Loading...
Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Hashfield v Gold Coast City Council

 

[2020] QCATA 36

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Hashfield v Gold Coast City Council [2020] QCATA 36

PARTIES:

Anthony hashfield

(appellant)

v

gold coast city council

(respondent)

APPLICATION NO/S:

APL049-19

ORIGINATING

APPLICATION NO/S:

MCDO 813/18 (Southport)

MATTER TYPE:

Appeals

DELIVERED ON:

27 March 2020

HEARING DATE:

27 February 2020

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

ORDERS:

  1. Anthony Hashfield’s application made at the appeal hearing for leave to amend the grounds of appeal is refused.
  2. Leave to appeal is granted, but the decision made on 8 January 2019 to dismiss application MCDO813/18 (Southport) for want of jurisdiction, is confirmed.
  1. Anthony Hashfield’s application to put fresh evidence before the Appeal Tribunal is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where an Adjudicator dismissed an application for want of jurisdiction because no part of the claim was to recover a debt or liquidated demand of money – whether the correct test was applied – whether leave to appeal should be given – whether the decision should be confirmed

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – whether the tribunal has jurisdiction to hear that part of an application which appears to be a claim to recover a debt or liquidated demand of money where there is also a substantial part of the claim which is not in its jurisdiction

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 11, Schedule 3

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 43

Alexander v Ajax Insurance Co Ltd [1956] VLR 436

Bonel v Sutton & Anor [2013] QCAT 414

Commissioner of State Revenue v Gundachar ​[2017] QCATA 79

Financial Advisers Australia v Mooney & Anor [2016] QCATA 181

Hartley v Bennette [2014] QCAT 91

Hill v Berghofer [2011] QCATA 34

APPEARANCES &

REPRESENTATION:

Appellant:

Self-represented

Respondent:

Jon-Paul Selfe, solicitor of QBM Lawyers

REASONS FOR DECISION

  1. [1]
    This matter concerns water and sewerage charges paid to the Gold Coast City Council over several years.  Anthony Hashfield, who brought the application for himself but also on behalf of his wife Lisa Ann Hashfield, says that the Council overcharged and has failed to comply with agreements reached to settle the dispute about the overcharge.
  2. [2]
    The matter came before an Adjudicator who dismissed the claim for want of jurisdiction.  The reasoning was that the claim was not between a trader and a consumer, and none of the heads of claim were to recover a debt or liquidated demand of money, these being the two main areas of the tribunal’s ‘minor civil disputes’ jurisdiction.
  3. [3]
    In this appeal however, I have decided that one of the heads of claim before the Adjudicator does appear to be a claim to recover a debt or liquidated demand of money after all.  However, I have decided that the remainder of the heads of claim were not to recover a debt or liquidated demand of money. 
  4. [4]
    The claim is therefore a mixed one.  The question then arises whether it is possible to treat the head of claim to recover a debt or liquidated demand of money separately so that it is justiciable by the tribunal; or whether the whole claim is outside the jurisdiction of the tribunal.  If the former then the application would be remitted back to the tribunal for part of it to be heard; if the latter then the application would remain dismissed for want of jurisdiction.
  5. [5]
    Either way, the result is not a good one for the parties.  They have expended considerable effort to get this far, and in the case of the Gold Coast City Council, incurred legal fees which are probably not recoverable because the matter has been heard in the tribunal’s minor civil disputes jurisdiction.  This is despite the fact that the issues in the case would generally be suited to resolution by the tribunal as a minor civil dispute were it not for the jurisdictional issues.
  6. [6]
    The result is inconsistent with the objects of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) to have the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick,[1] achieved by conducting proceedings in an informal way that minimises costs to the parties, and is as quick as is consistent with achieving justice.[2] 

