Bannink v Solar Energy Group Pty Ltd [2012] QCATA 148

CITATION: Bannink v Solar Energy Group Pty Ltd [2012] QCATA 148 PARTIES: Willem Johan Bannink (Applicant/Appellant) v Solar Energy Group Pty Ltd (Respondent) APPLICATION NUMBER: APL003-12 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President DELIVERED ON: 21 August 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. Application for leave to appeal granted. 2. Appeal allowed. 3. Set aside the decision of 20 December 2011 and return the matter to the Tribunal for re-hearing. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – liquidated demand for money – Magistrate failed to allow appellant to produce evidence – lack of procedural fairness resulted in an error of law – leave to appeal granted Queensland Civil and Administrative Tribunal Act 2009, ss 11, 143 (a) (i), 146 Spain v Union Steamship Co of New Zealand LPD (1923) 32 CLR 138 University of Ceylon v Fernando [1960] 1 WLR 223, Privy Council Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Ridge v Baldwyn (1964) AC 40 QUYD Pty Ltd v Marvass Pty Ltd (2009) -- 1 of 4 -- 2 1 Qd R 41 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 (QCAT Act). REASONS FOR DECISION [1] Mr Bannink says he was engaged by Solar Energy Group Pty Ltd to assist it in an enterprise involving solar energy and the renewable energy industry, with the particular goal of supplying solar systems to schools in Queensland. He claimed that Solar Energy had not fully paid him for the work he did under the agreement and brought proceedings in QCAT‟s Minor Civil Disputes jurisdiction for $20,478.77. [2] With his application he filed an invoice he sent to Solar Energy claiming $7,478.77 for expenses after May 2010. He also filed a number of other documents, none of which, however, clearly explained the basis for the additional claim of $13,000 although it is possible to detect, amongst his papers, that the claim involved what he said was two months‟ salary of $6,500 per month. [3] He also named, in his MCD claim, Ms Gabreilla Matacchioni as a respondent, apparently on the basis that she is, or was, a director of Solar Energy. [4] Solar Energy and Ms Matacchioni provided a response in the MCD proceedings denying the agreement, or any indebtedness to Mr Bannink. [5] The matter came on before a Magistrate, sitting as a QCAT member, on 21 December 2011. The recording of that proceeding shows that the learned Magistrate indicated, at the outset, that he had read the papers filed by all the parties for and against the application and was not persuaded QCAT had jurisdiction because Mr Bannink‟s claim was not a dispute for a liquidated amount and, the learned Magistrate said, there was no evidence of any contract or agreement between the parties. He then dismissed the claim for want of jurisdiction. [6] Mr Bannink seeks leave to appeal that decision. He says he was prevented, by the Magistrate, from presenting a document in the form of minutes of a company meeting which he says corroborated his claim, or calling the company accountant, whom he had subpoenaed. He also says that “…significant new evidence has arisen and that evidence was not reasonably available when the proceeding was heard and decided”. [7] The QCAT Appeal Tribunal directed on 20 January 2012 that the parties exchange written submissions after which the application for leave to appeal (and the appeal, if leave is granted) would be determined on the papers. Mr Bannink filed very short submissions referring to documents he -- 2 of 4 -- 3 had already filed in the original MCD proceedings. Solar Energy, contending that he had not complied with the Appeal Tribunal order, did not file any submissions. [8] QCAT has power to hear and decide Minor Civil Disputes1. The term „Minor Civil Disputes‟ is defined in Schedule Three to the QCAT Act to include a claim to recover a debt or liquidated demand of money. A claim is a “liquidated” one when the sum is either ascertained or capable of being ascertained by a calculation through the use of a formula2. [9] Mr Bannink‟s case, while perhaps being overburdened with documents, was a relatively simple one: he alleged an agreement with Solar Energy requiring that it pay him money for work and expenses, which he had reduced, at least in part, to the form of an invoice. It is possible that he could also have established the terms of the agreement supported the balance of the claim of $13,000, and could be ascertained and “liquidated” by reference to it. He was not, however, allowed