Rae v Qantas Airways Limited
[2021] QCAT 376
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- Unreported Judgment
- Rae v Qantas Airways Limited[2021] QCAT 376
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Rae v Qantas Airways Limited[2021] QCAT 376
Rae v Qantas Airways Limited[2021] QCAT 376
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Rae v Qantas Airways Limited [2021] QCAT 376 |
PARTIES: | DARRYL RAE (applicant) v QANTAS AIRWAYS LIMITED (respondent) |
APPLICATION NO/S: | MCD/Q01070/19 |
MATTER TYPE: | Other minor civil dispute matters |
DELIVERED ON: | 4 January 2021 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Adjudicator Lember |
ORDERS: |
|
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – minor civil dispute – consumer dispute – where notice to produce issued to third party – where claim appears to be for property damage – where directions made to parties to make submissions on jurisdiction prior to hearing Competition and Consumer Act 2010 (Cth), Schedule 2 s 60, s 61, s 62, s 267(4) Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3(b), s 4(b), s 4(c), s 11, s 13, s 23(3)(c), s 32(2), s 62(1), s 63, s 95(1), s 95(2), s 97(1), s 98, s 114, s 122, Schedule 3 Queensland Civil and Administrative Tribunal Rules 2009 (Qld) s 78 Australian Property Custodian Holdings Ltd (in liq) (recs and mgrs apptd) (controllers appointed) v Woolridge [2013] VSC 154 Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226 Hatton v Attorney-General (Cth) & Ors [2000] FamCA 892 Langan & Langan [2013] FCCA 258 Martin & Anor v Chadia Chalmers Pty Ltd [2020] QCATA 164 |
APPEARANCES & REPRESENTATION: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
REASONS FOR DECISION
Background
- [1]By an application for minor civil dispute – consumer dispute filed 27 June 2019 the applicant sought orders from the Tribunal that the respondent pay the applicant the sum of $24,500 within seven days of the date of the Order, for repairs to the applicant’s Rolex watch and band that the applicant says were damaged by the respondent’s staff on 5 November 2018.
- [2]An interlocutory decision was made on 4 January 2021 to refuse an application by the applicant for a notice requiring the production of documents and things, and at the same time, directions were given to the parties.
- [3]
Nature of the dispute
- [4]On 5 November 2018 the applicant and his spouse were booked to fly to Sydney on a service operated by the respondent from Brisbane Airport.
- [5]The departing flight was delayed by one hour and 10 minutes due to an engineering issue (according to the respondent), that required boarded passengers to disembark in Brisbane and, ultimately, to change aircraft.
- [6]The applicant approached the respondent’s counter staff to express his dissatisfaction with the delay on account of its impact on his connection in Sydney to a departing cruise. An incident (described by the applicant as “the incident of 5 November 2018”[2]) occurred following which the applicant was denied carriage on the flight and given a 24-hour flight ban, and during which QANTAS security and MSS Security were called to assist the respondent’s counter staff in their dealings with the applicant.
- [7]The applicant says his checked baggage was damaged by the respondent. This has been resolved and does not form part of the application. Further, the applicant has received a full refund of his booking fees because neither he nor his spouse travelled with the respondent.
- [8]The applicant’s case, in summary, is that:
- (a)His Rolex watch was damaged in his interactions with the respondent’s staff; and
- (b)The respondent has agreed to compensation; and
- (c)Compensation in the sum of $24,500 is necessary in order to repair the watch.
- (a)
- [9]The respondent says that the applicant:
- (a)Has not articulated how he alleges the respondent’s staff damaged the watch;
- (b)Has not provided any proof to support the allegation; and
- (c)Has not substantiated the quantum of his claim.
- (a)
Chronology of the proceedings to date
- [10]The application having been filed on 27 June 2019, a Notice of Mediation issued on 10 July 2019 requiring the parties to attend mediation on 7 August 2019.
- [11]On 2 August 2019 the applicant sought an adjournment of the mediation and this was consented to by the respondent.
- [12]On 7 August 2019 a fresh Notice of Mediation issued for mediation to take place on 21 August 2019.
