Upson v Purdie[2018] QCATA 164

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   On 4 April 2014, Mr Upson brought a claim in the Tribunal’s minor civil dispute jurisdiction against Harris Sushames Lawyers (‘the firm’) for between $10,000 and $20,000 which he says he paid to the firm on account of legal fees, but which should have been returned to him. Mr Upson’s claim was given the claim number MCDO751-14.
2. [2]
   On 6 May 2014 the firm lodged a response to Mr Upson’s claim saying that the firm had provided legal services to Mr Upson and charged properly for them under a valid costs agreement and therefore was entitled to retain this money.
3. [3]
   On 16 June 2014, the parties attended a mediation in the Tribunal. On that day, in the mediation, the parties signed two agreements. It appeared from these agreements that the claim may have been compromised and settled.
4. [4]
   On 14 November 2014 the file was referred to an Adjudicator. On 18 November 2014 the Adjudicator made an order stating ‘application withdrawn’. Internally MCDO751-14 was marked as finalised and the file was put away.
5. [5]
   On 18 September 2017, Mr Upson filed a Form 40 (application for miscellaneous matters) in which effectively, he asked for MCDO751-14 to be heard by the Tribunal.
6. [6]
   On 17 October 2017, the Form 40 application was referred to an Adjudicator who, having seen the order of 18 November 2014, refused it.
7. [7]
   Mr Upson now appeals from the Tribunal’s decision made on 17 October 2017. Although the parties to MCDO751-14 and to this appeal are different, no point has been taken by Mr Purdie as the named respondent in the appeal and this appears to be because he is the principal of the firm.^[1]
8. [8]
   In this appeal we have decided that MCDO751-14 was not withdrawn by Mr Upson. The Tribunal was therefore wrong to make the order it did on 14 November 2014. This also means that the Tribunal was wrong on 17 October 2017 to refuse Mr Upson’s Form 40 application.
9. [9]
   In order to explain our reasons for reaching this conclusion we need to recite what happened in some detail.

Background to the minor civil dispute proceedings

10. [10]
    One of the agreements signed during the mediation held on 16 June 2014 has been described as a ‘settlement agreement’. The Tribunal only has the second page of that agreement. It can be seen from this document however, that:-

    1. (a)
       The parties deleted standard terms referring to filing the settlement agreement in the Tribunal under s 85 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’);
    2. (b)
       The parties expressly agreed not to file the agreement in the Tribunal; and
    3. (c)
       The parties agreed to sign and file a separate withdrawal agreement in the Tribunal.
11. [11]
    No doubt pursuant to (c) above, there is a second agreement on the file. This is titled ‘Withdrawal Agreement’. This recites that the parties have agreed to resolve their dispute and that as a result the applicant (i.e. Mr Upson) agrees to withdraw the application, to which the respondent agrees, and that an order will be sought from the Tribunal giving leave for the application to be withdrawn. Then there is this clause:-

6.Parties seek that the order for withdrawal is to take effect from the 15 November 2014 to allow for the agreed terms of settlement to be carried out. The application will be withdrawn on that date pursuant to this agreement unless a party notifies the tribunal in writing prior to this date that agreement has not been complied with.

