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Wen v Best International Tradelink QCATA 128
Wen v Best International Tradelink  QCATA 128
Best International Tradelink
On the papers
A/Senior Member Gordon
29 August 2016
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where Respondent’s case appeared for the first time at the hearing and was accepted by the tribunal without the Appellant having a chance to comment on it – where a document was admitted in evidence but the Appellant who was on the telephone was unable to see it and did not have it described – where Appellant was offered a chance to respond to the Respondent’s case but this never happened – whether procedural unfairness – whether grounds for leave to appeal – whether appeal should be allowed
Queensland Civil and Administrative Tribunal Act 2009 s 146
Queensland Civil and Administrative Tribunal Rules 2009 r 43
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
- This is an appeal (and an application for leave to appeal) brought by Xinhua Wen against a decision of the tribunal dismissing his claim against Best International Tradelink.
- Two Justices of the Peace constituted the tribunal hearing this claim as a minor civil dispute.
- In this appeal, Mr Wen complains of a number of matters that happened at the hearing which (in this appeal) could be regarded as a breach of natural justice, which may entitle him to a rehearing.
- He complains that having been told to wait for his turn to speak he was not given that chance. He says he was unable to make a closing submission. He also complains that the Respondent’s supporting document was not revealed to him. He says that an add-on application that he made to disclose goods tracking information custom clearance was not mentioned at the hearing. He also complains that facts were decided without evidential support, were unverified and undiscussed. He also wishes to rely on some new documents and submissions. The Respondent has also sent in some further documents in response to the appeal, but without any explanation of what they are.
- Mr Wen’s claim was that he arranged with the Respondent for it to ship a number of cartons containing his possessions from Australia to China. He paid the fee. But several of the cartons did not arrive. He attached a number of documents to his claim form including an email chain where he raised the question of the missing cartons with the Respondent but seemingly did not get a satisfactory response.
Crucial finding of fact
- The tribunal gave its decision orally. The tribunal found as a fact that there were 3 missing cartons, but that these had been shipped by the Respondent in compliance with its contractual obligations. The tribunal found that they were being held by Chinese customs pending payment of import duty by Mr Wen. The tribunal found that since Mr Wen had not paid this money to the Chinese customs authority, the 3 cartons had not been released to him.
- At the hearing, both parties appeared by telephone. Mr Wen was calling from China and the Respondent by its manager was calling from South-East Queensland. Both parties gave evidence on oath. Mr Wen went first and was asked questions by the tribunal. Then the Respondent’s manager gave evidence and was asked questions by the tribunal.
- The Respondent’s manager’s explained at the end of her evidence that the 3 missing cartons had been shipped but were held in Chinese customs awaiting payment of import duty by Mr Wen. Immediately after hearing that evidence, the Justices declared that they had “heard enough” and immediately adjourned the hearing to deliberate together. When they returned to the hearing room they delivered their decision, finding as a fact that what the manager said was correct. When Mr Wen tried to interrupt the giving of the decision, they told him he was not allowed to do so.
- The net result of what happened therefore, was that the crucial findings of fact, which resulted in Mr Wen losing his case, emerged for the very first time just a few seconds before the tribunal made its decision. It was unsupported by any paperwork and was contrary to the paperwork which Mr Wen had lodged with his claim, yet Mr Wen had been given no chance to comment on it.
- If Mr Wen had been asked to comment on this, he may have referred the tribunal to the email chain submitted with his claim showing that this explanation had not previously been mentioned by the Respondent.
- This unsatisfactory state of affairs came about partly because Mr Wen, as a consumer suing a trader for an unliquidated claim, had no alternative but to use the tribunal’s application Form 1. Unlike a claim brought on Form 3 (a claim for a debt or liquidated demand) a respondent to a Form 1 claim is not permitted to file a response to the claim. This means in Form 1 claims, it is often at the hearing itself that, for the first time, the respondent describes the defence to the claim and presents any documents relied on.
- This means that particular care needs to be taken when hearing a Form 1 claim to ensure that the hearing is conducted fairly.
- Where, as happened here, the applicant is on the telephone, the problem is compounded because if the respondent wishes to rely on a document at the hearing it will be difficult to ensure fairness to the applicant who may be unable to see it and may never have seen it before.
- Mr Wen’s claim was originally set down for hearing on 11 November 2015, but there was a problem that day. It is possible to see from the file that although Mr Wen called the number he was given, because of a technical problem he was not connected through to the hearing room. The hearing was adjourned to a date to be fixed.
- It is unfortunate that an opportunity was not taken on that day to give directions for the progress of the matter. An appropriate direction would have been for the documents and any evidence in written form that the Respondent relied on was to be provided both to Mr Wen and to the tribunal to be placed on the file.
- Mr Wen anticipated such problems as shown by his application on 24 December 2015. He applied for an order for the Respondent to produce the delivery receipt, bill of lading, shipping order and custom tax receipt. This appears to be the “add-on” application referred to by Mr Wen in his grounds of appeal. Unfortunately, due to an error made by the tribunal, and despite Mr Wen paying the fee of $18.85, this application was never processed.
- It was only one business day before the ultimate hearing that the Respondent’s request to attend the hearing by telephone was considered by the tribunal. Probably because of the close proximity of the hearing, no order was made (as is usually made) when a party attends by telephone, for that party to lodge any material relied on with the tribunal in advance, and to provide this to the other side.