- [13]The parties participated in mediation on 21 August 2019 but did not resolve their dispute at that time.
- [14]On 20 February 2020 a Notice of Hearing issued for a hearing to take place on 18 March 2020.
- [15]The applicant requested an adjournment of the hearing on the grounds that he would be overseas until 23 April 2020.
- [16]By a decision made 10 March 2020 the hearing of the application was adjourned to a date to be fixed.
- [17]At that time the emerging COVID-19 pandemic led to the adjournment of all non-urgent matters before the Tribunal.
- [18]On 20 May 2020, the parties were sent Practice Direction 5 of 2020 advising them of steps to take prior to the hearing (for which a date had not been set).
- [19]On 7 December 2020 the parties were issued with a Notice of Hearing to take place on 14 January 2021.[3]
- [20]On 17 December 2020 the applicant filed a Form 38 Hearing notice: application (the hearing notice application) seeking that the Tribunal order Mr Alan Joyce to produce:
…all CCTV footage of the incident at the Brisbane Airport, an unredacted copy of all investigation notes, files, emails, statements and any other thing held by QANTAS, its servants and agents, including the engaged security officers who attended the incident at Brisbane Airport of 5 November 2018. Furthermore it is requested that the respondent supplies all recrdings (sic) of the pilot’s announcements, the technical reports and any other relevant thing in regards to the grounding of the aircraft leading to the incident of 5 November 2018.
- [21]The reasons for the request were stated as being:
The information items requested will assist inproving (sic) that QANTAS and its staff, including contractors demonstrated negligence leading to the damage of the personal property owned by the applicant and that the respondent had not been truthful in its response to the applicants (sic) complaint.
- [22]The Tribunal registry was closed between and including 19 December 2020 and 3 January 2021.
- [23]The hearing notice application filed 17 December 2020 came before me “on the papers” on 4 January 2021 and was decided at that time.
Law
The Tribunal’s role
- [24]The objects of the QCAT Act[4] include to have the Tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick, and, to that end, section 4 of the Act requires the Tribunal, among other things, to:
- (a)
- (b)ensure proceedings are conducted in an informal way that minimises costs to the parties and is as quick as is consistent with achieving justice.[6]
- [25]Section 13 of the QCAT Act obliges the Tribunal to make orders that it considers fair and equitable to the parties to the proceeding in order to resolve the dispute but may, if the Tribunal considers it appropriate, make an order dismissing the application.
Jurisdiction
- [26]The Tribunal has jurisdiction to hear minor civil disputes.[7] The minor civil dispute jurisdiction is a high-volume jurisdiction,[8] and as noted by Member Hughes the High Court has recently observed in relation to court resources generally that they serve “… the public as a whole, nor merely the parties to the proceedings”.[9]
- [27]
- [28]I am satisfied, prima facie on the papers, that the applicant appears to have been a consumer and the respondent a trader.
- [29]The relief sought purports to be for damage or loss under the Australian Consumer Law, contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth).
- [30]Section 267(4) of the Australian Consumer Law confers a right to damages in relation to the supply of services to a consumer where there has been a failure to comply with certain guarantees, including:
- (a)that the services will be rendered with due care and skill (section 60); and
- (b)that the services and any product resulting from the services will be reasonably fit for a particular purpose made known to the supplier (expressly or by implication) (section 61); and
- (c)the services will be supplied within a reasonable time (if the time is not fixed by the contract and not to be determined by agreement) (section 62).
- (a)
- [31]Under section 267(4), the consumer may recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure.
- [32]The common law also implies terms into contracts for the performance of services that such services will be performed with due care and skill, in respect of a breach of which losses are recoverable as liquidated damages.
Procedural powers
- [33]Section 62(1) of the QCAT Act permits the Tribunal to give a direction at any time in a proceeding and do whatever is necessary for the speedy and fair conduct of the proceeding.
- [34]
- [35]The Tribunal’s power to make a decision in a proceeding (the primary power) includes a power to make such directions as the Tribunal considers appropriate for achieving the purpose for which the Tribunal may exercise the primary power.[12]
- [36]Proceedings may be finally determined, or interlocutory applications decided upon the written submissions of the parties without those parties or their representatives appearing at a hearing.[13] These proceedings are known as decisions made “on the papers”.
