Ritson v Ryan[2021] QCATA 100

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This is the third time Mr Ritson’s application has been to the Appeal Tribunal and each time he has been successful in having a decision made by the tribunal set aside.  It is now some five years since he first made the application to the tribunal and some eight years after the events relied on as giving rise to the earliest part of the claim.
2. [2]
   The basic facts of the claim are fairly simple.  However, the claim has some legal complexities.  One arises from the fact that Mr Ritson brings it as assignee of rights of four others and the rights which were assigned need to be closely examined in the light of what is justiciable in the tribunal.  Then there is a suggestion that he is estopped from bringing part of the claim because of a prior action.  And there was a payment made by Mr Ryan which Mr Ritson appropriated as payment towards parts of this claim, which appropriation Mr Ritson has now sought to withdraw.
3. [3]
   One issue which has impeded the tribunal in dealing with the claim efficiently is whether or not the tribunal has jurisdiction to hear it at all.  This issue has now resolved itself to whether the claim is one to recover a debt or liquidated demand of money.  At an early stage in the proceeding an Adjudicator decided that it was not and dismissed it but that decision was set aside on appeal on procedural grounds.  After a hearing by a second Adjudicator which also had to be set aside, Mr Ritson amended the claim and a third Adjudicator decided that the claim as amended was not a claim to recover a debt or liquidated demand of money.  In this appeal, I have decided that this is incorrect and that the claim as amended is to recover a debt or liquidated demand of money.  Meanwhile the claim remains unresolved and will need to be reheard.
4. [4]
   The net result for both parties has been most unfortunate.  They have both spent an inordinate amount of time and effort in trying to have the dispute resolved.  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]  

The history of the proceedings

5. [5]
   Because I have allowed this appeal I will need to decide how it can best be resolved in a way fair to both parties.  It helps to consider the history of the proceedings in more detail.
6. [6]
   On 10 October 2016 Mr Ritson brought the application.  In the claim he said that Mr Ryan provided courses to prepare students for pilot aptitude tests.  Four individuals BC, CA, GS and LG, had paid Mr Ryan course fees in advance.  It was said that Mr Ryan did not provide BC, CA, and GS with any services whatsoever, and did not provide services to LG as per the agreement.  So, it was said, they were all entitled to refunds of the course fees as a debt.  He brought the claim as assignee of the rights of BC, CA, GS and LG against Mr Ryan.  In these reasons I shall call BC, CA, GS and LG ‘the assignors’.
7. [7]
   On 7 November 2016 the respondent Mr Ryan applied to strike out the claim on the grounds that there had been other litigation, and the Victorian Civil and Administrative Tribunal (VCAT) in February 2016 had struck out a claim or estopped it, and that having lost in Victoria Mr Ritson was trying his luck in Queensland ‘again’.  He said that the Victorian courts/tribunals had jurisdiction and this matter had already been heard, so that Mr Ritson was limited to an appeal from the VCAT decision.  
8. [8]
   On 17 November 2016 Mr Ritson asked the tribunal to deal with Mr Ryan’s strike out application at an oral hearing rather than on the papers. On 22 November 2016 this was refused, and directions were given for submissions to be filed about the tribunal’s jurisdiction to hear and determine the claim.  Meanwhile Mr Ryan had filed a response to the claim, denying that any money was owed to the assignors.
9. [9]
   On 5 January 2017 Mr Ritson’s claim was dismissed by an Adjudicator who made a decision on the papers.  The reasons for this decision were produced subsequently.  The decision was that the tribunal had no jurisdiction to hear the claim because the assignors’ rights against Mr Ryan were not debts or liquidated demands, but even if they were, they were not the subject of the assignments.^[3] The Adjudicator also had other concerns, namely that Mr Ritson was unable to bring a claim in respect of BC or CA by reason of an order made in VCAT proceedings about that, and that any other claim against Mr Ryan would be more appropriately dealt with by VCAT.^[4] The Adjudicator also decided that the claims in respect of BC and LG had been extinguished when Mr Ritson appropriated a payment made by Mr Ryan to those claims, and they could not be pursued as interest only claims.  Further, there were four claims in one, and this was misconceived or an abuse of process.
10. [10]
    On 19 June 2017 the decision made to dismiss the claim was set aside on Mr Ritson’s appeal to the Appeal Tribunal. The decision of the Acting Senior Member that day was that since Mr Ritson had not had an opportunity to file evidence and to make submissions at an oral hearing on the jurisdictional point raised by the Adjudicator, there had been a denial of natural justice.
11. [11]
    On 7 September 2017 Mr Ryan applied for a second time to have Mr Ritson’s claim struck out.  His grounds were that the Adjudicator who struck out the claim before, was correct.  Alternatively he applied for a stay on the grounds that Mr Ritson would very soon be declared bankrupt.
12. [12]
    On 13 September 2017 the whole matter was listed for hearing before a second Adjudicator and both Mr Ritson and Mr Ryan attended.
13. [13]
    On 9 October 2017, because of certain things said by the Adjudicator at the hearing on 13 September 2017, Mr Ritson applied for the Adjudicator to disqualify himself from deciding the matter on the grounds of a reasonable apprehension of bias.
14. [14]
    On 31 January 2018, having decided not to recuse himself, in a written decision the Adjudicator dismissed the claim.  This was on a consideration of the merits of the claims which he decided failed largely due to lack of evidence, but also because of the effect of the terms and conditions of the contracts which gave Mr Ryan an absolute discretion whether or not to give a refund of the course fees. 
15. [15]
    On 2 October 2018 I allowed Mr Ritson’s appeal against the decision made on 31 January 2018 giving written reasons.^[5] I decided that because of what was said at the hearing on 13 September 2017 the Adjudicator who heard the matter on that day should have recused himself from hearing the matter and that the decision made that day should be set aside. I remitted the matter back to the tribunal for hearing and I made some directions for its further progress.
16. [16]
    On 13 March 2019 Mr Ryan again applied to the tribunal for the claim to be struck out on the basis that the tribunal did not have jurisdiction to hear it. This was not supported by submissions.
17. [17]
    On 14 March 2019 and on 16 May 2019 a third Adjudicator heard the matter in oral hearings.  Mr Ritson and Mr Ryan were present but witnesses also attended and were cross examined. The Adjudicator reserved the decision.
18. [18]
    On 2 August 2019 the Adjudicator dismissed the whole matter as an abuse of process.  The reasons for this decision were read into the record on that day.
19. [19]
    On 25 September 2019 Mr Ritson appealed to the Appeal Tribunal against the decision made to dismiss the claim. The appeal has now come back to me for a decision.