Grounds of appeal and the appeal hearing

  1. [7]
    One of Mr Hashfield’s main points in this appeal is that the Adjudicator overlooked some of the claims he was making in the application and they were liquidated demands.[3]  Hence the application was dismissed for want of jurisdiction on the wrong basis.  This requires some care to be taken to identify precisely what claims were before the Adjudicator.  I consider this under ‘The heads of claims before the Adjudicator’ below.
  2. [8]
    Mr Hashfield also says in this appeal that the Adjudicator should have found that each of his heads of claim was to recover a debt or a liquidated demand of money.  In the appeal hearing he submitted, as he did before the Adjudicator, that all you need for a claim to be a liquidated demand of money is for the claim to be for a fixed and known amount and capable of proof.  So, he says, the claims of $6,615.84 and $6,056.50 and $9,954.50 are claims of a liquidated demand of money on that basis.  Certainly on one reading of the expression ‘debt or liquidated demand of money’ he would be right about this.  But as we can see below under ‘Was any claim before the Adjudicator within the tribunal’s jurisdiction?’, this is not the meaning of the expression.
  3. [9]
    At the appeal hearing Mr Hashfield applied to amend his grounds of appeal to add that the Adjudicator should have considered whether the tribunal had jurisdiction on the basis that in supplying water and sewerage and in its dealings with him about charges for those services, the Council was a ‘trader’.  This was an attempt to bring the application within the tribunal’s jurisdiction over consumer claims.  However, for reasons given orally in the appeal hearing I refused to give leave for this.
  4. [10]
    There was also a point made on appeal that the Council’s solicitor was allowed to contribute to the hearing without leave, however it can be seen from the transcript that the question of leave was considered early in the hearing before the main issues were discussed, so I need not consider this any further.[4]

The wrong applicant issue

  1. [11]
    The Council submitted in this appeal, as it did before the Adjudicator, that the applicant is the wrong person, because Mr Hashfield was not the ratepayer: Mrs Hashfield was the ratepayer and she was not an applicant.  On that basis it is said that the application must fail.
  2. [12]
    In answer to this, Mr Hashfield says that he is he properly regarded as a ratepayer because of his substantial financial and beneficial interest in the property.[5]  In any case he is attorney for his wife for financial matters under an enduring power of attorney with immediate effect. 
  3. [13]
    At the hearing before the Adjudicator, Mr Hashfield did apply to join his wife to the proceeding, but the Adjudicator, no doubt already having decided that the tribunal had no jurisdiction to hear it, said that it would be ‘futile’ to do so.[6]  Had the Adjudicator decided that the tribunal did have jurisdiction to hear the proceeding it is highly likely Mrs Hashfield would have been added as an applicant.[7]
  4. [14]
    In the circumstances, the point made in this appeal on behalf of the Council about the wrong party falls away.