the opportunity to do so. [10] In the nature of QCAT‟s Minor Civil Disputes jurisdiction, in which parties are usually self represented and also, usually, inexperienced in the law and legal matters, some imprecision in claims and supporting documents, and the evidence of the parties to these disputes, is common. It is part of the burden of the jurisdiction that QCAT‟s members and adjudicators are often called upon to explore, usually by questioning the parties, the precise nature of their claims and embark, themselves, upon investigations which will reveal whether or not they lie within or outside the Tribunal‟s jurisdiction in this area. [11] It is apparent from the material filed by Mr Bannink with his original MCD application, and the transcript, that he was denied the opportunity to outline his case to the learned Magistrate; to identify the contract which, he says, founded his claim; or, to explain how the total amount claimed might be shown to be referable to some formula or calculation under the contact. [12] The modern expression “procedural fairness” is now used to reflect and embody historical principles of natural justice. It conveys the notion of a flexible obligation to adopt fair procedures which are appropriate, and adapted to the circumstances of, the particular case. [13] In the nature of the minor civil dispute jurisdiction with its heavy volume of matters, the conduct of Tribunal members and adjudicators (and Magistrates sitting as members) will not be minutely examined or criticised. The learned Magistrate here was, I am sure, working under the heavy burden of the workload within the jurisdiction but, in this instance failed, with respect, to observe a fundamental principle of natural justice: providing a party with the opportunity to state their case3. 1 Queensland Civil and Administrative Tribunal Act 2009, s 11. 2 Spain v Union Steamship Co of New Zealand LPD (1923) 32 CLR 138 at 142. 3 University of Ceylon v Fernando [1960] 1 WLR 223, at 232, Privy Council. -- 3 of 4 -- 4 [14] It is not at all clear, again with respect, from the papers filed with this application by Mr Bannink that he could never prove the existence of a contract with Solar Energy, or that an amount that was capable of being ascertained and therefore “liquidated” could not be established by him as a proper basis of his claim. It may be that, in truth, he is unable to do those things but the particular problem here is that he was never allowed the opportunity to do so. [15] Denial of procedural fairness is an error of law which deprives a tribunal of jurisdiction and renders its decision void4. [16] Leave to appeal is necessary5 but leave will ordinarily be granted where there is a reasonably arguable case of error in the primary decision and reasonable prospect that the applicant would obtain further substandard relief. The question commonly asked is whether leave is necessary to correct a substantial injustice to the applicant, caused by some error6. [17] For the reasons set out earlier, it appears Mr Bannink was denied the opportunity to present his case and to properly address the learned Magistrate and be heard on the question of whether or not he could establish a claim which came within the Tribunal‟s jurisdiction. Leave must, therefore, be granted. [18] The Appeal Tribunal is then required to decide the appeal itself. Again, for the reasons identified above, it is properly dealt with as an appeal on the question of law only. The Appeal Tribunal may confirm or amend the decision, set it aside and substitute its own, or set it aside and return the proceeding to the Tribunal for reconsideration7. [19] In light of what occurred here, the proper course is to remit the matter to the Tribunal for rehearing. [20] That said, the learned Magistrate was good enough to suggest to Mr Bannink, in light of the conclusion that his claim did not fall within QCAT‟s jurisdiction, that he could bring a claim in the Magistrates Court jurisdiction. If Mr Bannink, on reflection, concludes that he may have difficulty establishing that his claim is one that can be properly categorised as a “liquidated demand for money” he may be well advised, with respect, to take the course suggested by the learned Magistrate. 4 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Ridge v Baldwyn [1964] AC 40. 5 Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(a)(i). 6 QUYD Pty Ltd v Marvass Pty Ltd (2009) 1 Qd R 41. 7 Queensland Civil and Administrative Tribunal Act 2009, s 146. -- 4 of 4 --