The claim was amended

20. [20]
    When this application was last before me on appeal, I allowed the appeal and remitted the application for reconsideration. At the appeal hearing Mr Ritson said that he wished to amend the claim to remove any reference to his appropriation of the payment made by Mr Ryan. I gave him a deadline within which any application to amend the claim had to be made. I expressly stated that I was not giving leave to amend, but that he would need to apply and this would be considered by the tribunal in due course.^[6]
21. [21]
    Mr Ritson did apply to amend the claim.^[7] Not only did the amendment remove the reference to Mr Ryan’s payment but it also alleged some new facts and set out the legal consequences contended for in much more detail than previously. The factual basis for the claims was not changed, but was supplemented by two additional matters.  Firstly it was said that Mr Ryan had made representations about the course which had induced the assignors to enter into the contract but which were false, and secondly it was now said that Mr Ryan was a ‘trader’ and each assignor was a ‘consumer’. The new legal basis for the claim of particular relevance to this appeal, was that the course fees should be refunded relying on (a) a failure of consideration, (b) unjust enrichment, (c) a term which could be implied into the contracts and (d) on the basis of rescission for misrepresentation.  
22. [22]
    Mr Ryan opposed leave to amend.^[8] The tribunal directed Mr Ritson to re-draft the proposed amendment to identify how the proposed claim differed from the original claim.^[9] Mr Ritson sought an order dispensing with that direction.^[10]  
23. [23]
    Ultimately on 14 March 2019 the Adjudicator hearing the matter said the amendment had been done with proper formality. It seems that the Adjudicator was of the belief that leave to amend had been given by the Appeal Tribunal and that it was right to proceed to hear the matter on the amended claim.^[11] This means that leave to amend was not given formally. But having regard to the fact that the Adjudicator proceeded to hear the matter on the basis of the amended claim, it is right to regard leave for the amendment to have been given by the tribunal implicitly.

The Adjudicator’s decision

24. [24]
    On 2 August 2019, the Adjudicator made the following order:

The application is dismissed as an abuse of process.

25. [25]
    In the reasons read into the record that day, the main reason given for doing this was because ‘four individual claims have incorrectly been brought as one’.^[12]  
26. [26]
    However, the Adjudicator did give a number of other reasons why the claim could not succeed and then concluded the reasons by saying  However, for the reasons I have just stated, I intend to dismiss the application in its entirety as an abuse of process.

