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Right v Burrett[2020] QCATA 71

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Right v Burrett [2020] QCATA 71

PARTIES:

kristy right

(appellant)

v

belinda burrett

(respondent)

APPLICATION NO/S:

APL242-19

ORIGINATING APPLICATION NO/S:

MCDO 1/19 (Beaudesert)

MATTER TYPE:

Appeals

DELIVERED ON:

19 May 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

ORDERS:

  1. Leave to appeal is granted.  The appeal is allowed.
  2. The decision made in MCDO 1/19 (Beaudesert) on 27 June 2019 is set aside.
  3. This decision is substituted: ‘Application MCDO 1/19 (Beaudesert) is dismissed because the tribunal does not have jurisdiction to hear it as a minor civil dispute’.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where an Adjudicator heard a minor civil dispute for a debt or liquidated demand of money – where the primary claim was for an order that the seller of a horse deliver a signed transfer form to the buyer – whether the tribunal had jurisdiction to hear the claim

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where an Adjudicator ordered the seller of a horse to deliver a signed transfer form to the buyer - whether the tribunal has jurisdiction to make such an order when hearing a minor civil dispute

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 13, s 114, Schedule 3

Alliance Security Australia Pty Ltd v House Secure Pty Ltd [2014] QCATA 89

Hashfield v Gold Coast City Council [2020] QCATA 36

REPRESENTATION:

 

Appellant:

Self-represented

Respondent:

Self-represented

APPEARANCES:

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

  1. [1]
    This is another minor civil dispute appeal with jurisdictional issues.  The dispute between the parties was eminently suitable for resolution by the tribunal and on the Adjudicator’s findings which cannot be impugned, the applicant was entitled to the remedy that she sought.  Yet in this appeal I have had to find that the tribunal had no jurisdiction to hear and determine the dispute nor to give the remedy sought.
  2. [2]
    The result is inconsistent with the objects of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) to have the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick,[1] achieved by conducting proceedings in an informal way that minimises costs to the parties, and is as quick as is consistent with achieving justice.[2] 
  3. [3]
    The dispute concerned a Quarter Horse named Silver Dusted Missile.  The horse was registered with the Australian Quarter Horse Association (AQHA) which maintains a Stud Book of Quarter Horses.  Belinda Burrett purchased the horse from Kristy Right but it was not delivered with a signed transfer form.  This meant that Ms Burrett could not record the transfer of ownership with the AQHA.  Ms Burrett therefore brought an application in the tribunal seeking an order that Ms Right deliver the signed transfer form to her.  As an alternative to that claim, if the signed transfer form was not ordered to be delivered, Ms Burrett sought repayment of the sum of $7,000 that she had paid for the horse.
  4. [4]
    In a formal written response to the application, Kristy Right admitted that she had sold the horse and had received the purchase price, and admitted that she had not delivered the signed transfer form.  Her reasons were that she had discovered after the sale that Ms Burrett was not planning to purchase the horse as a ‘riding horse’ for her daughter as she had said, but that the horse was to be placed with one Melissa Clarke which Ms Burrett had promised would not happen.  Ms Right explained that she had had serious disagreements with Ms Clarke.  Hence, she said, this was a fraudulent misrepresentation and effectively she sought rescission of the sale on that ground.
  5. [5]
    Both Ms Burrett and Ms Right provided the tribunal with paperwork about the dispute, and it came for hearing before an Adjudicator on 27 June 2019.  The Appeal Tribunal has obtained a transcript of the hearing.
  6. [6]
    At the hearing Ms Burrett was in attendance and Ms Right appeared by telephone.  They informed the Adjudicator about their respective cases and gave evidence on oath.  The Adjudicator decided that there was no fraudulent misrepresentation by Ms Burrett, and that there was an implied term in the contract that the signed transfer form should be delivered with the horse.  The Adjudicator made an order accordingly.
  7. [7]
    Ms Right now appeals against that order.  Her grounds of appeal, as they appear in the application for leave to appeal and appeal and in submissions in support are:
    1. (a)
      She attended by telephone but often could not hear what the Adjudicator was saying.  The Adjudicator did not address the issues she raised and predominantly concentrated on Ms Burrett’s case, spending 95% of the time speaking to Ms Burrett.  The Adjudicator did not read the 40 pages of factual evidence from Ms Right and only read her four page summary of that evidence.  He therefore demonstrated bias in favour of Ms Burrett.[3]
  1. (b)
    In particular, the Adjudicator did not address Ms Right’s point that her pre-purchase conditions said that she would not sell the horse to Ms Burrett ‘if there was any chance of it going to/ending up with’ Ms Clarke.
  2. (c)
    The Adjudicator should have found that Ms Burrett was lying.  In particular, she lied about whether she had the horse in her possession saying at first it was and then saying it was not.
  3. (d)
    The Adjudicator based his decision on two new pieces of evidence which Ms Right did not see: an advertisement for the sale of the horse for $10,500 and evidence where only one sentence was presented from a larger conversation.
  4. (e)
    It is wrong to order a seller to deliver a signed transfer form if the purchaser has not used their own money to purchase the horse.
  5. (f)
    It is wrong to order a seller to deliver a signed transfer form if the seller only promised to do this after the sale, and not before the sale.
  1. [8]
    The application for leave to appeal and appeal asked for an ‘independent person to review all evidence’.  The difficulty with this ground of appeal is that an appeal is not an opportunity to ask for a review of all the evidence in the way that is suggested here.  An appeal does not give a party a second opportunity to win a case which they have lost.  It is necessary to show an error on the part of the original decision maker.
  2. [9]
    Over 140 pages of material were filed by Ms Right in support of the appeal.  Ms Right not only again submitted the documents which were attached to her formal written response to the claim and which were therefore before the Adjudicator, but she also submitted much new material including various witness statements from people who said they know the protagonists involved in this matter, and recent social media material.
  3. [10]
    In so far as any of this material is new and was not before the Adjudicator, then in order for me to consider it, the Appeal Tribunal’s directions relating to fresh evidence should have been followed.[4]  In particular, the directions required a formal application to be made with an explanation why the fresh evidence was not available to the tribunal below, and why the fresh evidence is relevant to the appeal.  Not only has this has not been done but I cannot see that any of the new material is relevant to the appeal.  In the circumstances I will not be considering any of the new material when deciding this appeal.
  4. [11]
    I shall deal with each of the grounds of appeal in turn.

