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Clinnick v Baker QCATA 78
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Clinnick v Baker  QCATA 78
BRYAN CHARLES CLINNICK
ORIGINATING APPLICATION NO/S:
5 June 2019
On the papers
Application for leave to appeal refused.
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where the appellant hired a trailer from the respondent – where the appellant sought an adjournment of the hearing but in lieu was granted leave to appear at hearing by telephone – whether that amounted to a lack of procedural fairness – where tribunal proceedings required to be conducted in a way that is accessible, economical, informal and quick
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 142(3)(a)(i)
Alexandria v Thiele  QCATA 174
Kioa v West (1985) 159 CLR 550;  HCA 81
Pickering v McArthur  QCA 294
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
- Mr Clinnick hired a trailer from Mr Baker. He hired it on 23 December 2017 for one week. He kept it much longer than one week, however. He returned it on 17 February 2018, some 56 days later.
- The hire charge was $50 per day. Prior to that he had rented another trailer from Mr Baker and still owed $600 on that prior rental.
- Mr Baker charged him $2800 for 56 days hire of the second trailer and $600 for the earlier rental. Mr Clinnick did not pay. Mr Baker brought minor civil dispute – minor debt proceedings in the Tribunal seeking recovery of $3400 plus allowable costs.
- The matter was heard on 21 November 2018 by Justices of the Peace who found for Mr Baker and ordered Mr Clinnick pay the full claim, a total figure of $3670.50.
- Mr Clinnick seeks leave to appeal that decision. Given Mr Clinnick conceded he owed the prior rental amount of $600 and said at the hearing he would not contest that, presumably the appeal only relates to the order requiring him to pay $2800 for the 56 days’ hire.
- Given this is an appeal from a decision made in the Tribunal’s minor civil dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.
- Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to Mr Clinnick and where there is a reasonable argument that there is an error to be corrected. There may be other relevant considerations, but these are primary.
Mr Clinnick raises a number of issues in his application for leave to appeal:
- He says he was denied natural justice in not having the hearing adjourned and being forced to attend the hearing by telephone link. Associated with that is a complaint that he had only average or poor telephone reception through the hearing.
- Mr Clinnick’s other complaint is that the Justices of the Peace displayed a “kangaroo court” attitude.
Denial of natural justice
- Natural justice is a flexible notion. As explained in Kioa v West:
Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute. … What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject matter, and the rules under which the decision-maker is acting (Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at pp 552-553; National Companies and Securities Commission v. The News Corporation Ltd.  HCA 29; (1984) 58 ALJR 308, at pp 314, 318;  HCA 29; 52 ALR 417, at pp 427-428, 434).
In this respect the expression "procedural fairness" more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, that is, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations (cf. Salemi (No. 2), at p.451, per Jacobs J.).
- By the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) the Tribunal is required to act fairly and according to the substantial merits of the case. The Tribunal is not bound by the rules of evidence and may inform itself in any way it considers appropriate. The Tribunal must act with as little formality and technicality and with as much speed as the requirements of the QCAT Act, any enabling act or the rules and a proper consideration of the matters before the Tribunal permit. The Tribunal must ensure, as far as practicable, that all relevant material is disclosed to enable the Tribunal to decide the proceeding with all the relevant facts.
- The minor civil dispute list is a very busy list. There are no pleadings in the Tribunal and Justices of the Peace are expected to give a decision including their reasons for decision ex tempore at the conclusion of a short hearing. Justices of the Peace hear on average six matters each day. There is a $5,000 monetary limit to their jurisdiction and the matters coming before them are intended to be of the simpler sort, able to be dealt with quickly. The objects of the QCAT Act include ensuring the Tribunal deals with matters in a way that is accessible, fair, just, economical, informal and quick.
- The matter was initially listed for mediation on 2 October 2018. Mr Clinnick did not attend. He said he did not receive notice of the mediation. That is probably correct because the address for Mr Clinnick noted on the hire agreement is different to his address advised by Mr Baker in the application for minor civil dispute – minor debt application filed by Mr Baker in the Tribunal.
- The matter was then listed for hearing on 30 October 2018. Mr Clinnick did not attend that hearing either, probably because the same incorrect address was noted on the notice of hearing forwarded to him by the registry. The notice of hearing was returned, presumably by Australia Post.