27. [27]
    Since an application might be an ‘abuse of process’ if it is defective in many different ways, it does appear that the Adjudicator made the decision to dismiss the application as an abuse of process for all the reasons stated.  Set out in a convenient order for me to deal with in this appeal, those reasons were:

    1. (a)
       Because four individual claims were brought as one and this could not be corrected by the fact that there was one applicant because of the assignments, the claim was an abuse of process.
    2. (b)
       The tribunal could not hear a claim arising out of or referrable to section 199 of the Property Law Act 1974 (Qld) which provided that a chose in action could be assigned to a third party.
    3. (c)
       The claims were not within the tribunal’s jurisdiction as claims to recover a debt or liquidated demand of money.
    4. (d)
       As trader-consumer claims it was questionable whether the tribunal could hear such claims brought by an assignee.
28. [28]
    In this appeal, Mr Ritson says that the Adjudicator was wrong on (a) to (c).  It is also said that the Adjudicator displayed apprehended bias and that he was not given a fair hearing on various grounds.
29. [29]
    Concentrating for the moment on the Adjudicator’s reasons for dismissing the claim, I think the appeal succeeds with respect to (a) to (c).  
30. [30]
    Before giving my reasons for this I need to deal with the allegation of apprehended bias.  This is because it has been emphasised by the High Court that an appeal court must deal with a bias issue first.  This is because the issue strikes at the validity and acceptability of the trial and its outcome.  If the ground of appeal on the ground of apprehended or actual bias is found to be valid, the appeal is bound to succeed and a retrial ordered.  This is so even if the appeal court finds that the judge was correct in the substantive findings.  This is because the apprehended or actual bias cannot be ignored - it would mean that a defect in the administration of justice has been found to have occurred which, in the absence of any successful appeal on the point, will have remained unremedied: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577.^[13]

Was the Adjudicator disqualified from determining the matter on the grounds of apprehended bias?

31. [31]
    There are three matters complained of:

    1. (a)
       The Adjudicator’s decision was given in a telephone hearing but Mr Ritson was not contacted to enable him to attend.
    2. (b)
       The Adjudicator acted upon material provided by Mr Ryan without providing Mr Ritson with it, despite having alerted the tribunal to the fact that Mr Ryan had a habit of sending material to the tribunal without copying it to him.
    3. (c)
       Having previously indicated some contentment with Mr Ritson’s case, the Adjudicator then changed his mind completely and dismissed it as an abuse of process.
32. [32]
    For (a), it appears from the file document showing attendances and from the transcript of the proceedings on 2 August 2019 that the Adjudicator simply read his decision into the record on that day in the absence of the parties. This is often done in minor civil dispute proceedings for the sake of efficiency and is regarded as sufficient compliance with the statutory provisions, which permit a party to ask for ‘written reasons’ which are then either transcribed or provided by means of an audio recording.^[14] Normally a party is not informed that this will be happening, but instead they receive the tribunal’s order soon afterwards.  
33. [33]
    Here however, the parties were emailed the day before and told that the reserved decision would be handed down the following day and asking them to provide a telephone number if they wished to appear. Mr Ritson replied saying he would wish to attend by telephone and gave his contact number.  
34. [34]
    It appears however, that unfortunately neither party was in fact called to attend the decision being read into the record.  
35. [35]
    In those circumstances each side was treated the same and there can be no suggestion of apprehended bias arising from what happened.
36. [36]
    As for (b) I accept the important principle that, unless a contrary direction is given in extraordinary circumstances, a decision maker acting in a judicial capacity like an Adjudicator hearing a minor civil dispute should not take into account any material about which the other side is not aware, and if the material is significant without allowing the other side to comment upon it.
37. [37]
    I also accept that it is normally bad practice for either party to send material to the tribunal without also sending it to the other side.
38. [38]
    The tribunal and its registries have to deal with an enormous amount of such material on a daily basis. The tribunal and its registries do not act as a post box, and there is no obligation to ensure that everything which comes in is passed to other parties. In that respect the tribunal will often assume that this has been done already. However, parties do need to rely on the tribunal and its decision makers ensuring that anything which could sway the decision one way or the other is in front of other parties and they have been given an opportunity to comment on it.
39. [39]
    Here, the information which Mr Ritson says should have been passed to him for comment was information given to the tribunal by Mr Ryan about Mr Ritson’s bankruptcy.  Mr Ryan told the tribunal that Mr Ritson was now bankrupt.  The tribunal checked this with the National Personal Insolvency Index and this information was found to be incorrect. The Adjudicator referred to what had happened in the reasons, which is how Mr Ritson became aware of it.
40. [40]
    Of course had the search shown that Mr Ritson was bankrupt then it would have been raised with him for comment. As it was, this was not necessary.
41. [41]
    As for (c) just because on reflection, an Adjudicator decides against a party does not indicate that the Adjudicator may have been biased. It is often the case that decision makers will waver before reaching a final decision. This does not indicate that there is possible bias, but probably shows the exact opposite - that the final decision has been reached in a fair and open minded way.
42. [42]
    None of the issues raised therefore are sufficient to show that a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.^[15]