Ground of appeal (a)

  1. [12]
    In this ground of appeal Ms Right is effectively saying that she was not given a fair hearing and the Adjudicator demonstrated bias.
  2. [13]
    Ms Right says that the Adjudicator concentrated on Ms Burrett’s case and spent 95% of the time speak to Ms Burrett.  This somewhat alarming claim led me to count the number of lines of the transcript over which the Adjudicator was listening to, and asking questions of, each of the parties at the hearing.  The context of this count is that minor civil dispute hearings tend to be inquisitorial – where the Adjudicator identifies the information which is needed to resolve the matter, and asks the parties about this – being the most efficient way to resolve the dispute.
  3. [14]
    The result of the count was:
    1. (a)
      Ms Burrett – 673 lines, that is 46% of all lines.
    1. (b)
      Ms Right – 793 lines, that is 54% of all lines.
  4. [15]
    Ms Right is therefore incorrect to say that the Adjudicator spoke to Ms Burrett for 95% of the hearing and predominantly concentrated on Ms Burrett’s case. 
  5. [16]
    As for the difficulties arising from the telephone attendance, the telephone attendance was probably inevitable since Ms Right lived in South Australia.  A study of the transcript does show that on several occasions Ms Right asked for things to be repeated.  She explained that she was a bit hard of hearing.[5]  On each occasion when Ms Right could not hear however, it can be seen from the transcript that the Adjudicator repeated to Ms Right whatever she had missed.  On one occasion, when the Adjudicator was giving reasons for the decision, the telephone cut out and Ms Right had to be called up again.[6]  The Adjudicator repeated those parts of the reasons that Ms Right had missed.  Despite the difficulties, it can be seen from the transcript that Ms Right was able to explain her case fully to the Adjudicator and did understand everything that happened in the hearing.
  6. [17]
    The reference to the Adjudicator reading only the four page summary of the 40 pages of factual evidence, is possibly a reference to what at the hearing Ms Right referred to as the 70 pages of evidence which she had attached to her formal written response to the claim.[7]  Usually, prior to the parties coming in for the hearing, the decision maker in a minor civil dispute claim will read through the paperwork to the extent necessary at least to understand what the case is about, and the issues which need to be resolved.  There is nothing in the transcript to suggest that the Adjudicator had not done this.  The 70 pages attached to Ms Right’s formal written response to the claim were comprised of a single page witness statement from Ms Right, and various conversations and messages.  As Ms Right explained at the hearing: ‘I had many, many conversations with Belinda .. it’s part of about 70 pages and all the missing conversations that Belinda hasn’t provided to you’.
  7. [18]
    The Adjudicator asked Ms Right to refer him to her four page summary and it is clear that he read through it and asked both parties about its contents.[8]  In the light of the large amount of material and the need to determine the matter as efficiently as possible, this was clearly a sensible and fair approach.  Ms Right’s four page summary did contain her case, and in particular did refer to what she regarded as her winning points, that prior to the sale she had made it clear she would not sell the horse if there was any chance of it ending up with, or going to, Ms Clarke, and that Ms Burrett said that she wanted to purchase it as a ‘riding horse’ for her daughter, which (Ms Right said) was false.
  8. [19]
    In the circumstances ground of appeal (a) cannot succeed.

