Edwards v Laraby Pty Ltd t/a Cruising Car Rental (No 2) [2010] QCATA 30

CITATION: Edwards v Laraby Pty Ltd t/a Cruising Car Rental (No 2) [2010] QCATA 30 PARTIES: Michael Edwards (Applicant) v Laraby Pty Ltd t/a Cruising Car Rental (Respondent) APPLICATION NUMBER: APL035-10 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: President DELIVERED ON: 19 July 2010 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal granted. 2. Refuse the appeal. CATCHWORDS : MINOR CIVIL DISPUTE – DEBT– where applicant hired vehicle – where applicant in arrears – where dispute in amount owed – where applicant did not substantiate his claim – whether appeal should be allowed PROCEDURAL FAIRNESS – RECORDING OF PROCEEDINGS – REASONS – where the proceedings not recorded – where no written reasons were provided – whether denial of natural justice – whether decision should be set aside and matter reheard Queensland Civil and Administrative Tribunal Act 2009, ss 3, 4, 28, 121, 122, 123, 146 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 -- 1 of 5 -- 2 REASONS FOR DECISION [1] Mr Edwards seeks leave to appeal a decision of a magistrate, acting as a QCAT adjudicator, after a hearing at Cairns on 11 January 2010. Because the matter was a minor civil dispute under the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), leave is necessary: s 142(3)(a)(i). [2] In the original proceeding Laraby Pty Ltd sued Mr Edwards for what it said were outstanding hire charges he owed for a motor vehicle rented from Laraby on 17 March 2009. Laraby alleged that he failed to return the vehicle or maintain the rental payments of $39 per day ($273 per week) during a rental period extending over some months. [3] The evidence showed that Mr Edwards initially signed a rental agreement on 17 March 2009 for one week, to be extended as the parties agreed. A number of email exchanges confirmed extensions but, commencing in mid-June 2009, also show that Laraby asked Mr Edwards to return the vehicle, and to pay what it alleged were arrears for rental charges. Eventually, on 18 August 2009, police seized the vehicle from Mr Edwards. [4] On 25 March 2010, this Appeal Tribunal determined that Mr Edward’s application for leave to appeal, and his appeal, if leave was granted, would be determined by written submissions from the parties according to a timetable. The parties have filed and exchanged submissions. [5] An unexpected, and it is to be hoped, unusual difficulty arises in the matter. Through some error the proceedings before the learned magistrate (acting as a QCAT adjudicator) were not recorded. In particular, there is no recording of the learned magistrate’s reasons for his decision. [6] Under s 121 of the QCAT, Act the Tribunal must give reasons for its final decision in a proceeding either orally, or in writing (s 121(4)). If the Tribunal makes a final decision but does not give written reasons any party may, within 14 days after the decision takes effect, request written reasons. The Tribunal must comply with that request within 45 days. Under s 123 it is sufficient, however, for the Tribunal to satisfy the request by giving a party a written transcript or an audio recording of the part of the proceeding in which the decision or reasons are given orally. [7] The learned magistrate has advised that he is unable to provide written reasons because the proceedings were not recorded and, although he gave verbal reasons for his decision, he has no clear recollection of them and cannot, now, provide written reasons. The regrettable but inevitable conclusion is that the Tribunal is unable to satisfy the requirements of ss 121, or 123. -- 2 of 5 -- 3 [8] On 11 January 2009, Mr Edwards requested a copy of the transcript from Cairns Magistrates Court. On 12 January 2010 he wrote to the Court requesting a copy of the magistrate’s ‘order’ and, also, requesting a CD of the proceedings themselves. Although neither request was couched in terms specifically referable to s 122, they must, in fairness, be categorised as a request for written reasons under that provision which also cannot be satisfied. [9] Ordinarily, an applicant for leave to appeal must show a prima facie case of error in the primary decision, and that there is a question of importance upon which further argument and a decision of the appeal court would be to the public advantage1 . As Dr J R S Forbes has observed 2 , there is a strong case for treating reasons as an incident of natural justice; and: ‘a failure to give reasons adds insult to the injury of an adverse decision. Without reasons, how can a party be confident that the case was understood and properly considered?’ [10] While the parties appear to agree that the learned magistrate spoke some reasons, the absence of any operating recording device (which seems, to be fair, to have been unknown to the learned magistrate) means the Tribunal is unable to provide its reasons in the specific form(s) mandated by its guiding legislation – i.e., either in writing, or by providing an audio recording. [11] Section 121 contains passages making it tolerably clear that the requirement to give a final decision in writing, and reasons for that final decision either orally or in writing, is an exercise intended, at least in part, to ensure that appeals may be conducted in an orderly fashion. For example, s 121(2) provides that the Tribunal must also give each party a written notice explaining the appeal process under Chapter 2, Part 8 of the QCAT Act; and, in particular, s 121(2)(c) provides that if the final decision does not include the Tribunal’s reasons, the party must be informed that it may request those reasons under s 122. [12] It is inescapable that these provisions place a statutory gloss on the principle to which Dr Forbes refers. It is also inescapable, I think, that in light of the additional burden placed upon the Tribunal by these statutory requirements, the failure to comply with them here must be categorised as a denial of natural justice. [13] While the proceedings themselves do not involve complex questions of fact or law, a combination of the Tribunal’s inability to meet its own statutory guidelines and, separately, the implicit denial of natural justice arising from the absence of reasons means the consequences involve a question of importance of the kind warranting leave to appeal. 1 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. 2 Justice in Tribunals (3 rd Ed) (The Federation Press, Sydney, 2010) at p 249, para 13.2. -- 3 of 5 -- 4 [14] As to the appeal itself, the QCAT Act distinguishes between appeals against a decision on the question of law only, and those on questions of fact, or mixed law and fact: ss 142, 146 and 147. For the reasons already explored the Tribunal’s inability to provide reasons involves, here, both an apparent denial of natural justice and a breach of the legislation governing tribunal procedure – on any view, under both heads, an error of law. [15] In deciding an appeal on a question of that kind, the Appeal Tribunal may confirm or amend the decision, or set it aside and substitute its own, or set it aside and return it to the Tribunal for reconsideration 3 . [16] Mr Edwards’ submissions are comprised of about 200 pages, but may be summarised as assertions that Laraby Pty Ltd was trading unlawfully under an unregistered business name, so the vehicle rental agreement was void and unenforceable; that the contract itself had been tampered with by one of Laraby’s employees; and, that it was ‘open ended’. [17] There is nothing in the first point. The vehicle rental agreement carries a business name but is, on its face, a tax invoice from Laraby Pty Ltd. The agreement was varied from time to time but, as Mr Edwards’ own extensive material shows, those changes usually occurred as a consequence of emails between him and Laraby about extensions to the hire period to which it periodically agreed until, as the emails show, it lost patience as arrears grew. [18] Mr Edwards also alleges the vehicle had some defects but there is no evidence that he ever sought to return it for the purposes of repair. [19] The inescapable conclusion arising from all the evidence is that Mr Edwards failed to maintain hire payments, which fell into arrears. Payment of hire charges is an essential condition of the contract and, when arrears arose, the hirer was entitled to request the return of the vehicle and, as is also uncontroversial, only achieved return with the aid of the police. Nothing in the evidence suggests any possibility of error on the part of the learned Magistrate about his decision to find for the hirer, or to reject Mr Edward’s spurious, pseudo-legal arguments. [20] In truth, the only dispute which may have affected the outcome arising on the material is the claim by Laraby, on the one hand, that when the vehicle was eventually returned the arrears were $3,798, and Mr Edwards’ calculation that the correct figure was $2,563. It follows that the only residual uncertainty caused by the absence of a transcript or written reasons is the learned Magistrate’s manner of calculating the sum he awarded to Laraby, $3000. 3 QCAT Act, s 146 -- 4 of 5 -- 5 [21] QCAT is obliged, under its governing legislation, to deal with matters in a way that is fair, just, economical, informal and quick: QCAT Act, s 3 (b). It must encourage the early and economical resolution of disputes, and ensure that proceedings are conducted in an informal way that minimises costs to parties: ss 4 (b), (c). Under s 28, it must conduct proceedings in a way which reflects the substantial merits of the case, and with as little formality and technicality and as much speed as the legislation, and a proper consideration of matters before it, permit. [22] On any view, Mr Edwards was indebted to the car hire company. He had no valid defence to its claim for arrears. The only issue before the QCAT adjudicator was, then, the amount of those arrears. Laraby’s evidence substantiated a figure about 30/% higher than the judgment it ultimately received, while Mr Edward’s claims, which are not supported by any documents amongst the large bundle of material he submitted in support of his appeal, are for a sum about 25% less than the eventual judgment sum. [23] To order, in those circumstances, that the matter must be returned to the tribunal for re-hearing would be inimical to the aims and purposes of the QCAT Act, and the costs and delay involved would be quite disproportionate to the issues, and the sums, arising in the matter. [24] This appeal tribunal has, under s 146, a wide discretion. When, as here, there is no basis for concluding that the outcome was not substantially fair and just, the compelling conclusion is that the decision below should be affirmed, and the appeal refused. -- 5 of 5 --