- [37]The Tribunal must allow a party to a proceeding a reasonable opportunity to call or give evidence and to make submissions to the Tribunal.[14] However, the Tribunal may refuse to allow a party to a proceeding to call evidence on a matter if the Tribunal considers there is already sufficient evidence about the matter before the Tribunal.[15]
Notice to produce
- [38]
- [39]Section 63(1) of the QCAT Act provides that the Tribunal may make an order requiring a person who is not a party to a proceeding but who has, or is likely to have, in the person’s possession or control a document or thing relevant to the proceeding to produce that document or thing (my emphasis added).
- [40]For a notice to produce to be granted, it must be relevant to a proceeding and a lack of relevance is, of itself, grounds by which the Tribunal can decline to issue the notice to produce.[18]
- [41]
- [42]There must also be, in my view, a legitimate forensic purpose for issuing the notice. The production of documents cannot be compelled for the purpose of trawling through what was produced in the hope of generating lines of enquiry not otherwise available to support the case in question, or, in other words, as a ‘fishing’ expedition.[21]
- [43]The appropriate test to apply to ascertain legitimate forensic purpose is whether or not the documents sought will materially assist the applicant’s case.[22]
Findings
Notice to Produce
- [44]The Notice is directed to “Mr Alan Joyce” personally. Mr Joyce is not the respondent. Whilst it is reasonably common knowledge that Mr Joyce is the Chief Executive Officer of the respondent, there is no evidence contained in the application or any subsequent submissions to suggest that Mr Joyce personally has, or is likely to have, possession or control of the documents or the camera footage sought by the applicant.
- [45]The documents and things sought to be produced are held or are likely to be held by parties that may include the respondent, Brisbane Airport Corporation, the Australian Federal Police and/or MSS Security.
- [46]It is for the applicant to satisfy the Tribunal that the party to whom the notice is directed has or is likely to have possession of the things they are being asked to produce. The applicant has not discharged that onus with respect to Mr Joyce and particularly not in his personal capacity.
- [47]Even if the request was directed to a party who, in my view, had or was likely to have possession or control of the documents or things referred to in the notice, I must be satisfied as to relevance before compelling production and I was not so satisfied.
- [48]The request for the records to be produced references “the incident of 5 November 2018”. According to the application, the “incident” relevant to the claim is an interaction between the applicant and the respondent’s staff or security personnel during which he says his watch was damaged. As a prelude to this incident, the aircraft upon which the applicant was to travel had been delayed. That the flight was delayed is not in dispute and the reason for the delay is not relevant to the claim. The alleged incident appears to be an allegation of rough handling by security personnel leading to the damage of the applicant’s watch.
- [49]The applicant does not allege that the damage the subject of the claim occurred in the course of checking in, boarding, occupying the aircraft briefly or disembarking. The incident occurred in a separate event entirely, being an altercation that followed the applicant attending upon the respondent’s staff at the airport and expressing dissatisfaction with the delayed flight.
- [50]To the extent, therefore, that the notice requested engineering and maintenance records for the aircraft these matters are simply not relevant to the claim and that part of the request appears to be in the nature of a “fishing” expedition.
- [51]As to the balance of the request, namely, CCTV footage of the “incident”, I am not convinced on balance that this evidence would assist the Tribunal in hearing and determining the matter.
- [52]Neither party appears to dispute that the applicant interacted physically with MSS Security. It is reasonably foreseeable that if a person is handled by security, that their clothes or accessories might be damaged in the ‘scuffle’. Therefore, I am not convinced on balance that the presiding adjudicator would be assisted by viewing the footage sought.
- [53]The likelihood that its contents would not materially assist an issue in the proceedings, coupled with the fact that compelling the production of that material would cause unnecessary delay to the hearing of the application (bearing in mind the Tribunal’s mandate to ensure proceedings are conducted in an informal way that minimises costs to the parties and is as quick as is consistent with achieving justice[23]), compels me to refuse the request.
