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Mesic v Kasovic QCATA 37
Mesic v Kasovic  QCATA 37
On the papers
Senior Member Stilgoe OAM
5 May 2016
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – MINOR DEBT – where loan – where loan not evidenced in writing – where telephone conversation confirming loan – where telephone conversation recorded without consent – where tribunal ordered repayment – whether grounds for leave to appeal
Telecommunications (Interception and Access) Act 1979 (Cth) ss 6-7.
Invasion of Privacy Act 1971 (Qld) ss 43(1), 46
Dearman v Dearman (1908) 7 CLR 549
Bunning v Cross  HCA 22
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 11 December 2015, the Tribunal, sitting in its minor civil disputes jurisdiction, found that Nedzad Mesic borrowed $10,000 from Vasva Kasovic. The Tribunal ordered Mr Mesic pay Ms Kasovic $10,000 plus the filing fee.
- Mr Mesic 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.
- Mr Mesic has four grounds of appeal. He says that the Tribunal had no jurisdiction to hear the dispute. He says the Tribunal erred in accepting a transcript of a telehone conversation. He says the Tribunal erred in fact. He says that the Tribunal did not provide procedural fairness.
- Mr Mesic has filed a letter from his psychiatrist in support of his application for leave to appeal. The letter is relevant to Mr Mesic’s submision that he was not given procedural fairness.
- The Appeals Tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant seeking leave to adduce such evidence must satisfy three tests. Could the parties have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?
- I read the transcript of the hearing. Although there is little evidence of the matters Mr Mesic wants to raise, and I am not sure that the letter will have an important impact on the results of the case, I will allow it for the purpose of considering whether the Tribunal gave Mr Mesic procedural fairness.
Did the Tribunal have jurisdiction?
- Mr Mesic accepts that the Tribunal has jurisdiction for minor debts. He says, however, that the Tribunal did not have jurisdiction to hear this dispute because there was never an acknowledgement of debt and the amount of the debt remains in dispute.
- The Tribunal’s jurisdiction to hear a dispute about a debt does not depend upon proof of the debt. All that is required is a claim to recover a debt. If a party had to prove a debt before bringing a claim for a debt, there would be little point in the Tribunal’s jurisdiction. The very point of bringing a claim in the Tribunal is to prove whether there was a debt and, if so, the amount of the debt.
- The Tribunal had jurisdiction to hear the claim. The Tribunal was not in error.
Did the Tribunal err in accepting a transcript of a telephone conversation?
- Mr Mesic says that the recording of the telephone conversation was not made available to him prior to the hearing. He says that it was not certified as correct by a properly certified translator.
- It is true that Mr Mesic did not have access to the recording of the conversation, although Ms Kasovic filed a copy of the transcript with her claim. The response filed by Mr Mesic and his wife Dusica Mesic acknowledged the fact of the transcript but says it was obtained without consent (if it was an accurate transcript). Mrs Mesic also said the transcript was irrelevant.
- It is true that the transcript is not properly certified by the translator. That does not mean the Tribunal should reject it; it means that the Tribunal should be careful about its contents. The Tribunal acknowledged the defects in the transcript but then took steps to verify its contents.
- The Tribunal took the trouble of playing part of the recording in the hearing. Mr Mesic agreed that it was his voice on the recording. The Tribunal asked the interpreters to confirm that the transcript was an accurate record of the conversation. Interestingly, Mr Mesic’s interpreter confirmed the accuracy of the transcript whereas Ms Kasovic’s interpreter was less certain. However, both interpreters confirmed that they heard a reference to a loan of $10,000.
- Mr Mesic also says that he did not give permission for the conversation to be recorded and that this is a breach of the Privacy Act 1988 (Cth). The Privacy Act protects an individual’s information when it has been collected by an agency or organisation covered by the Act. It does not apply between individuals.
- However, s 46 of the Invasion of Privacy Act 1971 (Qld) states that a person may not give evidence of a private conversation that came to that person’s knowledge through the use of a listening device used in contravention of s 43. Section 43(1) makes it an offence to record a private conversation without consent. But there is no breach of s 43(1) if the person who recorded the conversation is a party to the conversation. The Invasion of Privacy Act does not assist Mr Mesic.
- It is an offence under Commonwealth law for a private person to record a telephone conversation without the knowledge of the other person. But that does not mean that the Tribunal cannot consider it. In Bunning v Cross the High Court held that whether evidence unlawfully obtained should be admitted was a matter for the discretion of the Tribunal.
- Mr Mesic’s only argument, then, is that the recording was fabricated. But at the hearing, when the Tribunal confirmed the accuracy of the transcript, the tribunal was told:
The only thing I would like to add is that I’m happy to pay back the $2000 that we borrowed from them. The $10,000 never happened.
- The Tribunal accepted that the transcript was accurate. It was entitled to do so, given Mr Mesic’s changing stance on the existence of a loan.
- The transcript may not have been the best evidence of a conversation, but it was evidence. The Tribunal tested the truth of that evidence and I am satisfied that it was entitled to rely on that evidence. I am also satisfied that the Tribunal was entitled to rely on it despite the fact that it may have been obtained unlawfully.
Did the Tribunal err in fact?
- At first, Mr Mesic denied there was a loan at all. After the Tribunal verified the transcript of the telkephone conversation, Mr Mesic admitted the loan but denied the amount. The task for the Tribunal was to decide how much Mr Mesic loaned to Mr and Mrs Mesic.
