Exit Distraction Free Reading Mode
- Unreported Judgment
Mounter v Hayburn QCATA 40
Mounter v Hayburn  QCATA 40
Anne Marie Mounter
Kerrid John Hayburn
On the papers
Justice D Thomas, President
20 March 2015
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – were motor vehicle collision – where car driven by employee – whether owner/employer liable for acts of employee – whether grounds for leave to appeal
APPEAL – LEAVE TO APPEAL – LEAVE FOR LEGAL REPRESENTATION – where late application for leave for legal representation – where no complex question of law – where allegation of threats – where tribunal refused leave – whether grounds for leave to appeal
APPEAL – LEAVE TO APPEAL – PROCEDURE – where no cross-examination at hearing – where no request for cross-examination – where expedited hearing – whether tribunal required to allow cross-examination – whether grounds for leave to appeal
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 43(1), 43(3)(b), 94(1)(a), 95(1)(b), 95(2)(c), 142(3)(a)(i)
Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 82
Dearman v Dearman (1908) 7 CLR 549
House v The King (1936) 55 CLR 499
Soblusky v Egan  HCA 9
Hollis v Vabu Pty Ltd  HCA 44
Fox v Percy (2003) 214 CLR 118
Pickering v McArthur  QCA 294
Clarke v Japan Machines (Australia) Pty Ltd  1 Qd R 404
Chambers v Jobling (1986) 7 NSWLR 1
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 (Qld) (QCAT Act).
REASONS FOR DECISION
- On 5 April 2013, Mr Hayburn was sitting in his Toyota Hilux on the Dawson Highway, waiting to make a right hand turn. A Honda, owned by Ms Mounter and driven by one of her employees, ran into the back of the Hilux, causing damage. Mr Hayburn received advice that the Hilux was a write off. He filed a claim in the tribunal for $8,000, being the value of the Hilux. A Magistrate, sitting in the minor civil disputes jurisdiction of the tribunal, ordered Ms Mounter pay Mr Hayburn $8,000 plus costs.
- Ms Mounter wants to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.
- Ms Mounter submits that the learned Magistrate failed to take into account the fact that Mr Hayburn drove the car even after claiming it was a write off.
- Mr Hayburn admitted that he did try to fix the Hilux after the collision but he also told the learned Magistrate that a repairer advised him that the Hilux could not be fixed. Mr Hayburn provided a statutory declaration from Stanley Williams confirming that view. Mr Hayburn also provided a copy of an invoice which shows he received $500 for the Hilux from a panel beater. It is true that the learned Magistrate did not address this point directly in his reasons for decision. However, he did accept the quote from the panel beater and the evidence can support a finding that the Hilux was a write off. I am not satisfied that the learned Magistrate fell into error in giving his decision. The evidence was capable of supporting this conclusion.
- Ms Mounter submits that Mr Hayburn failed to give her an opportunity to obtain a quote for the repair of the Hilux. The collision occurred on 5 April 2013. In his statutory declaration sworn 10 September 2013, Mr Hayburn swears that he was ringing Ms Mounter ‘every week’ trying to sort out his claim. He swears that he worked for Ms Mounter for about four weeks. Mr Hayburn swore that he tried to process the claim through Ms Mounter’s insurer but the claim was denied.
- Ms Mounter filed a letter in the tribunal in which she confirms constant phone calls from Mr Hayburn, that he worked for her, and that the insurance claim was denied. The evidence, overall, shows that Ms Mounter had a number of opportunities to obtain her own quote.
- The file also shows that Mr Hayburn obtained a decision against Ms Mounter on 20 March 2014, that the decision was set aside, and that the hearing was adjourned on 27 August 2014 to allow the parties time to file more evidence. Ms Mounter cannot now complain, over 18 months after the incident, that she did not have an opportunity to obtain her own quote.
- Ms Mounter submits that the learned Magistrate refused to allow her to introduce evidence of the cost of repair of the Hilux. That submission is at odds with her previous submission that she did not have an opportunity to obtain a quote. I have read the transcript. There is nothing in the transcript to suggest that Ms Mounter asked the learned Magistrate to accept any evidence from her on this point. This ground of appeal must fail.
- Ms Mounter submits that the learned Magistrate failed to apportion liability between the driver and herself.
- The learned Magistrate stated that he could not come to a conclusion about that issue because there was insufficient evidence. It is a well settled principle that an employer is vicariously responsible for the acts of an employee. It is also a well settled principle that the owner of a car is vicariously liable for the acts of a person who is driving the car with the owner’s full knowledge and consent. The driver was liable to Mr Hayburn as the driver; Ms Mounter was liable to Mr Hayburn as owner and employer. They are both liable to Mr Hayburn for the full amount of Mr Hayburn’s claim. There were no proceedings between the driver and Ms Mounter on which the learned Magistrate was required to make a finding. There is no substance to this ground of appeal.
- Ms Mounter submits that the learned Magistrate erred in failing to find that Mr Hayburn was also negligent and that he should bear some contribution to the loss.