Ground of appeal (b)

  1. [20]
    It is incorrect to say that the Adjudicator did not address what Ms Right regarded as her winning point, that she had told Ms Right that she would not sell the horse to Ms Burrett if there was any chance of it going to, or ending up with, Ms Clarke.
  2. [21]
    The Adjudicator indicated understanding of this point at the hearing,[9] and dealt with it in the reasons for the decision.  The Adjudicator found that there was a private arrangement between Ms Burrett and Ms Clarke which did result in the horse after the sale being kept on Ms Clarke’s property and being used to sire five mares.[10]  The Adjudicator found that this was not a breach of the contract of sale because it was not a term of the contract of sale that Ms Burrett had to keep the horse in her possession and could not transfer it to anyone else, or that the horse could not be used for breeding.[11]  The Adjudicator also found that Ms Burrett had not been fraudulent in respect of these matters.[12]  The Adjudicator pointed out that in any case, there was no counter-application before the tribunal for rescission of the contract of sale on the ground relied on by Ms Right.[13]
  3. [22]
    In the circumstances ground of appeal (b) cannot succeed.

Ground of appeal (c)

  1. [23]
    It seems to me that the result of this application did not turn on whether anyone was lying.  The terms of the contract of sale was purely a question of fact informed by the recorded conversations and messages.  There was little factual dispute of relevance between the parties – what was in dispute was the legal effect of what had happened. 
  2. [24]
    The premise behind this ground is also incorrect.  Ms Right suggests that at the hearing Ms Burrett lied about having the horse in her possession after the sale.  But what she was asked by the Adjudicator was whether she had ever received the horse, to which she answered ‘yes’.[14]  Then, when the Adjudicator asked whether the horse was in her possession, Ms Burrett explained that she had had the horse in her possession in New South Wales with Ms Clarke, it having been delivered there at Ms Burrett’s request.[15]  These answers appear to be truthful.
  3. [25]
    In the circumstances ground of appeal (c) cannot succeed.

Ground of appeal (d)

  1. [26]
    Ms Burrett handed up two documents to the Adjudicator at the hearing.  Unfortunately since Ms Right was on the telephone she did not see them.  The first was a social media message placed by ‘Peach Archie’ which advertised two horses for sale, one of which was Silver Dusted Missile.  The second was another advertisement for Silver Dusted Missile.  Respectively, they were marked exhibit A3 and A4.   
  2. [27]
    In the reasons, the Adjudicator referred to A3 and noted that it referred to the horse as ‘AQHA’.  He found that Ms Burrett had relied on this when making the offer to purchase the horse, and therefore it was an implied term that a signed AQHA transfer form would be delivered with the horse.[16]
  3. [28]
    The new documents were handed up at the hearing by Ms Burrett because when she was going through the documents which she had attached to the application, the Adjudicator asked her whether there was any document prior to the sale showing that she was going to get papers with the horse.  In response Ms Burrett volunteered the advertisements.[17]  She described them.  The Adjudicator then asked Ms Right about them.  He read out the relevant part of the advertisements to Ms Right.  Ms Right confirmed that she was Peach Archie and that these were her advertisements from her Facebook page.[18]  She discussed the contents of the advertisements and their significance with the Adjudicator.
  4. [29]
    Where there is a new document handed up at the hearing and one party is on the telephone, decision makers generally take extra care to ensure that the party on the telephone knows what the new document is and has an opportunity to deal with it.  The Adjudicator did this and dealt with the new documents fairly.
  5. [30]
    As for ‘one sentence presented from a larger conversation’ this is a reference to Ms Right informing Ms Burrett in a text message after the horse had been paid for that she would be sending the transfer form to Ms Burrett.[19]  Ms Right says that other evidence shows that this was conditional upon other contract terms being met.  In fact the Adjudicator referred to this text message as showing that it was consistent with the implied intention of the parties that the transfer form would be delivered with the horse.  Since the text message was sent after the sale, the fact that it might have been conditional is not relevant.
  6. [31]
    This ground of appeal is bound to fail.