- Mr Mesic says that there was nothing in writing to support Ms Kasovic’s claim. She did not have any receipts, she did not have a statement from the friend who loaned her $5,000, and her statutory declaration was not properly sealed. All of these statements are true. A loan does not have to be in writing and loans between friends are often not in writing. That does not mean that there was no loan, or that the loan was unenforceable. The Tribunal had oral evidence from both sides. The Tribunal accepted Ms Kasovic’s version of events, based on the transcript of the conversation. The Tribunal was entitled to come to that conclusion and I can find no compelling reason to come to a different view.
- Mr Mesic says he never accepted any money from Ms Kasovic. The Tribunal took a different view. The evidence can support a finding that both Mr and Ms Mesic accepted the loan and I can find no compelling reason to come to a contrary view.
Was there are lack of procedural fairness?
- Mr Mesic says that, at the beginning of the hearing, the Tribunal assisted Ms Kasovic by declaring that her husband was a witness. The transcript shows that Ms Kasovic told the Tribunal that her husband was present when she made the loan. The Tribunal told the parties that any witnesses would have to stay outside. Ms Kasovic asked if that included her husband; it did. The Tribunal was not taking sides; it was protecting Mr Mesic by ensuring that Mr Kasovic gave independent evidence.
- Mr Mesic says that the Tribunal stopped him and his wife from expressing themselves fully. He says that they felt unvalued and “talked down from” so became silent. The Tribunal invited Mr and Ms Mesic to cross-examine Mr Kasovic. Mr Mesic said “no” because he did not know what to ask. The Tribunal then explained that Mr Mesic should put propositions to Mr Kasovic to test the truth of those propositions. That is a difficult task for any party and it is clear that Mr Mesic had trouble forming the right questions. The Tribunal helped him, albeit by interrupting. Mr Mesic may have interpreted that action as unfair but I do not.
- At the end of that exericse, Mr Mesic started to tell the Tribunal his side of the story. The Tribunal did tell Mr Mesic that it was not up to his evidence yet. Mr Mesic accepted the Tribunal’s comments and proceeded to ask Mr Kasovic more questions. The Tribunal stopped Ms Mesic interrupting the proceedings but neither Mr Mesic nor his wife fell silent. The Tribunal told Mr and Ms Mesic to “wait”, and they did, but they did not fall silent.
- Mr Mesic says the Tribunal should have taken into acount all facts when making a decision: level of education; fear of authority; cultural differences; respect for elders; poor English; and lack of understanding of legal terms.
- The psychiatrist, in his letter of 8 January 2016, states that Mr Mesic was imprisoned during the Bosnian war, and this makes him distrust and fear authority figures. The psychiatrist says that this would be “very evident” in a court of law. He also says that Mr Mesic’s medication tends to sedate him, particularly in the afternoons, so that he would not be at his best.
- The Tribunal often deals with parties who do not have a high level of education. The Tribunal often deals with parties who have a different cultural background. It has a positve obligation to ensure that proceedings are conducted in a way that responds to cultural diversity and a different linguistic background.
- Mr Mesic had the assistance of an interpreter. He was supported at the Tribunal by his wife. The transcript shows that, where possible, the Tribunal used plain language. As I have already indicated, the tribual explained the process of cross-examination to Mr Mesic and helped him through that process. Mr Mesic was not silent. He did not, as the psychiatrist suggested, simply agree with the Tribunal because he did not understand what was happening. The dispute was about a loan. The legal principles involved in a loan are not complex. There is nothing in the transcript to suggest that the Tribunal failed to give Mr Mesic procedural fairness and I can find nothing else to suggest that Mr Mesic was denied an opportunity to put his case.
- There is no reasonably arguable case that the Tribunal was in error. Leave to appeal should be refused.
QCAT Act s 142(3)(a)(i).
Pickering v McArthur  QCA 294 at .
Clarke v Japan Machines (Australia) Pty Ltd  1 Qd R 404 at 408.
 QCAT Act s 12(4)(a).
QCAT Act s 28(3)(b).
 Transcript of Proceedings, Nedzad Mesic v Vasva Kasovic (Queensland Civil and Administrative Tribunal, MCDO1945/15, Adjudicator Howe, 11 December 2015), page 1-17, lines 27 – 28; page 1-18, lines 41 – 46; page 1-19, lines 26 – 27.
 Transcript, page 1-21, lines 30 – 46.
 Transcript, page 1-9, lines 15 – 23.
 Transcript, page 1-24, line 42.
 Transcript, page 1-24, line 44 to page 1-25, line 1.
 Transcript, page 1-25 line 14 to page 1-26, line 46.
 Invasion of Privacy Act.
 Invasion of Privacy Act s 43(2).
 Telecommunications (Interception and Access) Act 1979 (Cth) ss 6-7.
  HCA 22.
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 1-6, lines 20 – 23.
 Transcript, page 1-6, lines 29 – 30.
 Transcript, page 1-6, lines 32 – 35.
 Transcript, page 1-13, lines 38 – 39.
 Transcript, page 1-14, lines 3 – 9.
 See, e.g., Transcript, page 1-15.
 Transcript, page 1-16, line 27.
 Transcript, page 1-17, line 13.
 Transcript, page 1-18, lines 24 – 28.
QCAT Act s 29(1)(c).
- Published Case Name:
Mesic v Kasovic
- Shortened Case Name:
Mesic v Kasovic
 QCATA 37
Senior Member Stilgoe OAM
05 May 2016