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Gibson v Select Noosa Real Estate QCATA 141
Gibson v Select Noosa Real Estate  QCATA 141
Select Noosa Real Estate
On the papers
27 September 2016
IT IS THE DECISION OF THE APPEAL TRIBUNAL THAT:
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – BIAS – GENERALLY – where the applicant repeatedly failed to appear before the tribunal – where the tribunal member made an interlocutory decision in the absence of the applicant – where the tribunal member revoked the applicant’s leave to appear remotely on behalf of his parents in a matter – where the applicant seeks to pre-emptively require a tribunal member to recuse themselves for demonstrated bias – whether the applicant was afforded procedural fairness – whether the tribunal’s comments could create an apprehension of bias
APPEAL AND NEW TRIAL – RIGHT OF APPEAL – WHEN APPEAL LIES – FROM INTERLOCUTORY DECISIONS – GENERALLY – where the applicant had his permission to appear remotely in a matter revoked – where the applicant seeks leave to appeal that interlocutory decision for reason of bias – whether there is substantial injustice to be remedied by an exercise of the leave discretion
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 14, 28(3), 57(3)
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 208 CLR 507
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427
APPEARANCES and REPRESENTATION:
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 application for leave to appeal procedural decisions revoking permission to attend a proceeding remotely and for an order barring an allegedly biased tribunal member from presiding over the adjourned hearing.
- The applicant and his elderly parents are the respondents to a minor civil claim. The amount allegedly owing is $14,053.50 for exclusive real estate agency commission on a house sale.
- The validity and enforceability of the appointment to sell and, thus, the legal liability of the applicant as agent and his parents as principle, are in issue.
- The case was set down in December 2015 for hearing at 9.00am on 12 February 2016. On 9 February 2016, the applicant (a partner of a major Australian law firm who has been an Australian legal practitioner for over twenty years) was given permission to represent his infirm parents at the hearing relieving them of any need to appear personally. On 18 January 2016, the applicant and his parents successfully applied to attend the hearing by phone. The applicant is the only proposed witness in the respondent’s case.
- At 1.41pm on 11 February 2016, the applicant emailed the tribunal advising that he was going home to bed with a virus and requesting that the listing be administratively adjourned in view of the likelihood that he would not be in a fit state to attend the hearing. At 8.01am the next day, he emailed the registry again confirming he was still “unwell” and asking that his informal adjournment application be forwarded to the presiding magistrate “with (my) apologies”. A mobile contact number was provided for the tribunal to contact him directly about his adjournment request.
- The matter was called on for hearing at 11.01am on 12 February 2016. The tribunal rang the applicant’s office and was initially told that he was (or, at least, had been) in earlier in the morning but had left for the day and was only contactable via email.
- The tribunal informed the office manager that the hearing could proceed ex parte if the applicant did not make contact promptly. At 11.10am, the tribunal decided to adjourn the hearing to 11 March 2016 but because of credibility issues “et cetera”, withdrew the applicant’s leave to represent his parents and ordered him (and them) to appear in person on the adjourned date.
- At 11.12am, the applicant telephoned the tribunal. His exchange with the tribunal at T1-6:25-45 is reproduced below:
“MR GIBSON: Your Honour, nothing has been conveyed to me about the application---
BENCH: Mr ---
MR GIBSON: --- for the adjournment.
BENCH: I’m in the middle of a court. You were meant to appear here or be available by phone at 9 o’clock. I rang your offices; they said you were in but you were in a meeting.
MR GIBSON: Your honour ---
BENCH: Now, I’m not sure—they said that—they may be mistaken etcetera. I then rang your mobile. I then got messages. This court is not at your beck and call. And to be honest, I think you are just trying to delay these proceedings.
I’ve made my order. You weren’t here; you didn’t appear; you had nobody appear for you; the order is made. And I will expect to resolve this by hearing all of the facts of the case on the 11th of March. All right. Good morning.”
- He contends that the tribunal did not observe the rules of natural justice or afford procedural fairness as required by s 28(3)(a) QCAT Act. In deciding to revoke leave to appear remotely at the adjourned hearing, the applicant claims that the tribunal denied him natural justice by not giving him a chance to be heard on the revocation, did not give any reasons, acted irrationally, failed to consider the email advising the court that he would be ill, disregarded the phone call he made advising the Registrar of the applicant’s location and on what phone number he was to be called and ignored the practicalities of the situation.
- In the proposed grounds of appeal the applicant complains that the tribunal snapped at him in open court, acted rudely and abrasively, “attacked his creditability” (sic) and “defamed” him, before hanging up on him. He asks the appeal tribunal to:
- reinstate the previous orders for remote appearance; and
- recuse the tribunal member from hearing the case for bias and because of “… the applicant lodging a formal complaint with the Chief Magistrate against her conduct as she is aware of”.
The respondent’s position
- The respondent submits that the applicant denied himself procedural fairness by not appearing despite several attempts to make contact when there was nothing to stop him from appearing by phone. The agency also notes the applicant’s alleged pattern of not showing up at hearings and causing adjournments for various reasons, including being sick and having to attend to other court-related matters; and alleges he did not sound sick when contacted by the court.