Was the Adjudicator correct to dismiss the claim for the reasons given?

43. [43]
    Going back to the Adjudicator’s reasons set out above, I shall now consider them one by one.

    1. (a)
       four claims together an abuse of process
44. [44]
    The Adjudicator was concerned that because four individual claims were brought as one and that this could not be corrected by the fact that there was one applicant because of the assignments, then the application was an abuse of process. 
45. [45]
    The Adjudicator decided that the only common thread between the four causes of action was that Mr Ritson asserted that he had ‘a cause of action perforce the deeds of assignment’. The four individuals were undertaking the course on separate dates, there was no evidence that the courses were identical or they knew each other at the time.  
46. [46]
    Hence the Adjudicator decided that to marry up the four distinct causes of action into one claim was an abuse of the process of the tribunal, bearing in mind ‘QCAT’s mantra – accessible, fair, just, economical, informal and quick’. Since the four individuals could not have been co-applicants in the one claim the same could not be done by an assignee.
47. [47]
    I would agree with the Adjudicator that when examining the correctness of the procedure used by Mr Ritson (in bringing all the claims together) it is relevant to consider whether the assignors might have been able to join their claims had they each been applicants.  In this respect, the Adjudicator did not mention the possible effect of Rule 11 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld).
48. [48]
    Rule 11 reads:

11 Joint applications or referrals 

1. (1)
   Two or more individuals or other entities may make a joint application to the tribunal to deal with a matter arising out of the same or similar facts or circumstances. 
2. (2)
   A joint referral of a matter arising out of the same or similar facts or circumstances may be made to the tribunal for 2 or more individuals or other entities. 
3. (3)
   If the Act, an enabling Act or these rules require an application or referral to state the name or contact details of an applicant or an applicant’s representative (the relevant details), a joint application or joint referral must contain the relevant details for each applicant. 
4. (4)
   A joint application or joint referral must state the applicant to whom a document is to be given under the Act, an enabling Act or these rules, and a statement of address for service for only that applicant is required for the application or referral. 
5. (5)
   A joint application or joint referral must state the name of the applicant who is to appear in the proceeding for the applicants. 

Note— 

See also rule 56. 

6. (6)
   A joint application or joint referral must be signed by each applicant.

49. [49]
    Rule 11 is engaged by section 33 of the QCAT Act which requires an application to be in a form substantially complying with the rules. Under Rule 11(1), causes of action brought by different individuals or entities can be joined in one application if they arise out of the same or similar facts or circumstances. 
50. [50]
    In the original claim, the facts alleged were that each of the assignors paid Mr Ryan for a course but that Mr Ryan either did not provide them with any services whatsoever, or in the case of LG did not provide services as per the agreement.  In my view those claims arose out of similar facts or circumstances.  
51. [51]
    In the amended claim, the same basic facts were relied on but were supplemented by the allegations that each assignor had been induced to enter into the contracts by representations made by Mr Ryan which were false.  For each assignor, the alleged representations were similar.  
52. [52]
    In my view Rule 11 applies to all the claims both in their original form and as amended and on that basis it cannot be said that if the assignors had each been applicants that there would have been a misjoinder of the four causes of action.  Equally it cannot be said there was any misjoinder of the four causes of action because only one person brought the claim as assignee.
53. [53]
    If I am wrong about this and the four claims do not arise from sufficiently similar facts and circumstances and so would be outside Rule 11 had they been brought by the assignors themselves, I still do not think they would be an abuse of process.
54. [54]
    This is because, when a claim is made, it is either accepted by the principal registrar or rejected, and if accepted that is when the proceedings start.^[16] The tribunal may waive compliance with procedural requirements under the Act or under the rules,^[17] and may require amendment of an application.^[18]  
55. [55]
    Since an incorrect joinder of a cause of action would not nullify an application, normally this would be corrected under the above provisions. It would not normally result in a strike out or dismissal of the application. This is because such an application would merely suffer from a procedural irregularity rather than be an abuse of process.
56. [56]
    Where the tribunal was contemplating correcting a procedural irregularity arising from incorrect joinder of a cause of action, this would normally be done at an early stage and an applicant would normally be allowed to get the matter in order.  It would not normally be left to a hearing approaching three years after the commencement of the proceedings.  
57. [57]
    It follows that Mr Ritson’s ground of appeal that the Adjudicator was in error in dismissing the claim as an abuse of process because it was four claims in one, and this was not corrected by the assignments, succeeds.