12. [12]
    At this point we would point out that the references in the document referred to above, to seeking leave of the Tribunal for the application to be withdrawn suggest that the document was drafted with an earlier version of the QCAT Act and Rules in mind than were in existence at the time it was signed.
13. [13]
    Effective from 1 January 2014 the method of withdrawal for minor civil disputes in the tribunal was changed. Prior to that date, all applications for withdrawal required leave of the tribunal. A withdrawal would be effected by an application on the approved form seeking leave to withdraw and providing copies to the other party. Then upon the tribunal giving leave, the withdrawal would take effect.^[2]
14. [14]
    After the amendments to the QCAT Act and Rules, the need to apply for leave to withdraw was removed in most cases. The new procedure was that an applicant does not have to apply for leave to withdraw; instead the applicant merely withdraws the application. The withdrawal may be done ‘in the way stated in the rules’.^[3] The relevant rule states that the withdrawal may be done by filing a notice in the approved form (Form 58) and giving it to all other parties.^[4]
15. [15]
    In 2014 the approved Form 58 had to be downloaded from the tribunal’s website and printed out. Alternatively printed out copies could be obtained from the tribunal, or it was also available by email. Now it is also available as an online form.
16. [16]
    It is significant that the arrangements for withdrawal of the application agreed at the mediation did not necessarily follow either the old or the new statutory procedure. Instead, as can be seen from the withdrawal agreement and in particular clause 6 of that agreement, the parties had agreed that there would be a withdrawal on a future date unless a party notified the Tribunal that the settlement agreement had not been complied with.
17. [17]
    The overall effect of the withdrawal agreement was that there was a condition subsequent in the withdrawal agreement: if a party notified the Tribunal that the settlement agreement had not been complied with prior to the date in clause 6, then the application would not be withdrawn after all. It appears that this gave the parties time to comply with the terms of settlement.
18. [18]
    On 14 August 2014, Mr Upson informed the Tribunal by email that the firm had not complied with the settlement agreement. Unfortunately this document was either not on the file at the time the decision of 18 November 2014 was made, or was overlooked. On 11 November 2014, some four days before the withdrawal was to take effect, the Tribunal asked both parties by email whether the agreement had been complied with and warned that the ‘matter will be withdrawn’ on 15 November 2014 unless the Tribunal was notified in writing about the non-compliance. The Tribunal did not receive a reply to that email.
19. [19]
    On 14 November 2014 the file was referred to an Adjudicator who decided that an order should be issued stating ‘application withdrawn’. That order was made by the Tribunal on 18 November 2014. Internally the application was marked as finalised and the file was put away.
20. [20]
    On 18 September 2017, Mr Upson filed the Form 40 application for miscellaneous matters in the Tribunal.

Appeal ground: error of fact in the Tribunal’s decision

21. [21]
    Mr Upson says that Mr Purdie ‘did not comply with QCAT’.^[5] In his recent affidavit filed in this appeal, Mr Upson says that on 14 August 2014 he emailed the firm and the Tribunal stating that he objected to the material sent by the firm on the basis that it failed to comply with the relevant ‘General Agreement’.^[6] Mr Upson says that since that time (i.e. 14 August 2014) and up to the filing of his Form 40 application on 18 September 2017 he was trying to find out what had happened to his claim.^[7]
22. [22]
    We accept Mr Upson’s ground of appeal that identifies an error of fact has been established. The record shows that after the Tribunal received Mr Upson’s Form 40 application, the matter was referred to an Adjudicator who dismissed it, having considered it ‘on the papers’.^[8] The Adjudicator was asked by Mr Upson to give reasons for the decision and this was done subsequently under the provisions which permit reasons to be requested and given afterwards.^[9] The Adjudicator decided he was functus officio (having fulfilled the function) because of the Tribunal’s order of 18 November 2014. The Adjudicator decided that Mr Upson’s application was withdrawn pursuant to a withdrawal agreement signed by the parties on 16 June 2014, which was the product of an unpublished underlying settlement agreement between the parties. The Adjudicator found that the dispute having been compromised or settled, and the withdrawal order having been made, ‘there is simply no longer any proceeding on foot in this matter in which the Tribunal can make any further orders’.^[10]
23. [23]
    The Adjudicator who decided on 17 October 2017 to refuse the Form 40 application was clearly misled by the earlier incorrect order recording that the application had been withdrawn. Overall, the Tribunal made an error of fact on 17 October 2017. This is because there was the condition subsequent in clause 6 of the withdrawal agreement that was satisfied by Mr Upson’s email to the Tribunal of 14 August 2014. In that email Mr Upson notified the Tribunal that the other party had not complied with the settlement agreement. This meant that Mr Upson was no longer withdrawing his application.
24. [24]
    We consider that an order of the tribunal stating ‘application withdrawn’ has no effect unless the application is indeed withdrawn. This is because the tribunal cannot withdraw an application, as this is for the applicant to do in accordance with s 46 of the QCAT Act. The most such an order may do in an appropriate case is to record the fact of a withdrawal. In doing so it may impliedly dispense with the usual procedural requirements required for a withdrawal.^[11]
25. [25]
    It follows from the above that MCDO751-14 was in fact never withdrawn. It remains before QCAT and should be heard.

