Collins v Percival [2011] QCATA 245

CITATION: Collins v Percival [2011] QCATA 245 PARTIES: Mr Andrew Collins (Applicant/Appellant) v Mr Russell Frank Percival (Respondent) APPLICATION NUMBER: APL249-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member DELIVERED ON: 13 September 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The application is remitted to the minor civil dispute jurisdiction for rehearing. CATCHWORDS: Minor Civil Dispute – denial of procedural fairness Queensland Civil and Administrative Tribunal Act 2009 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). REASONS FOR DECISION [1] On 21 October 2009 Mr Percival’s motorcycle collided with Mr Collins’ utility at Surf Parade, Broadbeach. As a consequence of that, Mr Percival commenced a proceeding in the minor civil disputes jurisdiction of the Tribunal claiming recovery of $7,390.00 being the cost of repairs to his motorcycle. -- 1 of 3 -- 2 [2] Whilst the proceeding was progressing to a hearing, an application was made for the parties to give evidence by telephone. This also applied to Mr Collins’ witnesses. There are directions to that effect on the file on 17 September 2010. There is also information on the file about how the telephone contact was to be arranged with Mr Collins being overseas at the time of the hearing. [3] Eventually the application came on for hearing on 12 January 2011 with Mr Collins giving his evidence by telephone. Unfortunately the connection broke and the application had to be adjourned again. [4] It was then listed for hearing on 31 January 2011. Mr Percival gave evidence by phone, in accordance with the earlier directions, but there was no telephone attendance by Mr Collins. He was not contacted by the Tribunal and the hearing proceeded in his absence. Interestingly there is a note on the file dated 21 January 2011 which informs “he’ll be in Indonesia and his wanting to know what number to call on”. [5] In Mr Collins’ absence the Tribunal ordered that he pay to Mr Percival $7,311.36. [6] From that decision Mr Collins has appealed. The grounds of appeal are that he was denied an opportunity to either raise or respond to issues or allegations in the hearing and secondly, was contrary to the Tribunals own order consenting to his participation by telephone. [7] Particulars of the breach of procedural fairness are that QCAT:- a) Had contacted the appellant by telephone during previous part-hearings; b) Was aware of the appellant’s contact details, which were contained on a facsimile forwarded to QCAT on 5 August 2010; c) Consented to the appellant participating at the rescheduled hearing on 31 January 2011 by telephone; d) Failed to contact the appellant by telephone at the start of the rescheduled hearing on 31 January 2011; e) Thereafter conducted the hearing without the appellant’s participation on 31 January 2011. [8] The submission from Mr Collins’ solicitors then goes on to deal with the substantive issues in the minor civil dispute. [9] It is worth noting that even Mr Percival expected Mr Collins to be on the telephone or be contacted by QCAT. [10] Having regard to the history of this matter, there can be little doubt that Mr Collins was denied procedural fairness. The Tribunal had his contact details and steps should have been taken to contact him at the time of the hearing. No such steps were taken. -- 2 of 3 -- 3 [11] As is this an appeal from a minor civil dispute decision, leave of the Appeal Tribunal is necessary. Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error? [12] Clearly, it seems that there is a substantial injustice to the applicant in the circumstances of this case and leave to appeal should be granted and the appeal allowed. [13] Therefore, the decision of the Tribunal is that the decision of the Tribunal is set aside and the matter be remitted for rehearing. -- 3 of 3 --