- The result was that both parties were on the telephone at the hearing and only one party (the Applicant) had submitted any documents.
- Those who hear minor civil disputes have a difficult task dealing with their often heavy list but the sequence of events here added further complexity for them to deal with. The problem that day was exacerbated by the poor telephone line from China, the fact that Mr Wen was difficult to understand, and possibly by the fact that the tribunal started the matter later than scheduled and therefore may have been pressed for time. In this stressful situation, unfortunately correct practice was overlooked.
Document admitted in evidence but not known to Applicant
- There was another problem which arose during the hearing. During the evidence, the Respondent mentioned at the hearing that it had a “tracking sheet”. The tribunal was naturally interested to see this document, but because the Respondent was on the telephone, it had to be emailed to the tribunal to enable it to be printed. This document now appears on the tribunal file. Unfortunately no attempt was made to see if Mr Wen could also receive this by email. There was no attempt either to explain to Mr Wen at the hearing the nature of the document which was being produced for the tribunal to look at, nor what it contained.
- Mr Wen is therefore correct when he says that the Respondent’s supporting document was not revealed to him.
Finding about terms and conditions of carriage
- In addition to this difficulty, it was an express finding by the tribunal that the terms and conditions of the contract of carriage included a term that if insurance was not purchased, then the Respondent’s liability for lost goods was limited to their shipping cost. This was a finding seemingly reached relying on the secondary evidence of the manager who gave evidence at the hearing about the contents of a document.
- This was not a straightforward matter. The Respondent’s evidence was that a document with these terms and conditions was sent to Mr Wen and accepted by him and that this was when he paid the invoice in advance. But then the Respondent gave further evidence which cast some doubt on this. It was said that it was Mr Wen’s friend in Australia who received the paperwork. There was some discussion as to whether the friend was acting as agent for Mr Wen.
- The real difficulty here was that none of this was put to Mr Wen. If it had been put to him, he probably would have said what he said in the paperwork attached to his claim, that he did not sign any terms and conditions. He may also have said what he now says in his appeal material, that the Respondent’s case is contradicted by its website advertisement saying that it guarantees to compensate for loss or damage to goods.
Suggestion of second chance to speak not provided
- Mr Wen is also right to complain that having been told to wait for his turn to speak he was not given that chance. He says he was unable to make a closing submission. Effectively he is saying that he was led to believe he would be able to say something about the Respondent’s case but was denied this opportunity.
- What happened was that Mr Wen was told to make notes of the Respondent’s evidence and that he could direct any questions he had after the Respondent had spoken.
- Unfortunately when it came to it, the tribunal neglected to provide Mr Wen his opportunity to come back on what was effectively the Respondent’s case heard for the very first time.
A question of procedural unfairness
- A denial of procedural fairness to the extent as occurred here amounts to a breach of natural justice and is an error of law.
- It is right to give leave to appeal for these reasons. Appeals on errors of law are dealt with under section 146 of the Queensland Civil and Administrative Tribunal Act 2009.
- The Appeal Tribunal can set aside the decision and substitute its own decision, effectively correcting the error of law. This route is not open to me in this case because of the findings of fact which need to be made once all documentation is available to both sides, and after both sides have had a fair chance to give further evidence and make submissions about those documents.
- Alternatively the Appeal Tribunal can set aside the decision and return the matter to the tribunal for it to be heard. Directions can be made for its progress. This is the approach I intend to take and in the circumstances it seems right to specify that it should be heard by a differently constituted tribunal.
- In so far as Mr Wen’s appeal is one on a question of fact only or a question of mixed law and fact, it is not possible to say that the tribunal was plainly wrong on their findings of fact given the evidence that they heard. The difficulty here is that they unfairly concentrated on one side’s case. Hence it would be inappropriate for me to give leave to appeal for Mr Wen’s appeal on a question of fact only, or law and fact. Since his appeal succeeds on a question of law he does not need to succeed on this second limb.
- In conclusion, it seems necessary to say that before the tribunal makes a final decision it should ensure that both sides have had a chance to comment on central factual issues which may turn a case one way or the other. In the busy world of minor civil disputes there will be many less important factual issues which do not need this treatment. Where there are two or more decision makers, sometimes such issues will not emerge until the decision makers deliberate about their decision. If they then realise that there is a central factual issue upon which they have not heard from one side, there is nothing wrong with allowing further evidence to be given so that that side can deal with that issue. In most cases this will be required as a matter of fairness.
- Only then will the tribunal be in the correct position to be able to decide which version of the important factual issues to accept. And only then will it be able to explain to the parties, when giving reasons, why it has reached the view of the facts that it did, and why it has preferred one side’s version of events over the other side’s version.
 Transcript of Proceedings, Xinhua Wen v Best International Tradelink (Queensland Civil and Administrative Tribunal, MCDO2303-15, 18 April 2016) (‘Transcript’) 1-14, line 25.
 Queensland Civil and Administrative Tribunal Rules 2009 r 43.
 Transcript 1-11 line 23.
Ibid 1-11, line 10.
Ibid 1-12, line 35.
 Ibid 1-12, line 35 to 1-13 line 23.
Transcript 1-6, line 35.
- Published Case Name:
Xinhua Wen v Best International Tradelink
- Shortened Case Name:
Wen v Best International Tradelink
 QCATA 128
A/Senior Member Gordon
29 Aug 2016