer – where respondent did not appear at hearing – where employer appeared at hearing – where applicant objected to employer’s appearance – whether error – whether grounds for leave to appeal APPEAL – LEAVE TO APPEAL – LMITATION OF ACTIONS – LIMITATION OF PARTICULAR ACTIONS – SIMPLE CONTRACTS, QUASI CONTRACTS AND TORTS – where cause of -- 1 of 5 -- 2 action property damage through motor vehicle accident – where cause of action arose in 2012 – where tribunal commented that action was started late – whether error – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 43(1), s 43(3), s 142(3)(a)(i) Acts Interpretation Act 1954 (Qld) s 39(1)(a)(ii) Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 39(1)(b) Queensland Civil and Administrative Tribunal Practice Direction 8 of 2009 Chambers v Jobling (1986) 7 NSWLR 1 Dearman v Dearman (1908) 7 CLR 549 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] Edward Amos filed a claim for damage to his motor vehicle arising from an incident in 2012. Michael Wright was driving the other vehicle, a truck owned by McHara Transport. [2] Mr Wright did not appear at the hearing but McHara Transport was represented. The tribunal dismissed Mr Amos’ claim because it was not persuaded that the incident, or the damage, actually occurred. [3] Mr Amos 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 [4] Mr Amos says the tribunal did not embark on a hearing on the merits. He says the tribunal refused to hear his submissions, thereby not giving him natural justice. He says the tribunal allowed two men to appear for Mr Wright when they had no authority or standing to do so. Mr Amos says the tribunal erred in finding that he should have started his action earlier. He says the tribunal erred in requiring a police report. He says the tribunal erred in not 1 QCAT Act s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294 at [3]. -- 2 of 5 -- 3 allowing him to produce photographs. He says the tribunal erred in stating that his action was statute barred. He says the tribunal demonstrated apprehended bias. The conduct of the hearing [5] I’ve read the transcript of the hearing. Mr Amos is correct when he says he was not allowed to present his case. He said he had no police report.3 He told the tribunal he had photos4 but the tribunal did not take them. He said he had no witnesses.5 And then, without hearing from Mr Amos further, the tribunal said that there was no support for the fact an accident occurred.6 [6] When Mr Amos started to explain his case, and told the tribunal that liability was admitted7, the tribunal immediately asked to hear from the respondents.8 The respondents denied liability9 but the tribunal never referred back to Mr Amos so that he could outline his case. He did not have an opportunity to present his photographs. [7] The tribunal did not embark on a hearing on the merits. The tribunal did not give Mr Amos natural justice. While I am not persuaded that the tribunal’s conduct of the proceedings amounts to apprehended bias, I am persuaded that the tribunal acted in error. The representation of the respondent [8] The tribunal allowed Brett Harris and Ray McCutchen, directors of McHara Transport, to appear at the hearing. Mr Amos says they had no standing to represent Mr Wright. [9] The tribunal accepted their appearances as agents for Mr Wright. There was nothing in writing from Mr Wright to confirm that he appointed them as his agents. [10] Parties generally must represent themselves10 although the tribunal may give a party leave to be represented by another in certain circumstances.11 The tribunal did not turn its mind to whether Mr Wright should be represented and I can find nothing in the evidence to justify giving Messrs Harris and McCutchen leave. The tribunal was in error in accepting that Mr Wright was represented by Messrs Harris and McCutchen. 3 Transcript page 1-4, line 8. 4 Transcript page 1-4, line 12. 5 Transcript page 1-4, line 21. 6 Transcript page 1-4, line 41. 7 Transcript page 1-4, line 45. 8 Transcript page 1-5, line 1. 9 Transcript page 1-5, line 4. 10 QCAT Act s 43(1). 11 QCAT Act s 43(3). -- 3 of 5 -- 4 Did the tribunal err in finding Mr Amos should have started his action earlier? [11] Mr Amos has referred the appeal tribunal to the Limitation of Actions Act 1974 (Qld), pointing out that the time for starting an action in tort is six years and that the Act works as a shield, not a bar to proceedings. [12] Mr Amos has misinterpreted the tribunal’s comments. The tribunal acknowledged that the limitation period was six years.12 The tribunal’s point was that Mr Amos took a long time to take action over a motor vehicle accident. The tribunal was not in error. Should I grant leave to appeal? [13] Even though I found an error by the tribunal, I should not grant leave to appeal unless that error resulted in a substantial injustice. I am not so persuaded. [14] Mr Amos claimed $260 for the cost of repairs to his vehicle carried out in 2012. He claimed interest of $96.90, even though he could not demonstrate to the tribunal a demand for payment any earlier than 2015. By any standard, the amount of the claim is small. [15] Mr Amos wants to file fresh evidence with his application for leave to appeal. Importantly, he wants me to accept a copy of a letter dated 31 March 2012, in which he demands payment from McHara Transport ‘Attention: Brett’. The letter appears to be a page from a sequentially numbered book. Mr Harris denied receiving a letter in 2012.13 Without seeing the original of the book, I am not necessarily persuaded that the copy of the letter is credible but, for reasons that I will shortly set out, I will accept that evidence. [16] Mr Amos sued the driver, Mr Wright. He made that point clear to the tribunal.14 He served the claim on Mr Wright by posting it to McHara Transport. Service on an individual can be effected by post15 to the ‘relevant address’. For a person, the ‘relevant address’ is their last known residential or business address.16 [17] Section 39(1)(a)(ii) of the Acts Interpretation Act 1954 (Qld) states that service on an individual may be effected by sending it to the person’s last known place of residence or business of the person last known to the server. [18] There seem to me an implication in both the Acts Interpretation Act and the Practice Direction that a person must be carrying on business at a particular address to enable service to be effected at that address. It is not enough 12 Transcript page 1-10, lines 44 – 46. 13 Transcript page 1-8, line 30 to page 1-9, line 2. 14 Transcript page 1-12, lines 28-29. 15 QCAT Rules 2009 r 39(1)(b). 16 Practice Direction 8 of 2009. -- 4 of 5 -- 5 that the person is employed at that address, or might habituate that address. The anchor to that address – the reason it will come to the person’s attention – is that the person owned and operated a business from that address. Mr Wright did not operate a business from McHara Transport’s address. [19] There was no evidence before the tribunal that Mr Wright had been served or that he had received the tribunal’s notice of hearing. In fact, the evidence suggested the contrary. As I have already mentioned, there was nothing in writing from Mr Wright acknowledging his appointment of Messrs Harris and McCutchen. [20] If I accept his fresh evidence, Mr Amos knew he was dealing with McHara Transport and not Mr Wright in 2012. There is no evidence he made inquiries to confirm Mr Wright still worked with McHara Transport, or that service on McHara Transport would come to Mr Wright’s attention. Even if that evidence was available, Mr Amos did not seek an order for substituted service. [21] Because the tribunal could not be satisfied that Mr Amos had properly served Mr Wright, the application was bound to fail. For that reason, leave to appeal should be refused. -- 5 of 5 --