(b) the tribunal could not hear a claim relying on section 199 of the Property Law Act 1974 (Qld)

58. [58]
    Another reason the Adjudicator dismissed the claim was that the tribunal had no jurisdiction to hear a claim by an assignee where the deeds of assignment were governed by section 199 of the Property Law Act 1974 (Qld).  The reasoning seems to be that neither the 1974 Act nor the QCAT Act gave the tribunal jurisdiction, and so it did not have jurisdiction.
59. [59]
    Section 199 reads as follows:

Part 12 Equitable interests and things in action 

199 Statutory assignments of things in action 

1. (1)
   Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—

1. (a)
   the legal right to such debt or thing in action; and 
2. (b)
   all legal and other remedies for the same; and 
3. (c)
   the power to give a good discharge for the same without the concurrence of the assignor. 

1. (2)
   If the debtor, trustee or other person liable in respect of such debt or thing in action has notice—

1. (a)
   that the assignment is disputed by the assignor or any person claiming under the assignor; or 
2. (b)
   of any other opposing or conflicting claims to such debt or thing in action;  the debtor may, if the debtor thinks fit, either call upon the persons making claim to the debt or other thing in action to interplead concerning the same, or pay the debt or other thing in action into court under and in conformity with the provisions of the Acts relating to relief of trustees.

60. [60]
    These provisions were needed because the common law did not permit an assignment of a thing in action, that is to say a right to sue.
61. [61]
    If Mr Ritson’s claim is correct, then the assignors would have had a right to sue Mr Ryan at the time of the assignments, and the provisions of section 199 mean that the assignments would have been effective, subject to an analysis of their terms of course, to assign those rights to Mr Ritson upon Mr Ryan having notice of the assignments.
62. [62]
    As is said in section 199(1)(b) the assigned rights included all legal and other remedies for the same.  There is no reason to read this restrictively and it must include the rights which the assignors may have had at the time of their respective assignments to bring a claim against Mr Ryan in the tribunal. 
63. [63]
    This ground of appeal also succeeds.

(c) the claims were not to recover a debt or liquidated demand of money

64. [64]
    On the question whether or not the claim was one for recovery of a debt or liquidated demand of money the Adjudicator said:

Besides, the amended claim now appears to be a consumer claim with lack of provision of services after payment for same, entitling the four individuals to a refund.

That certainly puts paid to the argument that the claim is a debt claim.  An assertion of a refund due is not a debt, never has been and never will be, for the reason it never starts out life as a sum of money due and owing referable to a matrix, schedule or yardstick not requiring assessment by the tribunal.

The same argument can be applied to a liquidated demand.  Any refund would be subject to assessment based on extent of services performed.

65. [65]
    The Adjudicator made no findings of fact.  The decision that the claim as amended was not a claim to recover a debt or liquidated demand of money, was made simply on the basis of the amended claim as presented to the tribunal.  
66. [66]
    This does seem to be the correct approach when considering whether a claim is to recover a debt or liquidated demand of money.  In Financial Advisers Australia v Mooney & Anor [2016] QCATA 181, Justice Carmody said that it was the nature of the claim, rather than its prospects of success, that determines jurisdiction, and that in that type of claim the test should be applied at the time the claim is presented.^[19] It may well be different in the case of trader and consumer claims because of the difference of wording in section 12 of the QCAT Act.^[20]

67. [67]
    The Adjudicator was right that where the sum of money due needs to be assessed not by reference to a matrix, schedule or yardstick then the claim is not to recover a debt or liquidated demand of money.  As Justice Alan Wilson, President explained in Hill v Berghofer [2011] QCATA 34:^[21]

A ‘debt or liquidated demand’ is … one where the amount is determined and, in effect, beyond dispute as to how it is calculated.  If the amount depends upon assessment by the court or tribunal, it is not liquidated.