Disposal of the appeal

26. [26]
    The net result of the unfortunate circumstances set out above is that there has been considerable delay in Mr Upson’s application MCDO751-14 being resolved by the Tribunal. We are naturally concerned with the delay of nearly three years before Mr Upson applied on Form 40, but he has explained that he was unaware at times about what had happened, then confused about how things could be put right, and was also told different things at different times by the Tribunal.^[12]
27. [27]
    We do not think that Mr Upson in seeking leave to appeal the Tribunal’s decision, should be prejudiced by the delay where there was a mistake of fact by the Tribunal as to the parties’ intentions with respect to the matter in particular whether the parties had resolved the matter. Mr Upson should therefore have his application dealt with.
28. [28]
    In the circumstances we are satisfied the general principles for granting leave to appeal have been established: is there a reasonably arguable case of error in the primary decision;^[13] is there a reasonable prospect that the applicant will obtain substantive relief;^[14] is leave necessary to correct a substantial injustice to the applicant caused by some error;^[15] is there a question of general importance upon which further argument and a decision of the appellate court or tribunal, would be to the public advantage.^[16]
29. [29]
    Leave is required in this matter because the decision in question was in a proceeding for a minor civil dispute but also because the decision was not the Tribunal’s final decision in the proceeding.^[17] We allow the appeal because of the Tribunal’s error of fact when making the decision on 17 October 2017. When deciding an appeal on a question of fact as we have done in this appeal, we must decide it by way of rehearing.^[18]
30. [30]
    On rehearing the Form 40 application, we revoke the Tribunal’s order made on 18 November 2014 (which stated that the application is withdrawn) and declare that MCDO751-14 is not withdrawn and remains before the Tribunal for determination.
31. [31]
    We will make some directions for the final determination of this matter and explain the reasons for our directions below.

Settlement agreement- the doctrine of ‘accord and satisfaction’

32. [32]
    The Tribunal does not have a complete copy of the settlement agreement. This document is clearly relevant to the proceedings because often a settlement agreement will end the applicant’s right to pursue a claim. For example, it may mean the cause of action has ended, and replaced by the rights and obligations contained in the settlement agreement, by the doctrine of ‘accord and satisfaction’.^[19]
33. [33]
    In this case it is important for the Tribunal to decide in the first instance whether the parties have compromised the matter by reason of signing the settlement agreement. We therefore direct that the Tribunal consider the effect of the settlement agreement as a preliminary issue. We also direct that the parties provide to the Tribunal a complete copy of the settlement agreement.

Whether the tribunal has jurisdiction to hear the claim – who is a ‘trader’?

34. [34]
    When dealing with minor civil dispute claims of this type, the tribunal only has jurisdiction to deal with claims in respect of debts and liquidated demands of money, and consumer-trader and trader-trader claims.^[20] The definition of ‘trader’ excludes a person who in making the supply ‘acts in the exercise of a discipline that is not ordinarily regarded as within the field of trade or commerce’.^[21] It has been held that a firm of solicitors is not a ‘trader’.^[22]  Hence it is likely that the Tribunal will only have jurisdiction over the claim brought by Mr Upson if it is truly one for a debt or is a claim for a liquidated demand of money. The claim is for an amount between $10,000 and $20,000 – the difference it seems depending on resolution of contractual issues concerning the firm’s retainer, validity of the costs agreement and its terms, and possibly the reasonableness of the firm’s charges. These issues may well take the claim outside the Tribunal’s jurisdiction. This question will also need to be resolved as a preliminary issue.