- Except in limited circumstances, a matter proceeds to hearing on the date set. Absence or lateness normally have to be excused by proof that it was unavoidable. The mere assertion that a party is not well enough does not have to be accepted at face value even from a practicing lawyer.
- The applicant offered no formal proof of unavoidable unavailability, did not tender a medical certificate or other evidence verifying his viral infection and its effect. Nor did he explain why he could not attend the hearing by phone at 9.00am to ask for an adjournment (even if he was genuinely sick) yet was able to ring in at 11.12am or, being a lawyer himself, instructing a town agent to appear and ask for an adjournment on the same terms.
- The tribunal workload is a heavy one and is not easy to manage. Adjournments without purpose or justification are inconsistent with the tribunal’s function and objects. Despite all this, the tribunal granted the applicant the indulgence of an adjournment instead of giving judgment in default of appearance.
- The applicant and his parents do not have a right to appear remotely. Conducting tribunal proceedings wholly or partly by remote conferencing or similar methods is exceptional and reserved for cases of proven necessity, such as infirmity or distance but it is at the discretion of the tribunal having regard to the objects of the QCAT Act and functions of the tribunal in dispensing justice.
- The tribunal was perfectly entitled to reconsider the question of the mode of the applicant’s attendance at the adjournment hearing; especially if credit was in issue. However, the applicant had a reasonable expectation that the adjourned hearing would be conducted on the same procedures as the original was to have been and should have been given the chance of persuading the tribunal not to change them even if there were good reasons for doing so. Denying procedural fairness to a party is legally wrong. Revoking the remote conferencing order peremptorily was procedurally unfair.
- Nonetheless, legal error of itself does not mean there is substantial injustice to be remedied on appeal.
The leave discretion
- The requirement of leave to appeal minor debt decisions is designed to to preserve finite judicial and administrative resources, manage caseloads and give practical expression to the finality policy. Appellable error is necessary but not sufficient. Leave is not granted for the asking and is rarely suitable to review procedural orders in an ongoing proceeding.
- Any actual forensic or other disadvantage likely to be suffered by the applicant (or his parents) is purely prospective and can easily be averted by quicker, more appropriate options for relief than appealing. These include applying to the tribunal constituted for the hearing for the procedural decision to be vacated, or for new directions to be made as to the mode of attendance and giving evidence or producing documents at the adjourned hearing. Leave on the procedural point is, therefore, not justified.
The bias issue
- Allegations of bias based on supposed prejudgment or prejudice go directly to jurisdiction and the integrity of the tribunal. They should not be lightly made especially by a legal practitioner.
- As Hayne J noted in Minister for Immigration and Multicultural Affairs v Jia Legeng:
“Saying that a decision-maker has prejudged or will prejudge an issue, or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has several distinct elements at its roots. First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision-maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case.”
- Holding or expressing adverse definite views about character, conduct or credit of a litigant in previous proceedings does not always disqualify a tribunal member from hearing a subsequent case. Nor does the mere fact that he or she has previously made adverse rulings, findings or criticisms against a party (or key witness) on a prior occasion; especially when bias is alleged on the basis of implication from the nature or tone of remarks made by a busy and understandably irate tribunal member trying to manage a full list and meet competing demands under time and other pressures.
- The duty to disqualify for good cause is matched by an equal duty not to do so without proper reason. It is not appropriate to ask an appeal tribunal to intervene in an ongoing proceeding to stop a tribunal from sitting, just because a party had had an unpleasant or unsatisfactory experience before it.
- Viewed in their proper context, the tribunal’s comments clearly reflected scepticism about the reasons for the applicant’s non-attendance, but did not defame or disparage his character, trustworthiness, cooperativeness or credibility as either a witness or litigant. Nor did they relate to facts relevant to the applicant’s legal liability to pay commission at the adjourned hearing.
- The appearance of impartiality is not compromised here. A fair-minded lay observer would not have apprehended that the tribunal might not bring an impartial mind to resolving the dispute at a genuine hearing of the merits conducted and decided according to law.
- Notably, in Michael Wilson & Partners Ltd v Nicholls, the High Court held that the same judge hearing a series of ex parte applications was not precluded by pre-judgment because the factual questions determined in the interlocutory stages were quite separate from those arising in the later litigation.
- In any case, the settled practice is for a dissatisfied party to bring a properly prepared and evidence based prehearing disqualification application before the suspected tribunal and ruling if there are valid grounds appeal the adverse ruling. Strictly speaking, unless and until a first instance recusal application is made and dismissed, no appellable “decision” has been made.
- As none of the proposed grounds have any reasonable prospects of succeeding, leave to argue them on appeal is not warranted and the application to do so is refused.
- Published Case Name:
Gibson v Select Noosa Real Estate
- Shortened Case Name:
Gibson v Select Noosa Real Estate
 QCATA 141
27 Sep 2016