Datatronics (Aust) Pty Ltd v Southport Small Claims Tribunal & Herlihy & Anor [1995] QSC 179

~i, State Reporting Bureau ~-s-~:i.o Sc Cf'5' /11 1 TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) / · SUPREME COURT OF QUEENSLAND ( CIVIL JURISDICTION HELMAN J Application No 481 of 1994 DATATRONICS (AUST) PTY LTD (ACN 059 564 055) and THE SOUTHPORT SMALL CLAIMS TRIBUNAL AT SOUTHPORT and JAMES HERLIHY and RICHARD JAMES THOMPSON BRISBANE .. DATE 26/05/95 JUDGMENT 1 I REVISED CCP!ES iS2UED i State Repcrting Bureau IDateJo / 6 / 1_j Applicant First Respondents Second Respondent 4th Floor, 'fhe l,:,nv Courts, Gt•orge Street, llrisb:me, Q. 4000 Tt'lt•phone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 5 -- 260595 (Helman J) i • HIS HONOUR: This application arises from an order of the Small Claims Tribunal at Southport made on July 11, 1994. On that day the referee heard a claim by the second respondent against the applicant and ordered that the applicant pay $3,358 to the second respondent within seven days. The applicant now applies to this Court for a prerogative order of certiorari in respect of that decision. The applicant's chief complaint about the proceedings in the Small Claims Tribunal is that section 32 (3) of the Small Claims 10 Tribunals Act 1973 as amended was not complied with and an 20 (l agent with a legal qualification, Mr Mark Owen David Preston, a Victorian solicitor, was permitted to appear for the second () respondent at the hearing in th_e absence of the agreement of the applicant. Mr Matthews for the applicant argued that that alleged procedural error resulted in a denial of natural justice to the applicant. Section 18(1) of the Small Claims Tribunals Act provides that the proceedings of the tribunals are final and section 1 9 provides for irnrnuni ty from judicial supervision, except in cases of absence of jurisdiction and of the denial of natural justice to any party to a proceeding: "Proceedings of tribunals final 30 40 1 8. ( 1 ) Subject to subsection ( 2) , a settlement or an order made by a small claims tribunal shall be final and 50 binding on all parties to the proceeding in which the settlement or order is. made and on all persons who under this Act could have become entitled to be joined as a party to the proceeding in which the settlement or order is made, and no appeal shall lie in respect thereof. 60 2 JUDGMENT C) -- 2 of 5 -- - '260595 (Helman J) Immunity from judicial supervision 19. No writ of certiorari, or prohibition, or other prerogative writ shall issue, and no declaratory judgment shall be given in respect of a proceeding taken or to be ·taken by or before a small claims tribunal or in respect of any order made therein save where the court before which such writ or judgment is sought is satisfied that the tribunal had or has no jurisdiction conferred by this Act to take the proceeding or that there has occurred 10 therein a denial of natural justice to any party to the proceeding." In an affidavit sworn by Mr Ross William Shinton (the business manager of the applicant, who appeared for the applicant ( before the referee) and filed on behalf of the applicant on 20 July 25, 1994, it is not asserted that Mr Preston formally appeared for the second respondent, but rather that he was ( \ ,( ! \. present throughout the hearing, advised the second respondent from time to time during the hearing, and at the invitation of the referee offered a professional opinion as to a matter 30 before the tribunal. Although it is common ground that Mr Preston was present throughout the hearing, it appears that the referee permitted that, and Mr Preston was present merely for the purpose of 40 being a witness. He was to give evidence of an agreement that he had reached with the applicant on behalf of the second respondent on the matter the subject of the proceedings before the tribunal, but the hearing proceeded informally and his formal evidence was not required. The failure by the referee so to observe the usual practice of requiring a witness to remain outside the hearing room until called upon to give evidence would not, I think, be sufficient to constitute a denial of natural justice in the circumstances of this case given the informality of the proceedings. 3 JUDGMENT 60 -- 3 of 5 -- 260595 (Helman J) Although Mr Shinton asserts that Mr Preston advised the second respondent from time to time during the hearing, that allegation is denied by Mr Preston and the second respondent in affidavits they have sworn and which have been filed in connexion with this matter. I pointed out to Mr Matthews that 10 it would not be possible for me to resolve such conflicts on matters of fact on the papers, and he conceded that that was so. He told me that the applicant was content to have the matter decided on the facts which were not in dispute. There was no application before me by any party to call oral evidence or to require a deponent to present himself for cross-examination. 20 0 There were other matters ref erred to in the evidence which were in dispute, including an allegation that during the presentation of the case for the applicant Mr Shinton was continuously interrupted by the referee, but I shall put the matters in dispute aside and decide this application, as Mr Matthews suggested, on the facts not in dispute. It seems clear enough on the evidence that the referee did ask Mr Preston about a matter in the course of the hearing. What he sought from Mr Preston was clarification concerning a written demand that Mr Preston had made upon the applicant in connexion with the second respondent's claim, but his doing so could not properly be described, in my opinion, as an instance of Mr Preston's appearing for the second respondent. 4 JUDGMENT C) 30 0 40 CJ 50 60 -- 4 of 5 -- /·1 .. ~6059~ (Helman J) My conclusion on the evidence of the matters which are not in dispute before me is that the fact relied on as the basis for the allegation of a denial of natural justice has not been established, and so the application will be dismissed. 5 JUDGMENT 10 20 30 40 50 60 -- 5 of 5 --