Ground of appeal (e)

  1. [32]
    This is a point that Ms Right made before the Adjudicator and she makes it again in this appeal.  The Adjudicator was correct to say that this was irrelevant.[20]  The source of the money used to complete a purchase cannot affect the validity or enforceability of the contract.

Ground of appeal (f)

  1. [33]
    This is another point that Ms Right made before the Adjudicator, but the Adjudicator found that there was an implied term in the contract that a signed transfer form should be delivered with the horse.  This finding, which was clearly open to the Adjudicator and was probably the correct finding in law, means that the timing of any promise to send the signed transfer form is not relevant.

Conclusion on grounds of appeal (a) to (f)

  1. [34]
    None of the grounds of appeal are good grounds.

Jurisdictional issues

  1. [35]
    The appeal gives rise to jurisdictional issues.  The tribunal is bound to examine jurisdictional issues on its own initiative if necessary, whether hearing matters at first instance, or on appeal.[21]
  2. [36]
    The jurisdictional issues are whether the tribunal has jurisdiction to hear and determine a minor civil dispute for recovery of a debt or liquidated demand of money where one of the heads of claim is for an order that the respondent deliver a transfer form for a chattel, and if the tribunal does have jurisdiction to hear such a claim, whether such an order can be made.
  3. [37]
    This problem arises from the fact that the tribunal does not have general jurisdiction over small claims.[22]  Instead the jurisdiction is constrained in two main ways.  Firstly, the tribunal only has jurisdiction to hear certain types of claims, and secondly the tribunal can only make certain types of orders. 
  4. [38]
    The first main constraint is applied through the definition of a ‘minor civil dispute’.  The tribunal has jurisdiction to hear a minor civil dispute by section 11 of the QCAT Act.  A ‘minor civil dispute’ is defined in the dictionary to the QCAT Act in Schedule 3.  The relevant part of the definition[23] is:

minor civil dispute

1 Minor civil dispute means—

  1. (a)
    a claim to recover a debt or liquidated demand of money, with or without interest, of up to the prescribed amount; or
  1. (b)
    a claim arising out of a contract between a consumer and trader, or a contract between 2 or more traders, that is—
  1. (i)
    for payment of money of a value not more than the prescribed amount; or
  1. (ii)
    for relief from payment of money of a value not more than the prescribed amount; or
  1. (iii)
    for performance of work of a value not more than the prescribed amount to rectify a defect in goods supplied or services provided; or
  1. (iv)
    for return of goods of a value not more than the prescribed amount; or
  1. (v)
    for a combination of any 2 or more claims mentioned in subparagraphs (i) to (iv) where the total value of the combined claim is not more than the prescribed amount; ...
  1. [39]
    It can be seen that there are two limbs to the jurisdiction – a claim to recover a debt or liquidated demand of money (which is called a ‘minor debt claim’) and a claim arising out of a contract between a consumer and trader or between two or more traders (sometimes called a ‘consumer claim’).  It can be seen from these provisions that it is the nature of the claim which determines whether the tribunal has jurisdiction to hear the claim as a minor civil dispute.  This constraint is confirmed by section 12 of the Act, which permits the tribunal to exercise its jurisdiction for a minor civil dispute where a relevant person has applied to the tribunal to deal with the dispute.  Section 12 does not introduce any further constraints, except that only a consumer can bring a consumer claim where there is a trader-consumer contract.[24]
  2. [40]
    The second main constraint is in section 13.  This limits the type of order which can be made when hearing a minor civil dispute:

13  Deciding minor civil dispute generally

  1. (1)
    In a proceeding for a minor civil dispute, the tribunal must make orders that it considers fair and equitable to the parties to the proceeding in order to resolve the dispute but may, if the tribunal considers it appropriate, make an order dismissing the application.
  1. (2)
    For subsection (1), the tribunal may make only the following final decisions to resolve the dispute—
  1. (a)
    for a claim mentioned in schedule 3, definition minor civil dispute, paragraph 1(a), (b) or (c)—
  1. (i)
    an order requiring a party to the proceeding to pay a stated amount to a stated person; or
  1. (ii)
    an order that a stated amount is not due or owing by the applicant to a stated person, or by any party to the proceeding to the applicant; or
  1. (iii)
    an order requiring a party to the proceeding, other than the applicant, to perform work to rectify a defect in goods or services to which the claim relates; or
  1. (iv)
    an order requiring a party to the proceeding to return goods that relate to the claim and are in the party’s possession or control to a stated person; or
  1. (v)
    an order combining 2 or more orders mentioned in subparagraphs (i) to (iv);
  1. (b)
    for a tenancy matter—a decision the tribunal may make in relation to the matter under the Residential Tenancies and Rooming Accommodation Act 2008;
  1. (c)
    for a claim that is the subject of a dispute under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011—a decision or order the tribunal may make in relation to the matter under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011;
  1. (d)
    for a claim that is the subject of a dispute under the Building Act 1975, chapter 8, part 2A—a decision or order the tribunal may make in relation to the matter under the Building Act 1975, chapter 8, part 2A.
  1. (3)
    However, the tribunal can not make an order or decision under subsection (2) that—
  1. (a)
    purports to require payment of an amount, performance of work or return of goods of a value of more than the prescribed amount; or
  1. (b)
    purports to grant relief of a value of more than the prescribed amount from the payment of an amount; or
  1. (c)
    combines 2 or more orders mentioned in subsection (2)(a)(i) to (iv) and purports to award or declare entitlements or benefits (or both) of a total value of more than the prescribed amount.
  1. (4)
    Subsection (3) does not apply to a claim that is the subject of a dispute under the Building Act 1975, chapter 8, part 2A.

Did the tribunal have jurisdiction to hear the claim at all?

  1. [41]
    Ms Burrett brought her claim on Form 3, which is the form used in the tribunal to start a ‘minor debt claim’, that is a claim to recover a debt or liquidated demand of money.  Part B of the form requires the applicant to state the amount that is being claimed, in this case $7,000.  There is space to explain the claim.  In that space Ms Burrett wrote:

Purchase of a registered Quarter Horse stallion known as ‘Silver Dusted Missile’ Q-84804 (Registration number). Paid Kristy Right promptly after agreed amount of $7,000. Horse was collected by a transport company and delivered.  Kristy is refusing to send his registration papers to be transferred into my name as rightful owner. The stallion cannot be bred from or any progeny registered through the Australian Quarter Horse Association until Kristy forwards his registration papers to me and I can transfer into my name.  I am seeking registration papers as priority, signed by Kristy Right, or the amount paid ($7,000) for a horse that I cannot use for breeding purposes.

  1. [42]
    Ms Burrett attached some submissions to the application explaining everything that had happened.  At the end of the submissions she stated:

Ultimately, all I am asking for is a signed transfer on the back of the registration paper from Kristy for this stallion, Silver Dusted Missile.  I do not seek money but if I am denied the signed transfer by the courts of the stallions papers from the AQHA which belongs to the horse and I am the rightful owner of, then I will seek the $7,000 I paid for the stallion.

  1. [43]
    At the hearing, Ms Burrett clearly stated she did not want to return the horse.  She said:

That’s not what I want.  That was only towards the end of my statement that I said .. I want the papers that’s all.[25]

That’s all I want.[26]

All I want is his AQHA registration papers which I paid for.[27]

I just want the registration papers.  That’s all I want.[28]

  1. [44]
    When referring to the last paragraph of her submission in which she claimed return of the $7,000 if she did not get her primary remedy, she said:

So if I was denied the paperwork, I didn’t want to end up empty-handed.[29]

