Edwards v Edgar & Wood Solicitors
[2018] QCATA 154
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- Unreported Judgment
- Edwards v Edgar & Wood Solicitors[2018] QCATA 154
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Edwards v Edgar & Wood Solicitors[2018] QCATA 154
Edwards v Edgar & Wood Solicitors[2018] QCATA 154
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Edwards v Edgar & Wood Solicitors [2018] QCATA 154 |
PARTIES: | BRIAN EDWARDS (applicant/appellant) |
| v |
| EDGAR & WOOD SOLICITORS (respondent) |
APPLICATION NO/S: | APL389-17 |
ORIGINATING APPLICATION NO/S: | Q10/16 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 26 September 2018 |
HEARING DATE: | 13 September 2018 |
HEARD AT: | Brisbane |
DECISION OF: | Justice Carmody |
ORDERS: | The application for leave to appeal is refused. |
CATCHWORDS: | APPEAL – MINOR CIVIL DISPUTE – where the applicant seeks leave to appeal a decision dismissing his consumer claim for a refund of $500 paid to the respondent to obtain a brief of evidence from the Dalby Police – where the applicant has not articulated proposed grounds of appeal or errors in the tribunal’s decision-making – where a failure to consider undisclosed evidence is not a valid ground of appeal – whether the respondent is a “trader” and the tribunal had jurisdiction to determine a consumer dispute between the parties – whether the task performed by the respondent on behalf of the applicant can be ordinarily regarded as the exercise of a discipline – where the outcome of the jurisdictional point does not affect the application for leave to appeal – where the application is dismissed Early Property Group Pty Ltd t/a Early Group Valuers v Cavallaro [2010] QCATA 65 Morales v Murray Lyons Solicitors (a firm) [2010] QCATA 87 |
APPEARANCES: | |
APPLICANT/APPELLANT: | Mr Edwards |
RESPONDENT: | Mr Tribe |
REASONS FOR DECISION
- [1]The application arises out of a dispute about liability for the cost of an evidence list (annexed to the Form 39 filed on 27 November 2017) concerning a serious assault the applicant was charged with by Dalby Police.
- [2]Despite being charged and paying $500 for “professional fees for advice on evidence” the applicant now complains that he did not get the information he paid for and filed a consumer-trader claim for a refund on 1 June 2016.
- [3]The matter has a long procedural history but by 31 October 2016 it was adjourned to the registry to be relisted by either party within 14 days’ notice but none was made until 10 October 2017 (nearly a year later).
- [4]The tribunal refused to relist and dismissed the claim on 30 October 2017 noting that $500 worth of legal work had been “duly performed”.
- [5]The applicant requires leave to appeal from that decision. In practical terms this requirement means that he has the onus of demonstrating a reasonably arguable case of legal, factual or mixed error in the tribunal’s dismissal decision and substantial injustice if not corrected on appeal.
- [6]The applicant’s Form 39 does not articulate any proposed grounds of appeal but it became obvious at the hearing that he believes he was denied procedural fairness because the tribunal did not consider undisclosed confidential information about a related police investigation.
- [7]A decision-maker cannot fall into error by failing to consider material information not in evidence or that it does not know (or have any reason to suppose) exists. The transcript reveals that the tribunal gave a full airing to the complaints and submissions the applicant did make at the hearing.
- [8]Leave to appeal is refused because it is not reasonably arguable that the hearing was unfair or the order of dismissal was not reasonably open on the material presented.
- [9]A moot jurisdictional point about whether a lawyer is a trader within Schedule 3 of the QCAT Act was not taken by the respondent at first instance or on the leave application.
- [10]Whether the respondent is a “trader” or not is a mixed question of law and fact.
- [11]A trader is generally a person who has a business that supplies goods or provides services. However, under the proviso a service provider is not a trader in relation to services provided in the exercise of a “discipline” not ordinarily regarded as within the field of “trade or commerce”.
- [12]The phrase “trade or commerce” is not defined by the QCAT Act but has been held to include giving professional engineering advice.[1] For the Australian Consumer Law which commenced in 2011 the term explicitly covers “any business or professional activity” and unquestionably applies to lawyers providing legal services. The consumer guarantees in ss 60-62 are laws of Queensland by virtue of amendment to the Fair Trading Act 1989 (Qld). Also, in addition to the remedies under ss 328 and 420(b) under Legal Profession Act 2007 (Qld), professional legal services provided to an individual client (by a solicitor, at least) are probably consumer contracts for the purposes of the unfair contracts laws.
- [13]The word “discipline” is commonly used in the education context to denote an organised “branch of instruction or learning”[2] but it also refers to enforced compliance with ethical norms or prescribed standards of professional conduct.
- [14]In Early Property Group Pty Ltd t/a Early Group Valuers v Cavallaro[3] (Early Property) the appeal tribunal constituted by the Deputy President held that although engaged in a trading or commercial activity a property valuer providing a professional report was not a trader because he was acting in the exercise of an exempt discipline.
- [15]Her Honour said at [21]:
A valuer’s opinion may well be a product that could be used in trade or commerce but it is produced as a result of intellectual activity. A valuer brings an independent mind to the question of land value. In expressing an opinion, a valuer must apply the methodology and principles developed and accepted in the discipline of valuation. In my view, the act of providing that opinion is an act in the exercise of a discipline not ordinarily regarded as within the field of trade or commerce. (Emphasis added).
- [16]The tribunal in Morales v Murray Lyons Solicitors (a firm)[4] (Morales) considered the position of solicitors providing litigation services to be much the same.
- [17]Early Property and Morales fix on the nature of the discipline being exercised (e.g. law) and service provided (e.g. professional advice).
- [18]On their reasoning a lawyer is not a trader in relation to services involving independent “intellectual activity”, the application of developed and accepted “methodology and principles” to answer a question, or calling for “professional skill” and judgment in doing manual tasks.[5]
- [19]Law may have been an academic discipline or branch of knowledge that was historically or traditionally outside the field of “trade or commerce” (even as late as 2010 when Early Property and Morales were decided) but its contemporary exercise is probably no longer ordinarily regarded that way, at least, in relation to the provision of administrative services involving no specialist learning, knowledge or intellectual skill by legal a firm run on conventional business principles with a view to profit.
- [20]On this basis, the respondent is a trader in relation to the provision of the services in issue either because it was not exercising a discipline in providing them or, if it was, that discipline (law) is not ordinarily regarded as outside the field of trade or commerce these days. The tribunal, therefore, acted within jurisdiction in hearing and deciding the claim as a consumer trader dispute.
- [21]Even if the contrary is true the applicant still fails in his bid for leave because the order is a legal nullity[6] and there is nothing to set aside or correct on appeal.
Footnotes
[1] Bond Corp Pty Ltd v Theiss Contractors Pty Ltd (1987) 71 ALR 615, 620.
[2] PE Nygh and P Butt (eds), Australian Legal Dictionary (Butterworths, 1997).
[3] [2010] QCATA 65 at [12], [17] and [20].
[4] [2010] QCATA 87. Other examples of person who QCAT has previously decided do not meet the definition of traders are: podiatrists (see McDonald v Kenmore Podiatry Pty Ltd [2012] QCAT 126); and professional town planning consultants (see Davy v Ryter Planning Pty Ltd [2010] QCATA 96).
[5] Cf. Prestia v Aknar (1996) 40 NSWLR 165, [22]-[23].
[6] Craig v South Australia (1995) 184 CLR 163.