Directions
- [54]When reviewing the file for the purpose of considering the hearing notice application, the claim seemed, on its face, to be a claim for property damage over which the Tribunal is unlikely to have jurisdiction because:
- (a)The incident of 5 November 2018 did not appear to have occurred in the course of the respondent providing a service to the applicant – in fact, any issues arising from the failed flight service were already compensated prior to this application; and
- (b)Other than when arising from a failure to provide a service with due care and skill, or a motor vehicle accident, property damage claims are outside the minor civil dispute jurisdiction.
- (a)
- [55]Given the COVID-19 adjournments that have unusually delayed parties in coming before the Tribunal, I have attempted where considering ‘on the papers’ applications (such as the hearing notice application) to review these files with a view to making directions that may assist the parties and the Tribunal in addressing preliminary (including jurisdictional) matters prior to any upcoming hearings.
- [56]It can be a matter of grave disappointment to an applicant who has waited some time for their matter to be heard to first learn in the hearing that their claim has a fatal defect.
- [57]Given the quantum of the applicant’s claim, the reasonable likelihood that the respondent might have the benefit of in-house legal assistance in preparing its case for hearing and might, therefore, be better prepared to discuss a jurisdiction question without notice than the applicant, I considered the interests of natural justice to require that the parties, and in particular, the applicant, turn their minds to and prepare for that issue prior to the hearing.
- [58]Preparation by the parties on that particular point would also assist in hearing the proceeding quickly, consistent with the Tribunal’s mandate.
- [59]Therefore, in addition to addressing the request to produce, I also gave directions to the parties to make submissions on the question of jurisdiction. A typical order of that nature would usually also be accompanied by a direction that the decision on jurisdiction/dismissal would be made on the papers. However, I declined to direct that because the purpose of the order was to prepare the parties to address that issue at the upcoming hearing.
- [60]I made an additional direction that the parties file and serve material by email prior to the hearing because:
- (a)The applicant did not file any material with the application, including any evidence or proof to support the allegation of damage or the quantum of his claim, nor did he file any material after receiving Practice Direction 5 of 2020; and
- (b)The respondent had leave to appear at the hearing by telephone, with the effect that, if the applicant attended the hearing with his evidence, it would cause unnecessary delay, and perhaps the need for an adjournment, in order to give the respondent an opportunity to receive and respond to the applicant’s evidence.
- (a)
- [61]For those reasons, I made the orders set out below.
Orders
- Application by applicant for a notice to produce is refused on the grounds that it lacks relevance, is too broad and is not directed to the respondent.
- By 4:00pm 11 January 2021, each party to make submissions as to why the Tribunal should not dismiss the application for want of jurisdiction as the claim appears to be a damages claim.
- Each party otherwise to file by email and to serve the other party all material and evidence upon which they wish to rely by 4:00pm 13 January 2021.
Footnotes
[1] Section 122 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
[2] Form 38 Hearing notices: application dated 17 December 2020.
[3] At the time of writing these reasons, this hearing has now also been adjourned at the applicant’s request.
[4] Section 3(b) of the QCAT Act.
[5] Ibid, section 4(b).
[6] Ibid, section 4(c).
[7] Ibid, section 11.
[8] Martin & Anor v Chadia Chalmers Pty Ltd [2020] QCATA 164.
[9] Ibid at [29], citing Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226 at [13].
[10] QCAT Act, Schedule 3 (definition of ‘minor civil dispute’).
[11] QCAT Act, section 28(3)(c).
[12] Ibid, section 114.
[13] Ibid, section 32(2).
[14] Ibid, section 95(1).
[15] Ibid, section 95(2).
[16] QCAT Rules, rule 78(1)(b).
[17] Ibid, rule 78(1)(c).
[18] Hatton v Attorney-General (Cth) & Ors [2000] FamCA 892 at [49].
[19] Ibid at [58].
[20] Langan & Langan [2013] FCCA 258.
[21] Hatton v Attorney-General (Cth) & Ors [2000] FamCA 892 at [50].
[22] Australian Property Custodian Holdings Ltd (in liq) (recs and mgrs apptd) (controllers appointed) v Woolridge [2013] VSC 154 at [99].
[23] QCAT Act, section 4(c).