  1. [45]
    It was clear from what Ms Burrett was saying at the hearing that she was not withdrawing or abandoning the claim for the return of the $7,000 but she was emphatic that this was only an option if she was ‘denied the paperwork’. 
  2. [46]
    The difficulty therefore is that although Ms Burrett had brought a claim to recover a debt or liquidated demand of money, that is the return of the $7,000 she paid for the horse, the primary remedy that she sought was delivery of the signed transfer form.  Seeking delivery of the signed transfer form was not a claim to recover a debt or liquidated demand of money. 
  3. [47]
    Hence the claim before the tribunal was a mixed claim with only part of it being a claim for recovery of a debt or liquidated demand of money.  In Hashfield v Gold Coast City Council [2020] QCATA 36, [69] I had to consider whether the tribunal had jurisdiction to hear such a mixed claim as a claim for recovery of a debt or liquidated demand of money.  In Hashfield a substantial head of the claim would have needed assessment by the tribunal and was not a claim to recover a debt or liquidated demand of money.  Hence the claim overall was not a claim to recover a debt or liquidated demand of money.  This meant that the tribunal had no jurisdiction to hear and determine any part of it, unless the offending part of the claim was abandoned or there was jurisdiction to hear the offending part of the claim under another limb of the tribunal’s jurisdiction.
  4. [48]
    The basis of Hashfield was that the word ‘claim’ in the first limb of Schedule 3 (definition of minor civil dispute) is used in the sense of ‘proceeding’, and means that the claim needs to be considered as a whole to see whether overall it is a claim to recover a debt or liquidated demand of money.[30] 
  5. [49]
    In Ms Burrett’s application, since a substantial part of her claim was not a claim to recover a debt or liquidated demand of money, then Hashfield is engaged and the tribunal had no jurisdiction to hear any part of Ms Burrett’s claim, as filed.
  6. [50]
    Things changed slightly in the hearing.  Although Hashfield had not yet been published, the Adjudicator recognised that there were jurisdictional difficulties in what the tribunal was being asked to do.  Seemingly in an attempt to solve this problem, when giving reasons the Adjudicator said:

It is clear to me that the application by Ms Burrett in this matter is simultaneously a minor debt claim and a consumer claim.  It is a consumer claim to the extent that Ms Burrett is seeking an order for the delivery of the Australian Quarter Horse Association registration papers with the signed transfer for the stallion Silver Dusted Missile.

In the alternative, it is a minor debt claim if I do not order that, in which event Ms Burrett wants refunded the payment of $7,000 and Ms Right can have her horse back.

Accordingly at this juncture of these reasons, the second order in this matter will be that the application proceed as both a consumer claim and a minor debt claim.

  1. [51]
    Here the Adjudicator separated the claim for delivery of the signed transfer form from the minor debt claim and converted it into a consumer claim.  Subject to any argument about whether it is possible in this way to convert a claim outside the jurisdiction of the tribunal into one within the jurisdiction of the tribunal, had this been effective it would have eschewed the difficulty posed by Hashfield.  The problem however, is that an application for the delivery of a signed transfer form cannot be brought as a consumer claim either.  This can be seen from the list of claims which can be made to give the tribunal jurisdiction under the second limb of the tribunal’s jurisdiction (consumer claims), set out in (i) to (v) of paragraph (b) of the definition of ‘minor civil dispute’ in Schedule 3 of the QCAT Act (above).  Hence the Adjudicator’s attempt to cast the claim for delivery of the transfer form as a consumer claim was not effective.  It did not give the tribunal jurisdiction over the matter as a consumer claim.
  2. [52]
    It must follow therefore, that if Hashfield is correct, the tribunal did not have jurisdiction to hear Ms Burrett’s application at any time.  On that basis the application must be dismissed.
  3. [53]
    Hashfield has only very recently been published and it is unclear whether it will be accepted as correct law.  If Hashfield is incorrect, it may mean that the tribunal did have jurisdiction to hear the claim for the return of the $7,000 after all.  So I need to consider in the alternative whether the tribunal had jurisdiction to order delivery of the signed transfer form. 

Did the tribunal have jurisdiction to order delivery of the signed transfer form?

