Discount 4X4 Pty Ltd v Purua [2012] QCATA 46

CITATION: Discount 4X4 Pty Ltd v Purua [2012] QCATA 46 PARTIES: Discount 4X4 Pty Ltd (Applicant/Appellant) v Martha Joyce Whahine Purua (Respondent) APPLICATION NUMBER: APL379-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member DELIVERED ON: 5 March 2012 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal refused. CATCHWORDS: Minor Civil Dispute – where applicant did not attend the hearing – whether denial of procedural fairness – where applicant failed to comply with directions – where Tribunal considered the application on its merits Queensland Civil and Administrative Tribunal Act 2009, ss 48, 93, 142(3) QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Cachia v Grech [2009] NSWCA 232 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69 AON Risk Services Australia Ltd v Australian National University [2009] 239 CLR 175 APPEARANCES and REPRESENTATION (if any): -- 1 of 5 -- 2 This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] Mrs Purua purchased a 2004 Ford Explorer from Discount 4X4 on 27 October 2010. She paid $20,990 for the vehicle. [2] From the very beginning, she had problems with the vehicle and took it back to the dealer for repairs. Repairs were undertaken but faults continued to appear which not only included the engine but also the transmission. Because of these ongoing problems, she sought a refund of her money and a return of the vehicle to the dealer. The dealer refused. [3] Ms Purua then filed an application for a minor civil dispute in the Tribunal at the Wynnum Magistrates Court in which she claimed a refund of $21,926 and also an additional payment of money to her of $2,818. In Part C of the application she sets out some of the history of her problems with the vehicle and the basis for her claim for a refund. The Tribunal has jurisdiction to make an order for the return of goods.1 [4] The dealer did not file a response to the minor civil dispute but despite that, the proceeding did go to a mediation in late August 2011. [5] The application was listed for hearing on 8 September 2011 and some three days prior to the hearing the dealer, in a letter from Ms Powell, sought an adjournment because Discount 4x4 was waiting for documents to come from the Office of Fair Trading concerning a complaint Ms Purua made subsequent to the purchase of the vehicle. [6] In any event, on the basis of that request the proceeding was adjourned on 8 September with the following orders: 1. The respondent is to provide to the applicant and the Wynnum Court Registry a detailed written Response to the claim by 20 September 2011. 2. The application is listed for hearing on 22 September 2011. [7] Discount 4X4 did not comply with direction and two days before the hearing was to proceed, Ms Powell again wrote to the Wynnum Court Registry saying she was waiting on documents from the Office of Fair Trading, she did not have a copy of the claim and the requested a further adjournment. She took the liberty of asking “the Adjudicator to waive my appearance at the hearing date set for Thursday, 22 September at 11am while granting a reasonable extension to gather the evidence required for my defence at a new hearing date.” The Registry did not get back to Ms Powell and she did not attend the hearing at the appointed time. No Response was filed. 1 Definition of minor civil dispute, section 1(b)(iv). -- 2 of 5 -- 3 [8] As the learned Adjudicator pointed out in the transcript of the hearing, which I will return to later, the gathering of evidence to support a defence particularly from a third party, is not a sufficient reason not to file a Response to the application and address those matters raised by the applicant in Part C by way of defence. [9] The hearing proceeded and the learned Adjudicator immediately satisfied himself that Discount 4X4 had been served with a copy of the application by questioning Ms Purua. Clearly it was aware of the proceeding and the hearing date. Upon being satisfied that service was affected, he then took Ms Purua through the history of ownership of the vehicle, the various repairs that have been undertaken, and the ongoing problems with it. Quotes for repair were produced and ultimately he satisfied himself that the vehicle as purchased was not as represented, nor was it fit for the purpose. He was careful to put to Ms Purua questions that he would have expected Discount 4X4 to ask and effectively he considered any defence they might raise. In particular, he took into account the fact that the vehicle was outside the one month warranty, having regard to its age and mileage, which meant that it would not fall within Class A warranty. [10] On taking all of these matters into account the learned Adjudicator made a decision that Ms Purua was entitled to the cost of repairing the vehicle at a total cost of $13,760.75. He had evidence before him as to the cost of the repairs. He rejected her claim for a refund and return of the