East Coast Electrical and Refrigeration Pty Ltd v Brockhurst Muir's Pty Ltd [2012] QCATA 239

CITATION: East Coast Electrical and Refrigeration Pty Ltd v Brockhurst Muir’s Pty Ltd [2012] QCATA 239 PARTIES: East Coast Electrical and Refrigeration Pty Ltd (Applicant/Appellant) v Brockhurst Muir’s Pty Ltd (Respondent) APPLICATION NUMBER: APL444-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: R Oliver, Senior Member DELIVERED ON: 19 November 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. That leave to appeal is granted. 2. Parties have leave to be legally represented in the proceeding. CATCHWORDS: Legal Representation – where respondent filed an application for representation and the application was decided without giving the applicant an opportunity to be heard – where error of law – where the Appeal Tribunal can substitute its own decision Queensland Civil and Administrative Tribunal Act 2009, ss 3, 146 Lida Build Pty Ltd v Miller [2010] QCATA 17 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). -- 1 of 4 -- 2 REASONS FOR DECISION [1] On 30 September 2011 East Coast Electrical commenced a minor civil dispute proceeding against Brockhurst claiming $18,563.50 being money due and owing for the installation of equipment described as Series 3 Plateau Power Optimisation System at the Brockhurst’s premises at 135 Redland Bay Road, Capalaba. [2] Brockhurst defended the claim on the basis that no binding legal agreement had been entered into for the installation of the equipment and that East Coast Electrical were involved in a dispute with a third party as to the rightful ownership of the technology and intellectual property in the design of the Series 3 unit. At the same time Brockhurst filed its response on 27 October 2011 it also filed an application for leave to be legally represented in the proceeding. [3] On 27 October 2011 Brockhurst’s solicitors wrote to Prestige Legal and Corporate Services advising they had filed a response and application for representation but unfortunately, due to an oversight, did not include a copy of the response or the application for representation. After receiving the email, Prestige wrote to Minter Ellison on 8 November referring to the email correspondence of 27 October 2011 to advise that the documents referred to in that correspondence had not been included in the email. As matters transpired, when the filed response and application for representation were returned to Minter Ellison they were advised by the QCAT Registry that the application for legal representation would be “listed as a chamber application, this Friday 04/11/2011”. [4] The application was considered by a Tribunal Member on 4 November 2011 and the order was made granting Brockhurst leave to be legally represented in the proceeding. [5] East Coast Electrical filed an application for leave to appeal or appeal that decision principally because they had not had notice of the hearing, were denied procedural fairness by not being given an opportunity to respond to the application, and further that in any event the application should be dismissed because it did not satisfy the criteria set out in section 43 of the QCAT Act. [6] In the submissions in the appeal filed by Brockhurst, it is accepted that East Coast were not provided with a copy of the application by Minter Ellison, did not have notice of the hearing of the application for leave to be represented. I have no hesitation in coming to the conclusion that East Coat Electrical was denied procedural fairness by not being given an opportunity to respond to the application. This is an error of law and therefore leave to appeal must be granted. [7] When deciding an appeal on a question of law only, the Appeal Tribunal may confirm or amend the decision; set aside the decision and substitute its own decision or set aside the decision and return it to the original -- 2 of 4 -- 3 decision maker for reconsideration.1 In this case, both parties have filed additional submissions on the substantive issue about whether the application for leave to be represented should be dismissed or granted. The Appeal Tribunal is in a position, on the basis of those submissions and by reference to the material filed in the minor civil dispute proceeding to substitute its own decision on that application. [8] Section 43 of the QCAT Act says that the main purpose of the section is to have parties represent themselves unless the interests of justice requires otherwise. Subsection 3 of section 43 sets out those matters that the Tribunal might consider in deciding whether to grant leave for representation. Relevantly here, is whether the proceeding is likely to involve complex questions of fact or law. As the President observed in Lida Build Pty Ltd v Miller2 the application of section 43 involves a discretion that will fall to be considered in the particular circumstances of each particular case. [9] Ordinarily one would not expect there would be a need for legal representation in a minor civil dispute claim because generally they involve questions of fact. This case is no different. The central issue in dispute is whether or not, as a matter of fact, there was a concluded agreement reached between East Coast Electrical and Brockhurst for the installation of the Series 3 equipment at the fixed price of $18,282.00. The particulars set out in the claim and the response rely on specific conversations between James Brockhurst, a director of the respondent, and Mr Belle Isle of the applicant. If that was the only issue it will be difficult to see how the matter would involve complex questions of law or fact. [10] However, here, there is an added complication. Brockhurst says in the response that despite denying that there was any binding agreement between the parties, there was a dispute about the ownership of the technology and the intellectual property in the design and development, and operation of the power optimisation unit and therefore East Coast Electrical could not pass title. Brockhurst says that it was at risk by purchasing the equipment until the ownership rights of the equipment was established. It is unclear on the face of the filed documents exactly how this is relevant if the agreement is to be found in the discussions between the parties but it may raise an issue as to East Coast Electrical’s ability to perform the contract if they cannot pass title. This does potentially raise a complication which may go beyond the conversations between the parties' representatives. [11] The QCAT Act imposes an obligation on the Tribunal to deal with matters in a way that is accessible, fair, just, economical, informal and quick. For the parties, without legal representation, to try and deal with the relevance of the ownership of the technology and the intellectual property rights may well have the affect of defeating the objects of the Act. It is expected that lawyers would assist the Tribunal in achieving these object. 1 QCAT Act, s 146. 2 [2010] QCATA 17 at [9]. -- 3 of 4 -- 4 [12] I have therefore come to the conclusion that this is an appropriate case where representation should be granted and there will be an order accordingly. -- 4 of 4 --