The heads of claim before the Adjudicator

  1. [15]
    It is a ground of appeal that the Adjudicator overlooked some claims when considering whether any claim was for the recovery of a debt or liquidated demand of money.  So it is important to identify exactly what claims were before the Adjudicator to see if this ground is correct.
  2. [16]
    The heads of claim that Mr Hashfield says were before the Adjudicator are:[8]
    1. (a)
      A claim for $3,398.53 which was interest on overdue amounts, which interest should not have been charged because when a payment plan was agreed in 2014, this amounted to an agreement that such interest would not be charged.
    2. (b)
      A claim for an unspecified amount being interest charged on overdue amounts at an annual rate of 11.4%, or possibly 11.6% or more, when the statutory cap is 11% per annum.
    3. (c)
      A claim for an unspecified amount being an overcharge arising from an error made when giving or calculating water relief (there having been two concealed leaks at the property).  One reason for this was that the Council had the property incorrectly listed as a rental property.  This error, it is said, had been recognised in internal Council documents entitled ‘erred water relief calculations’.
    4. (d)
      A claim for $9,954.50 which should not have been charged because it was waived in a manner binding on the Council.  It is said that on 6 February 2017 the Council cancelled all balances for the past five years (the sum of $9,954.50) and confirmed this by email, but then issued a new bill on the same day for $8,851.21.
    5. (e)
      A claim for $6,615.84 being legal costs incurred by Mr Hashfield in trying to deal with a notice of intention to sell land issued by the Council to enforce the arrears of water and sewerage charges.  It is said that there was no debt or a lesser debt at the time of the notice of intention to sell land, so the notice was wrongful or unlawful.  Hence, it is said this caused Mr Hashfield and his wife to suffer this loss.[9]
    6. (f)
      A claim for $6,056.50 being a charge levied by the Council for its costs of issuing the notice of intention to sell land; this charge was added to the water and sewerage account to be recovered by the enforcement action.  It was paid by the Commonwealth Bank of Australia who were the mortgagees of the property, and CBA added it to Mr and Mrs Hashfield’s loan secured on the land.  Therefore it is said that it was ultimately their loss.
    7. (g)
      There was also a miscellany of non-financial orders sought of different types.
  1. [17]
    Which of these heads of claim were before the Adjudicator?  Mr Hashfield says they all were.  The Council only understood that the claims for $6,615.84 and $6,056.50 and the miscellany of non-financial claims were.  That is, claims (e), (f) and (g).
  2. [18]
    I do not think that claim (a) was before the Adjudicator.  It was not mentioned in Part B of Form 1 as a money claim.  It was mentioned in the documents attached to Form 1,[10] but it was said that the amount was one of several which ‘should be noted as potential key enablers to suspend interest charges or place an account on hold’.  It was not clear that a claim for repayment of that amount was being made at all.  
  3. [19]
    I do not think that claims (b) and (c) were before the Adjudicator.  They were not mentioned in Part B of Form 1 as money claims either.
  4. [20]
    Claims (a), (b) and (c) appeared to be before the tribunal only as showing that there had been an overcharge, and therefore that the notice of intention to sell land was wrongfully or unlawfully issued.  They served only to support the claims for $6,615.84 and $6,056.50.
  5. [21]
    I do not think that claim (d) was before the Adjudicator.  This claim for $9,954.50 had some prominence at the appeal hearing but it does not appear anywhere in the Form 1 application and it is not said in the attached documents to be a money claim.  Instead, it was said that repayment of the money would be a consequence of the tribunal enforcing the undertaking given by the Council’s solicitor in favour of the ratepayer.[11] 
  6. [22]
    When running through the claims when giving reasons for the decision, the Adjudicator referred to Mr Hashfield’s application for the tribunal to enforce the solicitor’s undertaking but it was clear that the Adjudicator did not think that Mr Hashfield was claiming repayment of the $9,954.50.  And this was not clear to the Council either.  Although the Council could not file a response to the claim because this is not permitted by the QCAT Rules,[12] it did file submissions saying that the tribunal had no jurisdiction to deal with the matter and the wrong party was applicant and so the application should be dismissed.[13]  In those submissions the Council listed the heads of claim but the claim for $9,954.50 was not one of them. 
  7. [23]
    It is also to be noted that the fee on the application levied by the Southport Registry was $120.50, which suited claims up to $10,000.  Bearing in mind Mr Hashfield listed two claims on Form 1, one for $6,615.84 and one for $6,056.50 totalling $12,672.34, this was an undercharge because at the time the filing fee for claims above $10,000 was $338.20 (the fee for claims up to $10,000 was $120.50).[14]  Had Mr Hashfield claimed $9,954.50 as well as the other amounts it seems very likely the full fee would have been charged. 
  8. [24]
    It is clear from all the above, that Mr Hashfield did not claim the $9,954.50 when he made the application on Form 1 on 8 November 2018.
  9. [25]
    Mr Hashfield did try to claim the $9,954.50 in subsequent submissions,[15] but then seemed to retract this.[16]  The difficulty is that applicants cannot bring claims in submissions.[17]  The only other way in which the claim of the $9,954.50 could have been made in submissions is if the tribunal allowed an amendment of the original claim.  But this did not happen.
  10. [26]
    The Adjudicator was clearly right to regard a claim for payment of $9,954.50, that is claim (d), as not before the tribunal.
  11. [27]
    Claim (g) was a miscellany of other applications made in Parts C and D of the Form 1 application.  These were before the Adjudicator.  Examples are an application for an order that the Council agree to defer a rates charge under section 125 of the Local Government Regulation 2012 (Qld),[18] an order that the Council conduct a mediation with the ratepayer,[19] an order that the Council conduct an ‘audit’ or ‘recalculation’ of the charges levied (which apparently would result in a repayment appearing to be due),[20] ‘validation/standing of the Council’s solicitors undertaking/promise given to the ratepayer’,[21] an order that the Council ‘conducts an independent meter test or supply a new meter by January 1st 2018’,[22] and ‘any orders to limit the stress, pain and suffering to the rate payer by way of the Council action former actions’.[23] 
  12. [28]
    As the Adjudicator said, the tribunal could not have ordered any of these things at a final hearing.  The types of order that can be made in minor civil disputes is constrained by section 13 of the QCAT Act and they are limited to an order for payment of money, relief from payment of money, rectification work or return of goods.
  13. [29]
    The only claims before the tribunal therefore were the claims for $6,615.84 and $6,056.50 and the other claims made in Part C of Form 1 asking for a miscellany of different orders, that is, claims (e), (f) and (g).