- The learned Magistrate found that the driver ran squarely into the back of Mr Hayburn’s stationary vehicle and, therefore, she was 100% at fault. The evidence can support the learned Magistrate’s finding. There was no evidence before him to suggest that Mr Hayburn was at fault in any way. There is no substance in this ground of appeal.
- Ms Mounter submits that the learned Magistrate failed to give her a reasonable opportunity to cross-examine Mr Hayburn, contrary to s 95 of the QCAT Act.
- The learned Magistrate did not invite the parties to cross examine each other. Ms Mounter did not ask for the right to cross examine Mr Hayburn. Neither of those facts is unusual in a minor civil dispute hearing where the parties are self-represented and have little understanding of the rules of evidence or hearing procedure. It would have been helpful if, at the start of the hearing, the learned Magistrate told the parties what procedure he intended to adopt for the hearing.
- Section 95(1)(b) does state that the tribunal must allow a party a reasonable opportunity to cross-examine a witness. However, section 95(2)(c) states that, in an expedited hearing, cross-examination of witnesses is at the discretion of the tribunal. Minor civil disputes can be conducted as an expedited hearing. The procedure in this dispute conformed to the procedure for an expedited hearing. Therefore, the right to cross-examine was within the learned Magistrate’s discretion.
- The matter in dispute between the parties was whether the Hilux was a write off. Mr Hayburn asserted it was a write off and produced evidence to support that view. Ms Mounter disagreed but produced no evidence. I can find no reason to overturn the learned Magistrate’s exercise of his discretion to proceed without cross-examination.
- Ms Mounter submits that the learned Magistrate failed to provide procedural fairness. She does not give particulars of that failure. The transcript provides no support of Ms Mounter’s submission.
- Ms Mounter submits that the learned Magistrate failed to take account of the affidavits she filed on 1 October 2014, the day before the hearing.
- The affidavit was filed in support of an application for leave for representation. The affidavit related to the ownership of the Honda and Mr Hayburn’s behaviour towards Ms Mounter. The learned Magistrate considered both of these issues. He found that Ms Mounter need not fear Mr Hayburn. He received further submission from Ms Mounter about the ownership of the Honda. There is no substance in this submission.
- Ms Mounter submits the learned Magistrate erred in refusing to allow her legal representation.
- Generally, parties in the tribunal are self-represented unless the interests of justice require otherwise. The tribunal may allow leave to representation if the proceeding is likely to involve complex questions of law but Ms Mounter did not point to any complex questions of law. Her affidavit in support of the application for leave pointed out the issue of ownership and that Mr Hayburn had threatened her.
- The learned Magistrate found that Ms Mounter was capable of proving the matters in issue without legal representation. He found that any fear Ms Mounter may have had could be dealt with during the hearing. He was concerned at a late application for leave to be represented when this matter had been before the tribunal for some time.
- The granting of leave to be represented was a matter within the learned Magistrate’s discretion. Where there is an appeal against the way a Member exercised a discretion, the Appeal Tribunal will not interfere unless it can be shown that the learned Magistrate acted upon a wrong principle, or made mistakes of fact which affected the decision, or was influenced by irrelevant matters. The mere fact that the Appeal Tribunal might have exercised the discretion differently is not a basis for changing the decision: it must be shown that the decision is plainly unjust or unreasonable, and involved a clear misapplication of the discretion.
- I can find no evidence that the learned Magistrate acted on a wrong principle, failed to consider relevant material or considered irrelevant material. There is no substance in this submission.
- There is no reasonably arguable case that the learned Magistrate was in error. Leave to appeal is refused.
 QCAT Act s 142(3)(a)(i).
 Pickering v McArthur  QCA 294 at .
 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125 – 126.
 Chambers v Jobling (1986) 7 NSWLR 1 at 10.
 Transcript page 1-7, lines 14 – 15.
 Transcript page 1-7, lines 16 – 17.
 Transcript page 1-8, lines 31 – 32.
 Transcript page 1-9, lines 14 – 20.
Hollis v Vabu Pty Ltd (2001) 207 CLR 21.
 Soblusky v Egan (1960) 103 CLR 215.
 Transcript page 1-8, lines 35 – 41.
 QCAT Act s 94(1)(a).
 Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 82.
 Transcript page 1-3, lines 1 – 3.
 Transcript page 1-5, line 18 to page 1-7, line 5.
 QCAT Act s 43(1).
 Ibid s 43(3)(b).
 Transcript page 1-3, lines 11 – 13.
 Transcript page 1-3, lines 2 – 3.
 Transcript page 1-3, lines 13 – 15.
 House v The King (1936) 55 CLR 499 at 504.
 Lovell v Lovell (1950) 81 CLR 513.
- Published Case Name:
Anne Marie Mounter v Kerrid John Hayburn
- Shortened Case Name:
Mounter v Hayburn
 QCATA 40
20 Mar 2015