68. [68]
    There is a useful description of what is not a liquidated demand of money in Practice Direction 9 of 2010 which explains what happens when there is an application under section 50A of the QCAT Act for a decision by default where the claim is for unliquidated damages.  It describes unliquidated damages as follows:

Unliquidated  damages  is  where  a  claim  is  made  for  a  sum  which  cannot  be determined without consideration, by the Tribunal, of the applicant’s evidence in support  of  the  claim –for  example,  a  claim  in  which  the  precise  amount  which should  be  awarded  cannot  be  determined  from  the  terms  of  a  prior  agreement between the parties, or some other standard; and must be calculated by reference to invoices, quotations or the like. 

69. [69]
    The source of this can be traced back to Judge Fleur Kingham’s decision in Dubow v Slyvan Developments Pty Ltd [2011] QCATA 281.^[22]
70. [70]
    However, the Adjudicator’s concerns about having to assess the amount of the refund seem to have overlooked the fact that there was no dispute about what course fees had been paid.  Instead, the dispute was about whether they should be refunded.  And if they were to be refunded, they would be refunded in full.  
71. [71]
    That there was no dispute about what course fees had been paid appears from Mr Ryan’s response to the evidence filed by Mr Ritson as ordered by the tribunal on 13 September 2017.  In that document,^[23] Mr Ryan accepted most of the facts presented, but relied amongst other things on the refund policy in the terms and conditions on his website as showing that he was entitled to retain the course fees.  This was confirmed when Mr Ryan cross examined LC at the hearing on 14 March 2019,^[24] and CA and GS at the hearing on 16 May 2019.^[25] It was not suggested to them that they had misstated the course fees which they had paid.  Also it appears that BC’s evidence was agreed.^[26]
72. [72]
    The claim was not based on a breach of contract for failing to perform the services with due care and skill, so the amount of any refund would not turn on ‘the extent of services performed’ which was the Adjudicator’s concern.  It is true that the extent of services performed might have to be considered to decide whether there had been a total failure of consideration, but as can be seen from the discussion below, if there was a total failure of consideration then the course fees would be recoverable as a debt and so this cannot be a jurisdictional issue.
73. [73]
    In this appeal it would be right to consider whether on any other grounds, the claim for the refund was within the tribunal’s jurisdiction as a claim for recovery of a debt or liquidated demand of money.^[27] In this respect, the available authorities picked out from what is now extensive tribunal case law on the subject, tend to show that the claim was within jurisdiction.
74. [74]
    One starting point might be Chief Justice Lord Mansfield’s judgment in Moses v Macferlan (1760) 2 Burr. 1005 (Court of King’s Bench). This judgment is often cited in Australia when discussing the source, and limits of, rights to restitution.^[28] Of value when considering the extent of the tribunal’s jurisdiction, Lord Mansfield described an entitlement to a refund arising from ‘the ties of natural justice’ as a ‘debt’:

If the defendant be under an obligation from the ties of natural justice, to refund, the law implies a debt and gives this action founded in the equity of the plaintiff's case, as it were upon a contract ("quasi ex contractu" as the Roman law expresses it).

75. [75]
    The types of claims to which Lord Mansfield was referring appears from another part of the judgment: 

This kind of equitable action to recover back money which ought not in justice to be kept is very beneficial and, therefore much encouraged.  .. it lies for money paid by mistake, or upon a consideration which happens to fail, or for money got through imposition, express, or implied, or extortion or oppression, or an undue advantage taken of the plaintiff's situation, contrary to laws made for the protection of persons under those circumstances. In one word, the gist of this kind of action is that the defendant, upon the circumstances of the case, is obliged by the ties of natural justice and equity to refund the money.

76. [76]
    Looking more closely at Mr Ritson’s amended claim as presented to the tribunal, he says that prior to the assignment the assignors had a right to a refund of the course fees they had paid.  This right, it was said, arose in four possible ways:

    1. (a)
       for BC, CA and GS because Mr Ryan did not provide ‘any services whatsoever’ to them and for LG for ‘total failure of consideration’; or 
    2. (b)
       for BC, CA, GS and LG because of Mr Ryan’s unjust enrichment if he is permitted to retain the course fees; or

3. (c)
   for BC, CA and GS arising from an implied term that the full course fees would be refunded if the participant was unable to attend the course or sit the relevant aptitude test; or
4. (d)
   for BC, CA, GS and LG a right of rescission because of a false representation which had induced then to enter into the contract, giving them a right to a full refund to restore them to the position they were in before the contract was entered into.

