Bundy Country Bobcats v Tandoro Pty Ltd [2011] QCATA 105

CITATION: Bundy Country Bobcats v Tandoro Pty Ltd [2011] QCATA 105 PARTIES: Bundy Country Bobcats (Applicant/Appellant) v Tandoro Pty Ltd (Respondent) APPLICATION NUMBER: APL114-10 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President DELIVERED ON: 21 April 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. Application for leave to appeal allowed. 2. Appeal allowed. 3. Set aside the decision of 1 June 2010 and order that the matter be returned to the Tribunal for re- hearing. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where Tandoro Pty Ltd was a business conducting mechanical repairs in Bundaberg – where Bundy Country Bobcats took a truck into Tandoro Pty Ltd for repair – where the Magistrate at first instance ordered that Bundy Country Bobcats pay Tandoro Pty Ltd for repairs made to the truck – where Tandoro Pty Ltd was represented at the hearing without leave – where the representative played an important role in the proceedings – whether the fact that Tandoro Pty Ltd was represented gave rise to substantial injustice or a denial of procedural fairness – whether leave to appeal should be granted -- 1 of 4 -- 2 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 the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] Bundy Country Bobcats is a business trading name used by Mr and Mrs Shorthouse. Tandoro Pty Ltd has a business conducting mechanical repairs in Bundaberg through its directors and secretary, Mr and Mrs Brunjes. On Christmas Eve, 2008, Mr Shorthouse brought a truck into Tandoro’s workshop for Mr Brunjes to look at some problems with, in particular, the operation of its clutch. [2] While the truck was still in for repairs, its axle broke. This was said, on Mr Brunjes’ side, to be the product of a defect in the axle, but Mr Shorthouse claimed it was because Mr Brunjes incompetently started the vehicle without ensuring there was air pressure to the brakes, thereby causing the axle to snap under pressure. [3] That was the central issue in the dispute in QCAT’s Minor Civil Disputes jurisdiction which came on for hearing before a Magistrate, sitting as a QCAT Member, at Bundaberg on 1 June 2010. Tandoro Pty Ltd claimed that Mr Shorthouse’s firm owed it $3,792.43 for the repair costs but then later alleged the true value of the work was slightly less than $1,000.00; and, that the firm had lost over $6,000.00 because of Mr Brunjes’ error. [4] The learned Magistrate decided that what Mr Brunjes did ‘wasn’t unreasonable’ and ordered that Bundy Country Bobcats pay Tandoro’s claim in full. [5] Bundy Country Bobcats seeks leave to appeal that decision. Leave is necessary because the learned Magistrate was sitting in QCAT’s Minor Civil Disputes jurisdiction: QCAT Act, s 142(3)(a)(i). By order of the Appeal Tribunal the application for leave to appeal (and the appeal if leave is granted) are to be determined on the papers. The parties filed and exchanged submissions in accordance with those directions. [6] Mr Shorthouse’s submissions for Bundy Country Bobcats rely on two principal grounds: first, that Tandoro Pty Ltd was wrongfully represented at the hearing by Mr Dennis Isles who claimed to be an office bearer in Tandoro Pty Ltd, or a partner, when (according to a company search presented by Mr Shorthouse) that was not true; and, because the Magistrate’s conclusion about the cause of the break in the axle was against the weight of the evidence, including new evidence which Mr Shorthouse now wishes to present. [7] The transcript shows that when the matter began Mr Isles announced himself as appearing for Tandoro Pty Ltd and, in response to several questions from the learned Magistrate, said: that he was a ‘partner’; that -- 2 of 4 -- 3 he was ‘one of the directors’; and that, in the past, Mr Brunjes had worked for him. [8] In Tandoro’s submissions, signed by Mr and Mrs Brunjes, it is said that Mr Isles is a ‘financial advisor and consultant’ to the business, and a qualified diesel mechanic with 45 years experience who ‘…assisted with the explanation of the technicalities of the issues’. He is not claimed to be a director of (or to hold any other office in) Tandoro, or to be in partnership with the company, or Mr and Mrs Brunjes. [9] In proceedings of this kind parties are ordinarily expected to represent themselves: QCAT Act, s 43(1). A party to a proceeding may only be represented by someone else if the Tribunal has given leave. Under s 43(4) a party who is not an Australian legal practitioner cannot represent a party ‘… unless the tribunal is satisfied the person is an appropriate person to represent the party’. Under s 43(5) a person who is not an Australian legal practitioner, who seeks to represent a corporation, must give the Tribunal a certificate of authority from the party. [10] On the face of the transcript none of these things happened: in particular, although the learned Magistrate made enquiries about Mr Isles’ role, no grant of leave was made allowing him to represent Tandoro. [11] It is also clear from the transcript that Mr Isles played an important part in the proceedings. He answered a number of the Member’s questions about mechanical issues. He questioned Mr Brunjes in chief, and he cross examined Mr Shorthouse. Importantly, I think, on a number of occasions he made direct submissions to the Magistrate about aspects of the evidence. [12] It is impossible to avoid the conclusion, from a reading of the transcript, that Mr Isles’ involvement may have affected the outcome of the case. On any view, he was an important actor. [13] In fact, as Tandoro’s own submissions in this appeal concede, he was neither a director nor a secretary nor an office bearer of Tandoro Pty Ltd and his actual position, in relation to the company, is unclear. His answers to the Magistrate’s questions about his position were either untruthful, or careless, or reckless and misleading. [14] Either the learned Magistrate was misled, or the wrong answers he was given meant that he did not properly consider the question arising under s 43; or, he overlooked addressing that question. In light of the answers given to him by Mr Isles, the former is the more likely explanation. Once that conclusion is reached it is apparent that no fault lies in the course the learned Magistrate took, but the case is one in which the successful party was represented by someone who should not have appeared on its behalf, or who could only have done so if leave had been granted. [15] Mr Isles’ involvement may well have affected the outcome of the proceedings; it then becomes inescapable that the circumstances surrounding his representation of Tandoro may have given rise to a substantial injustice. -- 3 of 4 -- 4 [16] It is also inescapable that his involvement has tainted the proceedings in a way that gives rise to a real concern that the Shorthouses were denied procedural fairness, according to the test outlined by Mason J (as his Honour then was) in Kiao v West (1985) 159 CLR 550 at 584-585. [17] Once this factual and legal situation is appreciated, leave to appeal must be granted to correct the potential for substantial injustice to Mr and Mrs Shorthouse. [18] The appeal should also succeed. While the Shorthouses’ attempt to introduce further evidence at this late stage is not without its own problems, the appeal should be allowed solely because of the problems surrounding Mr Isles’ appearance. [19] Under s 146 of the QCAT Act the Appeal Tribunal, in deciding an appeal on a question of law, has a number of different courses open to it. Here, because the central issue was a factual dispute about the cause of some problems with the Shorthouses’ truck, and because that question should have been decided without Mr Isle’s direct involvement (or, if allowed, only with leave), the matter should be returned to the Tribunal for re- hearing. [20] Very recently Mr and Mrs Shorthouse filed an application to stay the learned Magistrate’s decision. In light of the fact that the decision has now been set aside on appeal it is unnecessary to deal with that application. -- 4 of 4 --