The Adjudicator’s decision on the claims before the tribunal

  1. [30]
    As can be seen from the above description of events, on the day of the hearing the Adjudicator was faced with having to deal with a multi-faceted claim, where a number of orders were sought which clearly the tribunal was unable to make.
  2. [31]
    Bearing in mind the nature of the claim, it was inevitable that the Adjudicator concentrated on whether the tribunal had jurisdiction to deal with any of the claims made. 
  3. [32]
    At the hearing before the Adjudicator, Mr Hashfield confirmed that the claim was not a consumer dispute.[24]  He had also said in submissions filed with the tribunal on 13 December 2018 that he was not contending that the Council was a trader, which would have been the necessary prerequisite for the claim to be a consumer dispute.  However, he had used the tribunal’s Form 1 to bring the claim, which is used for consumer disputes.  It is clear from what was said at the hearing that the Adjudicator believed Mr Hashfield had simply used the wrong form by mistake.[25]
  4. [33]
    Therefore the Adjudicator concentrated on whether any part of the claim was to recover a debt or a liquidated demand of money.  In that respect the Adjudicator expressed the view that such a claim needed to be ‘an amount of money that everybody’s certain about’,[26] but also stated that the tribunal had no jurisdiction to decide whether the charges were ‘wrongfully levied’,[27] and that a demand for repayment is ‘not necessarily a liquidated demand unless there is incontrovertible evidence that, in fact, there was overcharging’.[28]
  5. [34]
    The second and third comments set out above suggest that the Adjudicator’s approach was that the tribunal only had jurisdiction where liability to pay the liquidated amount was either admitted, or so obvious that question of liability did not have to be enquired into and determined.  That this was indeed the Adjudicator’s approach is confirmed from this passage during discussion:[29]

A liquidated demand is something that’s absolutely capable of being ascertained because its incontrovertible ... it is certain that the one person owes it … and it is certain that the other person is the person to whom it is owed.

  1. [35]
    After some further discussion about this, the Adjudicator then said:

A liquidated demand is a slightly difficult concept to understand but it is generally where there has been a promise by one person to pay another person ... or an obligation to pay.

  1. [36]
    In the reasons for the decision given orally, the Adjudicator said:

I have determined that this is not a liquidated demand of money.  In order to arrive at that conclusion would require as assessment of the background to this and whether or not a claim for payment was validly made and this tribunal simply has no jurisdiction to make an assessment or a review of that particular decision that gave rise to what Mr Hashfield now says is the liquidated demand of money.

  1. [37]
    It seems that what the Adjudicator was saying here, as demonstrated by the earlier passages, was that in a case of a running account between two entities, where one of the entities claims that there was an error in the account and that therefore an amount certain was owed, the tribunal was unable to resolve the dispute about whether or not there had been an error in the account because it would not be a claim for a liquidated demand of money and would be outside that area of the tribunal’s minor civil dispute jurisdiction.

Was any claim before the Adjudicator within the tribunal’s jurisdiction?

  1. [38]
    Apart from tenancy and fencing matters, and damage from the use of motor vehicles, the tribunal’s jurisdiction to hear small claims, which are called ‘minor civil disputes’ is divided into two areas: minor debts claims and consumer disputes. 
  2. [39]
    In this appeal I am considering the minor debt claim jurisdiction.  A claim within that jurisdiction is described in the first limb of the definition of minor civil dispute in Schedule 3 of the QCAT Act as follows:

a claim to recover a debt or liquidated demand of money, with or without interest, of up to the prescribed amount…

  1. [40]
    Historically, the expression ‘debt or liquidated demand of money’ was not used to determine whether a court had jurisdiction over a particular matter, but was used to identify those proceedings which could be commenced using a specially endorsed writ, that is to say those matters suitable for summary judgment if the defendant failed to respond to the writ.  This history was traced by Sholl J in Alexander v Ajax Insurance Co Ltd [1956] VLR 436, a decision of the Victorian Supreme Court.
  2. [41]
    The tribunal has now built up a large body of case law on the meaning of the expression since its inception in 2009 (there have been at least 68 reported decisions on whether a particular claim is covered by the expression).
  3. [42]
    As can be seen from the tribunal’s case law, the meaning of the expression has been put in several different ways over the years, and decisions have been made on a case by case basis.  The tribunal’s own body of case law has in some respects taken a differing view from historical decisions in the mainstream courts, but a discussion of this is outside the scope of this appeal.
  4. [43]
    It is right that I should prefer the tribunal’s body of case law and learning when deciding whether a particular claim is covered by the expression.  In that respect I note that there is a useful description of what is not a liquidated demand of money in Practice Direction 9 of 2010 which explains what happens when there is an application under section 50A of the QCAT Act for a decision by default where the claim is for unliquidated damages.  It describes unliquidated damages as follows:

Unliquidated  damages  is  where  a  claim  is  made  for  a  sum  which  cannot  be determined without consideration, by the Tribunal, of the applicant’s evidence in support  of  the  claim –for  example,  a  claim  in  which  the  precise  amount  which should  be  awarded  cannot  be  determined  from  the  terms  of  a  prior  agreement between the parties, or some other standard; and must be calculated by reference to invoices, quotations or the like.

  1. [44]
    Citing Bonel v Sutton & Anor [2013] QCAT 414, Mr Hashfield submits in this appeal that his money claims could be ‘ascertained by calculation or fixed by a scale of charges or other positive data’.  He submits that he has put forward in the documents attached to his Form 1 application all the scales and data required for the tribunal accurately to calculate the water and sewerage charges which should have been made.  Hence the claims are within the tribunal’s jurisdiction.
  2. [45]
    This is, however, a misunderstanding of what is meant by the expression ‘debt or liquidated demand of money’.  For a claim for the repayment of an overcharge, it would be necessary when deciding such a claim to decide whether or not there was an overcharge and to assess the amount of the overcharge.  As Justice Alan Wilson, President explained in Hill v Berghofer [2011] QCATA 34, [7] this would not be a debt or liquidated demand.  He said:

A ‘debt or liquidated demand’ is … one where the amount is determined and, in effect, beyond dispute as to how it is calculated. If the amount depends upon assessment by the court or tribunal, it is not liquidated.

  1. [46]
    This also affects the claim for $6,615.84.  This is the claim for Mr Hashfield’s legal costs which he says he paid to lawyers for help with the notice of intention to sell land.  He told me it was for advice and for them to correspond with the Council about the notice.  Mr Hashfield claims this amount as consequential loss for the Council’s wrongful or unlawful action because either there was either no debt or a lesser debt owed at the time.
  2. [47]
    It is not agreed that this money should be paid to him if liability is shown, so this means that Mr Hashfield would have to adduce evidence showing that the Council’s breach caused this loss in the amount claimed.  Without such evidence he would not be entitled to any award.  And the tribunal would need to be satisfied there were no remoteness or mitigation issues.  The nature of this claim is therefore one of damages, but not a claim to recover a debt or liquidated demand of money.
  1. [48]
    The claim for $6,056.50 is however, different.  This was the charge levied by the Council for its costs of issuing the notice of intention to sell land.  This amount is not in issue between the parties.[30]  The breakdown of the amount appears in Mr Hashfield’s documents attached to the Form 1.[31]  A claim for this amount therefore appears to be a claim to recover a debt or liquidated demand of money.  What is in dispute between the parties is whether this amount is recoverable.  That would seem to turn on whether the issue of the notice of intention to sell was wrongful or unlawful.  If, as Mr Hashfield says, there was no debt capable of supporting the notice then this could be the case.  Whether or not there was a debt capable of supporting the notice is not a jurisdictional matter.  It is a question of liability, and does not affect whether or not the claim is a debt or liquidated demand on money.
  1. [49]
    As Justice Carmody said in Financial Advisers Australia v Mooney & Anor [2016] QCATA 181, [12] it is the nature of the claim, rather than its prospects of success, that determines jurisdiction.
  2. [50]
    Finally, the tribunal could only make an order of the type listed in section 13 of the QCAT Act.  This means that no order could have been made as applied for in the miscellany of other applications in Parts C and D of the Form 1 application which I have referred to above under ‘the claims before the Adjudicator’.  The Adjudicator was right to dismiss these claims.

Does the tribunal have jurisdiction where only part of the claim is to recover a debt or liquidated demand of money and the remainder is not?