77. [77]
    For (a), it seems incontrovertible that a claim for a refund where there has been a total failure of consideration is within the jurisdiction of the tribunal. In Rains v Scamp [2013] QCATA 96 the appellant had paid surgery fees in advance but then decided not to have the surgery after all. The appellant’s claim for a refund of the fees was dismissed by the tribunal at first instance on the grounds that there was no jurisdiction.  But on appeal, Senior Member Stilgoe said that the claim was for recovery of a debt or liquidated demand because it was for a specific sum of money because of a total failure of consideration.^[29]  
78. [78]
    Although the words ‘total failure of consideration’ are not used in the claim for BC, CA and GS, the claim appears to be on the same basis. Of course the claim would only succeed if indeed there was total failure of consideration. If the participant received some value, then the claim would fail.  
79. [79]
    For (b), in Davis v Gray [2018] QCATA 147 the Appeal Tribunal constituted by Senior Member Howard and Member Howe said that a restitution claim for an ascertained amount of money based on unjust enrichment did appear to fall within the jurisdiction exercised by the tribunal in minor civil disputes as a liquidated demand of money.^[30] A similar thing was said by Justice Carmody in Bradshaw v Whitcombe [2017] QCATA 132, when he remitted a claim for a contribution on the principle of restitution, seemingly on the basis that it was a claim to recover a debt or liquidated demand of money, and by Member Roney QC in Yang & Anor v Wellcamp Properties Pty Ltd [2018] QCATA 161 when considering a claim concerning an ascertained amount of money improperly dealt with out of a trust account.^[31]
80. [80]
    Again, it is clear that a claim for restitution for unjust enrichment is not a damages claim, which would not be a claim for recovery of a debt or liquidated demand of money.  As Mason CJ said in Commissioner of State Revenue (Vict) v Royal Insurance Australia Ltd (1994) 182 CLR 51:^[32]

Restitutionary relief, as it has developed to this point in our law, does not seek to provide compensation for loss.  Instead, it operates to restore to the plaintiff what has been transferred from the plaintiff to the defendant whereby the defendant has been unjustly enriched. As in the action for money had and received, the defendant comes under an obligation to account to the plaintiff for money which the defendant has received for the use of the plaintiff. The subtraction from the plaintiff's wealth enables one to say that the defendant's unjust enrichment has been 'at the expense of the plaintiff', notwithstanding that the plaintiff may recoup the outgoing by means of transactions with third parties.

81. [81]
    For (c), if there is such an implied term then this must be a liquidated amount. It is the same as if there were an express term in the contract stating that the full course fees would be refunded if the participant was unable to attend the course or sit the relevant aptitude test. It seems to me to make no difference if a term to the same effect, is implied rather than express. 
82. [82]
    For (d), there is little QCAT authority.  In ARGO International Pty Ltd v ECQAS Pty Ltd & Ors [2014] QCAT 184, Adjudicator Trueman decided that a claim for refund of monies paid for the purchase of shares induced by misleading and deceptive information was within the jurisdiction of the tribunal as a ‘liquidated claim’.^[33]  However in S&M Balla Pty Ltd v Queensland Jet Blasting Pty Ltd & Anor [2016] QCAT 446 a franchisee sought a refund on the basis of misrepresentations by the franchisor. Adjudicator Bertelsen said it was well settled that an application for a refund cannot be construed as a debt or liquidated demand for money.^[34]
83. [83]
    It is instructive however, to consider the nature of the claim made here.  Again, this is not a claim for damages. Instead it is a claim for an award which would restore the parties to their position before the contract was entered into, in other words a restitutio in integrum.  Although the tribunal would have no jurisdiction to declare the assignors’ contracts rescinded,^[35] such an order is not requested in the amended claim. Instead the claim appears to be put on the basis that the contracts have already been rescinded by the assignor’s requests for a refund.  
84. [84]
    In Pitman & Anor v Lwin [2021] QCATA 48, Member Howe did state that in its minor civil dispute jurisdiction the tribunal has no jurisdiction to grant relief based solely on a misrepresentation.  But here the Member was referring to the jurisdiction in section 18 of the Australian Consumer Law in respect of misleading or deceptive conduct.  The Member was not referring to a claim for a money order consequential upon a rescission at common law. The Australian Consumer Law has not codified and replaced the common law, merely supplemented it.^[36]  
85. [85]
    As explained in Coastal Estates Pty Ltd v Melevende [1965] VR 433 in the Supreme Court of Victoria (Full Court), where a contracting party discovers that they were induced to enter into a contract by a material misrepresentation made by the other contracting party, then it is possible at common law to elect to rescind the contract by a demand for return of all moneys paid under the contract.^[37] And that a claim then made to the court for the return of such moneys is a claim for a repayment of what has been paid because of total failure of consideration and is a claim in debt.^[38] 
86. [86]
    For our purposes when considering whether such a claim is a claim to recover a debt or liquidated demand of money and therefore within the tribunal’s jurisdiction as a minor civil dispute, it cannot be distinguished from a claim for a refund for total failure of consideration. If the matter needs further analysis, it is possible to see that the restoring award which is being sought is an ascertained and uncontested amount.  It is the course fees which were paid. Like in (a) above, it is an all or nothing claim for each of the assignors.   
87. [87]
    So leaving aside the merits of these claims for the moment, the claim as amended  seems to be a claim to recover a debt or liquidated demand of money and is within the jurisdiction of the tribunal.  