  1. [54]
    It is helpful to recite the order that was actually made by the Adjudicator:
  1. Kristy Right has leave to attend the hearing by telephone.
  1. The Application proceed as both a consumer claim and a minor debt claim.
  1. The Respondent on or by 10 July 2019 deliver to the Applicant the Australian Quarter Horse Association Registration papers with a signed transfer for the stallion Dusted Missile.
  1. The minor debt claim for $7,000 is dismissed.
  1. This order be emailed to the Respondent at (email address).
  1. [55]
    The obvious difficulty is that order 3 is not in the list of orders which can be made in section 13(2) (above).  Section 13(2) however, only limits the ‘final decisions’ which can be made to resolve the dispute.  So if order 3 was a final decision then the tribunal had no jurisdiction to make it; if it was not, then consideration would need to be given to whether the tribunal had jurisdiction to make it under another provision.[31]
  2. [56]
    The relevant definition of final decision in Schedule 3 of the QCAT Act is:

final decision, of the tribunal in a proceeding—

  1. (a)
    means the tribunal’s decision that finally decides the matters the subject of the proceeding; ...
  1. [57]
    It should be pointed out that some final decisions are also governed by other provisions in the QCAT Act, such as dismissing an application which lacks substance (section 47) or for causing a disadvantage (section 48) and decisions by default in the case of a claim to recover a debt or a liquidated demand of money (section 50A).  Further, the tribunal can make other orders in minor civil disputes which are important to resolve issues in the dispute or to provide some remedy but which are not ‘final decisions’ under section 13.  For example, interest can be awarded in a claim to recover a debt or liquidated demand of money (section 14), an interim order can be made (section 58),[32] a limited costs order can be made (section 102) and a conditional or ancillary order can be made (section 114).  Finally, procedural orders can be made which are not ‘final decisions’, for example parties can be joined or removed (section 42), representation can be allowed (section 43), the application can be transferred to a more appropriate forum (section 52), or a direction can be given (section 62).   
  2. [58]
    A final decision has certain attributes under the QCAT Act.  It must be given in writing (section 21), reasons for the final decision must be given orally or in writing [section 121(4)], it may be published in any way the tribunal considers appropriate (section 125), it may be enforced in the courts (sections 131 and 132), and it may be ‘renewed’ if there are problems with its enforcement or implementation (section 133). 
  3. [59]
    It has been held that there can only be one final decision in a matter,[33] but the way the expression is used in section 13 is that the tribunal could make more than one final decision.
  4. [60]
    It is clear that the decision on 27 June 2019 was the final decision in Ms Burrett’s application.  When deciding whether the tribunal had jurisdiction to make that decision, it is necessary to consider each of its components.
  5. [61]
    It seems clear that orders 1, 2 and 5 can properly be regarded as directions under section 62 of the Act.  As such they would not form part of the final decision in the application, apart from appearing in the same order as the final decision.
  6. [62]
    Orders 3 and 4 need to be considered by reference to the definition of final decision in Schedule 3 of the Act that it is the ‘tribunal’s decision that finally decides the matters the subject of the proceeding’. 
  7. [63]
    There were a number of matters the subject of the proceeding.  There was an issue who had purchased the horse.  Then there was an issue whether or not there was an express or implied term that a signed transfer form should be delivered with the horse.  There was an issue about whether Ms Burrett had forfeited her rights under the contract in some way, and whether (if Ms Right’s counter-application could be formalised) the contract of sale should be rescinded for fraudulent misrepresentation.  The Adjudicator resolved all those issues in favour of Ms Burrett.
  8. [64]
    The Adjudicator therefore found that Ms Burrett was entitled to delivery of the signed transfer form but had not received it.  So the next issue was how this should be   remedied.  There were only two realistic options: either specific performance of the requirement to deliver a signed transfer form (order 3) or damages for failure to do so.  Ms Burrett’s secondary application, for return of the purchase price, was always hopeless because she had not rejected the horse but instead had affirmed the contract.  This is because, by the time of the hearing, the horse had been in her legal possession, and under her control, for some 11 months.  Over that time it had serviced at least six mares, resulting in a potential for five foals to be born about three months after the hearing.[34] 
  9. [65]
    The damages option had not even been raised by the parties.  Despite that, the Adjudicator might have raised it.  Adjudicators are used to considering whether a dispute ought to be recast and dealt with in a different way than at first appears.[35]  This is a product of the fact that in minor civil disputes the parties are usually not legally represented.  They quite often apply for the wrong thing or use the wrong form of application.[36]  In particular it is very common for consumers with valid damages claims simply to ask for the return of the whole purchase price in a minor debt claim instead of for damages for breach of contract in a consumer claim, to be assessed.  The problem was that an adjournment would probably have been necessary if a damages claim were to be heard, because there was no evidence before the tribunal about the value of the horse with and without the signed transfer form.
  10. [66]
    Instead, the Adjudicator took the obvious and simplest route to resolve the dispute –  making order 3, dismissing Ms Burrett’s claim for return of the purchase price, and finding that Ms Burrett had not been fraudulent as Ms Right sought to suggest.  This resolution of the dispute was clearly correct on the Adjudicator’s findings and cannot be impugned, provided of course the tribunal had jurisdiction to do it.
  11. [67]
    It seems to me that order 3 was at the heart of the Adjudicator’s resolution of the dispute.  It was the primary remedy sought by Ms Burrett, and strongly resisted by Ms Right.  Whether there were grounds to make order 3 was central to the dispute between them.
  12. [68]
    Hence order 3 was part of the final decision in the proceedings.  Since it was not on the list of final decisions which could be made in a minor civil dispute, the tribunal had no jurisdiction to make it.