vehicle. [11] Not only did he proceed to hear and determine the matter on the evidence, as well as attempting to safeguard the rights of Discount 4X4, he also found that by ignoring the directions made on 8 September 2011 directing Discount 4X4 to file a Response was causing a disadvantage to Ms Purua and referred to and relied on section 48 of the QCAT Act when deciding the matter. [12] On becoming aware of the decision, Discount 4X4 filed an application for leave to appeal or appeal on 18 October 2011. The ground of appeal relied on is that it has been denied procedural fairness because the Wynnum Court Registry did not respond to its request for an adjournment on 20 September 2011. It heard nothing further from the Registry until it was advised of the decision made against it. [13] It also contends that the respondent to the minor civil dispute is not the correct respondent because the proceeding was brought against Steve Sparrow trading as Discount 4X4 Pty Ltd. [14] The decision in the minor civil dispute proceeding which is the enforceable decision is against the company and not Mr Sparrow trading as Discount 4X4 Pty Ltd. This is obviously correct, the contract is between Ms Purua with Discount 4X4 Pty Ltd, that is the proper respondent to the proceeding and against which any judgment can be enforced. -- 3 of 5 -- 4 [15] To this extent, the decision should be corrected to delete a Steve Sparrow. [16] As this is an appeal from the minor civil dispute leave to appeal is necessary.2 The question whether or not leave to appeal should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?3 Is there a reasonable prospect that the applicant will obtain substantive relief?4 Is leave necessary to correct a substantial injustice to the applicant caused by some error?5 Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?6 [17] One is always concerned when allegations of denial of natural justice are raised and therefore it is necessary to carefully look at the procedures that were adopted by the Tribunal in coming to the decision that it did. The learned Adjudicator considered carefully the request for the adjournment and the basis for that request. The gathering of evidence from the Office of Fair Trading may or may not have been of assistance to Discount 4X4 but its first obligation under the QCAT Act and the Rules is to respond to the applicant’s application. If it failed to file a Response, Ms Purua was entitled to apply for a decision by default and the learned Adjudicator, on the first hearing date, could have entered a default decision. However, to give Discount 4X4 the benefit of the doubt further time, considerable time, was given to it to file a Response so both Mr Purua and the Tribunal would have some notice of the basis upon which it proposed to defend the application. It did not do so and sought a further adjournment. [18] This was compounded by the fact that Ms Powell, who was aware of the hearing date, simply chose to leave it with the Registry to contact her rather than for her to follow up with the Registry when she did not receive any response to her letter. At the very least she should have attended the hearing on the day at the appointed time. If she still wanted an adjournment she could have made a further request to adjourn the application at that time. [19] The QCAT Act imposes statutory obligations on Tribunal Members to conduct proceedings in a way that is fair, economical and quick. In addition, the statutory regime places obligations on parties themselves to take care in their dealings with Tribunal matters and to act in their own best interests.7 This has also been recognised by the High Court in that 2 QCAT Act, section 142(3). 3 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 4 Cachia v Grech [2009] NSWCA 232 at 2. 5 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 6 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580; QCAT Act, s 3. 7 Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69. -- 4 of 5 -- 5 this Tribunal’s resources for the resolution of disputes serve “the public as a whole, not merely the parties to the proceedings.”8 [20] The Tribunal was entitled to expect Discount 4X4 to act in its own interests. By not complying with the Tribunal’s directions to file the Response and not attending the hearing at the appointed time, the learned Adjudicator was entitled to proceed in its absence and hear and determine the proceeding on its merits.9 [21] In these circumstances, it cannot be said that there has been a denial of natural justice which would warrant a grant of leave to appeal. [22] Finally, having been satisfied that there has not been a denial of procedural fairness, I should also say that the learned Adjudicator’s decision was clearly open on the evidence before him and there is no justification for interference by this Appeal Tribunal. 8 AON Risk Services Australia Ltd v Australian National University [2009] 239 CLR 175 at 217. 9 QCAT Act, s 93. -- 5 of 5 --