(d) questionable whether the tribunal could hear a consumer claim brought by an assignee

88. [88]
    Without reaching a conclusion on this question, the Adjudicator rightly queried whether an assignee of a trader and consumer claim could bring a minor civil dispute.
89. [89]
    When this application was last before me in the Appeal I opined that if the claims in respect of BC, CA, and GS were not claims to recover a debt or liquidated demand of money, then they may be ‘consumers’ and Mr Ryan made be a ‘trader’ within the definitions applying to those terms in the QCAT Act, and if so that the tribunal would still have jurisdiction over the claim.^[39]  

90. [90]
    Regrettably this overlooked the fact that Mr Ritson was only suing as an assignee. As the Adjudicator rightly pointed out it was questionable whether an assignee would be able to bring such a consumer claim. In questioning this, the Adjudicator was probably mindful of section 12(4)(b) of the QCAT Act which only permits ‘the consumer’ to bring the claim.

Other grounds of appeal

90. [91]
    Mr Ritson also appeals on other grounds.  
91. [92]
    One is that he was denied natural justice in that the Adjudicator permitted Mr Ryan to give unsworn evidence and failed to give him an opportunity to cross examine, contrary to section 95(1)(b) of the QCAT Act.  
92. [93]
    Another is that the Adjudicator did not deal with his formal application under section 48 to have a final decision made in his favour due to Mr Ryan’s alleged breaches of tribunal orders (or if it was dealt with failing to give adequate reasons for the decision).
93. [94]
    And it is also said that the tribunal considered material into which he had not been copied.
94. [95]
    Since I have resolved the appeal on other matters and have decided that the matter must be remitted back to the tribunal, it is unnecessary for me to decide these further grounds of appeal.

How the appeal should be disposed of

96. [96]
    I give leave to appeal and allow the appeal. The decision dismissing the application is set aside.
97. [97]
    Since the Adjudicator made no findings of fact and this is an appeal on a point of law under section 146 of the QCAT Act, I have no option but to remit it back to the tribunal for reconsideration.
98. [98]
    The question arises how that reconsideration should be carried out. Obviously I have in mind that by section 31 of the Human Rights Act 2019 (Qld), but also as a matter of procedural fairness and natural justice, parties have a right to a fair hearing. That right may only be limited when justified, taking into account all the constraints and factors in section 13 of the Act.

99. [99]
    Having regard to the history of the matter and all the material on the file it would seem quite unfair to expect the parties to have to undergo a completely fresh hearing.  I have read the transcripts of the two hearings on 14 March 2019 and 16 May 2019 and the documentary evidence which has been submitted, and I am sure that there is no need to repeat those hearings. In particular, I have in mind that Mr Ritson called five witnesses and they were cross examined by Mr Ryan, sometimes effectively.
100. [100]
     I note that in the usual way for such matters, there was a lot of material filed which was not strictly proved. Also that Mr Ryan decided not to take the oath and give formal evidence to avoid being cross examined by Mr Ritson, and then proceeded to make oral statements to the tribunal. Mr Ritson objects to this being considered by the tribunal because he did not have an opportunity to cross examine Mr Ryan.
101. [101]
     The tribunal is used to handling such things and is not bound by the rules of evidence.^[40] The tribunal making a final decision on the matter will apply the appropriate weight to all the material before it and it would be quite inappropriate to try to exclude or edit any of the material in a case of this sort.
102. [102]
     For that reason, my direction is that all material filed in the minor civil dispute file  and the transcripts of the two hearings may be taken into account in the absolute discretion of the decision maker, and that the matter should be finalised ‘on the papers’ without a further hearing. I have however, given directions for objections to that course of action to be heard, and for final written submissions to be made if the parties wish.