- On the return date, 30 October 2018, probably because of the returned notice of hearing and no appearance by Mr Clinnick, the Justices of the Peace adjourned the application yet again to 21 November 2018. This time the notice of hearing was forwarded to a post office box which Mr Clinnick gave as his address for service in his filed response document. Additionally, a copy of the notice of hearing was forwarded to an email address he gave in the response.
- Mr Clinnick did receive the last notice of hearing. On the day before the hearing, 20 November 2018, he forwarded an email to the registry at Southport advising he was interstate and had intended to return for the hearing the following day but had been advised not to fly because of an ongoing medical condition which had flared up. He said he was concerned about appearing at the hearing and asked if the matter could be adjourned to another date to enable him to attend.
- Instead, the Justices of the Peace gave Mr Clinnick leave to appear at the hearing by telephone, which he did the following day.
- A perusal of the transcript of the hearing that followed shows a number of things.
- First, Mr Clinnick took no issue with his appearance by telephone until the very end of the hearing when he was challenged by the Justices of the Peace about his refusal to cross-examine Mrs Baker, who gave evidence against him for her husband, the respondent. The Justices of the Peace pointed out it was not appropriate to challenge her evidence after refusing to cross-examine her, because that unfairly gave her no opportunity to answer his assertions.
- Second, nowhere in the transcript of the proceedings is there any indication Mr Clinnick had difficulty understanding what was being said because of a poor telephone link or had difficulty making himself understood and heard by the Justices of the Peace.
- The Justices of the Peace gave Mr Clinnick every opportunity to speak on all relevant issues raised at the hearing. The Justices of the Peace advised him appropriately about what were the relevant issues and contentions raised by the respondent.
- Allowing parties to attend by telephone is a very common procedure in the Tribunal and aligns with the objects of the Tribunal to ensure matters are dealt with in a way that is accessible, economical, informal and quick. The interests of both parties must be considered in these matters and the matter had been listed on a number of occasions before the matter proceeded on 21 November 2018. It was appropriate that the matter proceed and be disposed of, if possible, on that day. There was no breach of natural justice, or as more aptly now expressed, procedural fairness in granting leave for Mr Clinnick to appear by telephone rather than adjourn the matter again. Mr Clinnick cannot maintain that his physical presence was necessary to allow him to conduct appropriate cross examination of any witness given he refused to cross-examine Mrs Baker who gave evidence for the respondent. Nor was there any indication from a perusal of the transcript suggesting that Mr Clinnick had documents he wished to hand up, which his physical absence prevented him from doing.
- Mr Clinnick has no prospect of succeeding in an appeal in respect of this ground of complaint.
- Mr Clinnick makes a vague objection that the Justices of the Peace conducted a “kangaroo court”. There are no particulars given of what occurred or what did not occur to support such vague accusation. This is not a ground of appeal.
- By s 143(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld):
The application or appeal must—
- (a)be in a form substantially complying with the rules; and
- (b)state the reasons for the application or appeal; and
- (c)be accompanied by the prescribed fee (if any).
- An appellant has an obligation to state the reasons for an application for leave to appeal. This broad-brush complaint raises no intelligible ground of appeal requiring consideration.
- An appellant must show that the decision appealed or for which leave to appeal is sought was tainted by legal error or that there has been a finding of fact or about credibility which was not supported on the evidence.
- There is nothing in the transcript to suggest that the matter proceeded other than in a fair and open way with each party being given a reasonable opportunity to make submissions and lead evidence.
- Mr Clinnick has no prospect of success in an appeal. Mr Clinnick has not suffered any injustice and no error requiring correction is to be discerned. The application for leave to appeal must be refused.
QCAT Act, s 142(3)(a)(i).
Pickering v McArthur  QCA 294, .
 HCA 81; (1985) 159 CLR 550.
 HCA 81; (1985) 159 CLR 550, - (Mason J.)
QCAT Act, s 28(2).
Ibid s 28(2)(c).
Ibid s 28(2)(d).
Ibid s 28(2)(e).
Ibid s 3(b).
Alexandria v Thiele  QCATA 174, , citing Fox v Percy (2003) 214 CLR 118, 127.
- Published Case Name:
Bryan Charles Clinnick v David Baker
- Shortened Case Name:
Clinnick v Baker
 QCATA 78
05 Jun 2019