  1. [51]
    I have decided that the claim for $6,615.84 was not a claim to recover a debt or liquidated demand of money but that the claim for $6,056.50 appears to be a claim to recover a debt or liquidated demand of money.  The application was therefore a mixed claim part of which appears to be within the jurisdiction of the tribunal and part of which was definitely not within the jurisdiction of the tribunal.
  2. [52]
    The question arises whether the tribunal has jurisdiction over such a mixed claim or whether the whole application is outside the jurisdiction of the tribunal.  The choice when resolving the appeal is therefore between:
    1. (a)
      allowing the appeal because one head of claim appears to be within the tribunal’s jurisdiction and remitting the application back to the tribunal for determination of that one head of claim, with the other heads of claim standing dismissed; or
    2. (b)
      dismissing the appeal on the basis that it is necessary for the application overall substantially to appear to be within the tribunal’s jurisdiction for the tribunal to have jurisdiction over the application.
  3. [53]
    In Hartley v Bennette [2014] QCAT 91, there were two heads of claim.  The first head of claim for $2,589 could have been a liquidated demand of money but the second head of claim for $631 definitely was not.  The question I asked in that case was whether ‘the claim overall is for a liquidated demand of money’.  I decided it was not, and therefore the tribunal did not have jurisdiction to deal with the matter.  In Hartley therefore, I required the application overall substantially to be within the tribunal’s jurisdiction.  Having considered this issue again, I have come to the same conclusion in this appeal.  I need to explain why I have come to this conclusion.
  4. [54]
    Section 11 of the QCAT Act gives the tribunal its jurisdiction in this area:

11 Jurisdiction for minor civil disputes

The tribunal has jurisdiction to hear and decide a minor civil dispute.

  1. [55]
    The first limb of Schedule 3 defines ‘minor civil dispute’ as:

a claim to recover a debt or liquidated demand of money, with or without interest, of up to the prescribed amount…

  1. [56]
    The question is whether ‘claim’ in this limb of the definition of minor civil dispute means a component part, or head of claim in the application, or whether it means the application considered as a whole, so that it has the same meaning as ‘proceeding’?  If the former, then the tribunal could have jurisdiction to hear and decide any part of a debt claim in its jurisdiction, provided it was not above the prescribed amount.  If the latter, then the tribunal would either have jurisdiction to hear the whole claim or would not have jurisdiction to hear any part of it: it would not be permissible to split it into parts and to hear and decide a part over which it had jurisdiction.
  2. [57]
    By limiting jurisdiction to ‘a claim’, in the singular, of up to the prescribed amount, this suggests that the word ‘claim’ is used to mean ‘proceeding’ rather than a head of claim.
  3. [58]
    However, in other parts of the QCAT Act, ‘claim’ is used to mean ‘head of claim’.  It is preferable to interpret the same word consistently throughout a statute,[32] so it is necessary to see how the word ‘claim’ is used in the Act.
  4. [59]
    It is used to mean a ‘head of claim’ in paragraph 1(b)(v) in the definition of minor civil dispute in Schedule 3, that is the second limb of that definition for a claim arising out of a contract between a consumer and trader.  That paragraph contemplates a combination of two or more claims where the total value of the combined claim is not more than the prescribed amount. 
  5. [60]
    Section 14 seems to use ‘claim’ to mean ‘head of claim’ rather than ‘proceeding’.  This section provides that interest can be awarded ‘in relation to a minor civil dispute involving a claim to recover a debt or liquidated demand of money’.  This seems to contemplate that a minor civil dispute could be both a debt and a consumer claim, where for example a consumer seeks a refund and/or damages, which in practice often happens.  Interest could be awarded for one claim but not the other.
  6. [61]
    Section 50A(3) describes the different claims which can be included in an application for a decision by default for unliquidated damages.  This section uses ‘claim’ to mean ‘head of claim’.
  7. [62]
    In section 12 however, in subsection (2) and (3), the word ‘claim’ is clearly used to mean ‘proceeding’ because these provisions permit an applicant to limit a minor civil dispute claim to the prescribed amount, and this is a reference to the overall amount of the claim and not to a part of it.
  8. [63]
    The word ‘claim’ is therefore not used consistently in the QCAT Act.  So there is no indication from this how the word ‘claim’ is used in the first limb of the definition of minor civil dispute in Schedule 3.
  9. [64]
    There may be some assistance from seeing how the word ‘claim’ is used in the QCAT Rules.[33]  The rules contemplate that when commencing a proceeding an applicant will use an approved form for either a ‘minor debt claim’ (Form 3), which is defined to be a claim defined in the first limb of Schedule 3 of the QCAT Act, or a consumer claim (Form 1), but not both forms.  The rules then provide a different procedure in the tribunal for each type of ‘claim’.  This is only workable if the type of claim is defined by which form was used to commence the proceeding, rather than the type of claim brought.[34]  Hence in the rules the word ‘claim’ is used in the sense of ‘proceeding’.
  10. [65]
    A review of the origin of the first limb definition of minor civil dispute in Schedule 3 also assists.  It comes from the wording of the Magistrates Court ‘minor debt’ jurisdiction which was defined in section 3 of the Magistrates Courts Act 1921 (Qld) as follows:

minor claim means a claim for an amount, including interest, of not more than $7,500, whether as a balance or after an admitted set off, reduction by any amount paid by or credited to the defendant, abandonment of any excess, or otherwise

‘minor debt claim’ means a minor claim in which the plaintiff

  1. (a)
    claims to recover against a defendant a debt or liquidated demand in money, with or without interest; and
  1. (b)
    elects in the claim to have it heard and decided in a Magistrates Court under the simplified procedures in the Uniform Civil Procedure Rules
  1. [66]
    It is clear that the word ‘claim’ is used here to mean ‘proceeding’.  This appears from its use to identify whether the proceeding is within the financial limit to be a minor claim, but also in paragraph (b) which must refer to the whole claim and not just part of the claim.
  2. [67]
    The explanatory notes[35] to the QCAT Bill demonstrate that the Magistrates Court minor debt claims simplified procedure was transferred to QCAT without any intention to amend how it functioned:

The stage one report made recommendations about the scope of the new tribunal’s jurisdiction, which existing tribunals should be abolished and their jurisdiction transferred to the new tribunal and the current jurisdiction of the courts which should be transferred to the new tribunal.

Clause 11 establishes the tribunal’s jurisdiction to hear and decide a minor civil dispute. Minor civil disputes are those disputes that are currently dealt with in Small Claims Tribunals ... and in the Magistrates Court through the minor debt claims simplified procedure under the Uniform Civil Procedures Rules 1999...

  1. [68]
    Hence the word ‘claim’ in the first limb of the definition of minor civil dispute in Schedule 3 of the QCAT Act should be interpreted in the same way as it was before.
  2. [69]
    I conclude therefore, that for the tribunal to have jurisdiction in this area,[36] the application overall must be to recover a debt or a liquidated demand of money.  If any substantial part of the claim is not to recover a debt or a liquidated demand of money and is not otherwise within the jurisdiction of the tribunal, then there is no jurisdiction to hear the application.[37]  Of course it is open to a party faced with this difficulty to abandon the part of the application which is outside the jurisdiction of the tribunal.
  3. [70]
    I should emphasise that this is only a finding in relation to the area of the tribunal’s jurisdiction in claims to recover a debt or liquidated demand of money.  Because of the different wording in the case of consumer claims, the outcome when considering the several gaps in that jurisdiction may well be different. 

Conclusion in the appeal

  1. [71]
    The claim for $6,056.50 appears to be a claim for recovery of a debt or liquidated demand.  The other main claim before the tribunal for $6,615.84 was not a claim for recovery of a debt or liquidated demand.  Neither claim is cast as a consumer claim. 
  2. [72]
    When considering the debt or liquidated demand area of the tribunal’s jurisdiction, it is necessary for the claim overall substantially to be within the tribunal’s jurisdiction. Here only one of two main heads of claim of roughly equal value was within the jurisdiction of the tribunal.  Therefore overall the claim before the tribunal was not substantially within its jurisdiction.
  3. [73]
    Although the Adjudicator was right to dismiss the claim, the route taken to do so seems to have been incorrect.  Leave to appeal is granted.  But the appeal fails because it was right for the Adjudicator to dismiss the claim for want of jurisdiction.

Application to put fresh evidence before the Appeal Tribunal

  1. [74]
    Mr Hashfield seeks to put fresh evidence before the Appeal Tribunal which he says, proves errors in calculating the water and sewerage charges, a contractual agreement to adjust those charges, and other matters.[38]
  2. [75]
    The outcome of the appeal has turned on jurisdictional issues which have been resolved against Mr Hashfield, and that outcome has not been influenced by any evidence.  So the application to put in fresh evidence is refused because the fresh evidence could not affect the outcome.

Footnotes

[1]  Section 3(b).

[2]  Section 4(c).

[3]  He says that this happened because the Adjudicator had not read the application and accompanying documents in full prior to the hearing.