Conclusion in the appeal

  1. [69]
    I have concluded that the tribunal did not at any time have jurisdiction to hear and determine the application brought by Ms Burrett, and that it had no jurisdiction to make the order that Ms Right deliver the signed transfer form for the horse to Ms Burrett.  In the circumstances I must give leave to appeal and allow the appeal under section 146 of the QCAT Act, set aside the decision and substitute a decision that the minor civil dispute application is dismissed.

Footnotes

[1]  Section 3(b).

[2]  Section 4(c).

[3]  The allegation of bias appears in the application for a stay of the decision filed at the same time as the application for leave to appeal or appeal.

[4]  Directions of 12 September 2019.

[5]  Transcript 1-18 line 42.

[6]  Transcript 1-36 line 29. 

[7]  Transcript 1-24 line 16.

[8]  Transcript 1-24 line 19 to 1-29 line 15.

[9]  Transcript 1-5 line 44, 1-11 line 45, 1-14 line 27, 1-24 line 12, 1-25 line 29.

[10]  Transcript 1-38 line 7.

[11]  Transcript 1-39 line 38.

[12]  Transcript 1-40 line 4.

[13]  Transcript 1-40 line 45.

[14]  Transcript 1-5 line 46.

[15]  Transcript 1-6 line 42, 1-10 line 20.

[16]  Transcript 1-37 line 19, 1-38 line 38.

[17]  Transcript 1-19 line 38.

[18]  Transcript 1-20 to 1-22.

[19]  Transcript 1-39 line 5.

[20]  Transcript 1-16 line 25.

[21] Alliance Security Australia Pty Ltd v House Secure Pty Ltd [2014] QCATA 89 (Dr J R Forbes).

[22]  That is, up to the prescribed limit of $25,000.

[23]  That is, ignoring the jurisdiction over damage to property by the use of a vehicle, tenancy matters and fencing matters.

[24]  A trader wishing to bring a claim against a consumer therefore, may only bring a claim to recover a debt or liquidated demand of money.

[25]  Transcript 1-3 line 23.

[26]  Transcript 1-4 line 15.

[27]  Transcript 1-31 line 44.

[28]  Transcript 1-34 line 11.

[29]  Transcript 1-34 line 28.

[30]  [56]-[69].

[31]  This would be section 114(b) which permits the tribunal to make an ancillary order.

[32]  By section 129 an interim order will be a ‘final decision’ for the purpose of enforcement.

[33] Stuart v Queensland Building and Construction Commission [2017] QCA 115, [15].

[34]  Transcript 1-27.

[35]  An approach which is consistent with the tribunal’s objects and functions in sections 3 and 4 and also the requirement to act with as little formality and technicality as the Act or the rules and a proper consideration of the matters before the tribunal permit, in section 28(3)(d).

[36]  Form 1 should be used for consumer claims, and Form 3 should be used for claims to recover a debt or liquidated demand of money.

Close

Editorial Notes

  • Published Case Name:

    Kristy Right v Belinda Burrett

  • Shortened Case Name:

    Right v Burrett

  • MNC:

    [2020] QCATA 71

  • Court:

    QCATA

  • Judge(s):

    Member Gordon

  • Date:

    19 May 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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