[4]  Transcript 1-9 line 46.

[5]  His submissions of 13 December 2018.

[6]  Transcript 1-29 line 34.

[7]  By Schedule 2, Part 1 paragraph 1 and Part 3 paragraph 18 of the Powers of Attorney Act 1998 (Qld), Mr Hashfield could bring a proceeding in his wife’s name, so she could have been added as an applicant at the hearing.

[8]  These appear from the Form 1 application which originally started the proceedings, from documents attached to that application, from written submissions made prior to the hearing before the Adjudicator, from oral submissions made at the hearing before the Adjudicator, from documents submitted in this appeal, and from what was said at the appeal hearing itself.  There were also a number of other issues raised in the documents attached for the Form 1 application about the Council’s decision making, failure to apply concessions, forms of invoices, and its policy and procedures, which would not be relevant in a hearing of a minor civil dispute and are not relevant to this appeal.

[9]  The overcharge set out in (a) to (d) is relied on as showing that there was either no debt or a lesser debt when the notice of intention to sell was issued.  Some other overcharges, which are not claimed for, are also relied on here.  There is an incorrect calculation of charges by the previous supplier Allconnex, resulting in an incorrect debit on the account, which was transferred to the Council when it took over as supplier, a failure by Allconnex and/or the Council to read and/or test the water meter for accuracy when requested by Mr Hashfield in 2011 and subsequently and double billing on one occasion in 2014 for the same water charges.

[10]  Page 31.

[11]  Which, it was said, would result in repayment ‘of the re-issued notices 6 February 2018 ($9954.50) Exhibit G’: page 47 of the documents attached to Form 1. 

[12]  Rule 43.

[13]  Submissions dated 7 December 2018.

[14] Queensland Civil and Administrative Tribunal Regulation 2009 (Qld), s 5.

[15]  Submissions dated 13 December 2018.

[16]  Submissions dated 5 January 2019.

[17]  The QCAT Rules require an application to be made in the approved form, which is then sealed and served, and the prescribed fee needs to be paid.  None of this was done. 

[18]  Item 1 in Part C of the claim.

[19]  Page 2 of the documents attached to the claim but headed ‘the orders or directions sought are’.

[20]  Item 4 in Part C of the claim.

[21]  Item 3 in Part C of the claim.

[22]  Claim C(iv) on page 3 of the documents attached to the Form 1.

[23]  Claim B(iii) on page 3 of the documents attached to the Form 1.

[24]  Transcript 1-12 line 1.

[25]  Transcript 1-11 line 31.  The Adjudicator explained that no prejudice would arise from that.

[26]  Transcript 1-14 line 36.

[27]  Transcript 1-16 line 23.

[28]  Transcript 1-16 line 44.

[29]  Transcript 1-21 line 11.

[30]  This appears from the Council’s submissions filed with the tribunal on 7 December 2018.

[31]  Page 2.

[32] Commissioner of State Revenue v Gundachar ​[2017] QCATA 79, [44].

[33]  The Rules are made by the Governor in Council – section 224 of the QCAT Act.

[34]  This is because it is often the case an applicant will use the wrong form or bring both types of claims in the same application.  The procedures are in fact quite different.  Form 3 claims require personal service and a response but no counter-application is permitted.  Form 1 claims do not require personal service, a response is not permitted but a counter-application is permitted.  The costs and disclosure of documents provisions are also slightly different.

[35]  Section 14B of the Acts Interpretation Act 1954 (Qld) permits the explanatory notes to be considered.

[36]  That is a ‘minor debt claim’ as defined in the first limb of the definition of minor civil dispute in Schedule 3 of the QCAT Act. 

[37]  There is no difficulty where there is a mixed claim part of which is within the tribunal’s jurisdiction as a debt or liquidated demand of money and part of which is within the jurisdiction as a trader-trader claim: Adelaide Nut Distributors Pty Ltd v Plus Sales Pty Ltd [2012] QCATA 4 (Senior Member Richard Oliver).

[38]  Application lodged on 8 July 2019.

Close

Editorial Notes

  • Published Case Name:

    Anthony Hashfield v Gold Coast City Council

  • Shortened Case Name:

    Hashfield v Gold Coast City Council

  • MNC:

    [2020] QCATA 36

  • Court:

    QCATA

  • Judge(s):

    Member Gordon

  • Date:

    27 Mar 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
Help

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.