Exit Distraction Free Reading Mode
- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Walker ATF Arcana Trust v Waterfront Agents Pty Ltd (No 2)  QCATA 22
VICTORIA SIMONE WALKER AS TRUSTEE FOR ARCANA TRUST
WILLIAM WALLACE WALKER AS TRUSTEE FOR ARCANA TRUST
WATERFRONT AGENTS PTY LTD
10 February 2021
On the papers
Leave to appeal refused.
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – CONTROL OVER PROCEEDINGS – OTHER CASES – where allegation of denial of natural justice – where Tribunal has mandate to deal with matters quickly – where appellants given opportunity to present case – where evidence capable of supporting findings
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 28, s 97, s 143
Armstrong v Kawana Island Retirement Village  QCATA 324
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Bradlyn Nominees Pty Ltd v Saikovski  QCATA 39
Coulton v Holcombe (1986) 162 CLR 1
Creek v Raine & Horne Real Estate Mossman  QCATA 226
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Gollan v Vaccaneo  QCATA 228
King v ASIC  QCA 352
Kioa v West (1985) 159 CLR 550
Mataitini v North Shore Realty Sunshine Coast  QCATA 154
Piric & Anor v Claudia Tillier Holdings Pty Ltd  QCATA 152
Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe  QCATA 212
Schepis & Anor v QM Properties Pty Ltd  QCATA 197
Slater v Wilkes  QCATA 12
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Terera & Anor v Clifford  QCA 181
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
Walker ATF Arcana Trust v Waterfront Agents Pty Ltd  QCATA 98
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
What is this appeal about?
- This is the second appeal by William Wallace Walker and Victoria Simone Walker as trustees for Arcana Trust for Waterfront Agents Pty Ltd about their application to refund a deposit of $2,000.00 they paid to purchase a unit.
- The Appeal Tribunal dismissed most of the grounds of their first appeal relating to alleged denial of procedural fairness and findings of fact, but granted leave to appeal and remitted their application for rehearing by a different Tribunal, due solely to inadequate reasons. Their application was then reheard and dismissed by a different Member. Mr and Mrs Walker have now appealed that decision.
- In this second appeal, Mr and Mrs Walker have sought to dissect the transcript of the hearing and reargue their case. However, that is not the proper basis for an appeal. The Tribunal’s reasons are not to be scrutinised ‘with an eye keenly attuned to error’. An application for leave to appeal is not an occasion to re-try the case presented at trial, as if the latter were a ‘preliminary skirmish’. The Tribunal must act fairly and according to principles of natural justice with as little formality and as much speed as matters permit. A clear purpose of the requirement for leave, before a party has the right to appeal, is to prevent any attempt to simply conduct a retrial on the merits of the case.
- Mr and Mrs Walker’s submissions about the learned Member not making certain findings, not referring to all the evidence, and not providing reasons to address all the points in their affidavit and other submissions do not align with the Tribunal’s statutory purview to conduct proceedings in a way that is fair, just, economical, informal and quick or established principle:
Where one set of evidence is accepted over a conflicting set of evidence, the trial judge should set out his findings as to how he comes to accept the one over the other. But that is not to say that a judge must make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear.
Further, it may not be necessary to make findings on every argument or destroy every submission, particularly where the arguments advanced are numerous and of varying significance.
… it is the purpose which the reasons serve which assumes primary importance in determining the content of the reasons. That purpose must be weighed against other considerations… the content required of a statement of reasons is to be measured against the burden that the provision of reasons imposes on the judicial system. The reason for this is that the giving of overly elaborate reasons can serve to undermine public confidence in the judiciary and in the judicial system in the same way that insufficient reasons can… an overly onerous duty to provide reasons increases costs and delay in the judicial system which has the effect of undermining public confidence in the judicial system.
It does not automatically follow that because the reasons for decision are inadequate then an appealable error has occurred. Examination of nearly any statement of reasons with a fine-tooth comb would throw up some inadequacies. Indeed, an appeal court will reserve any intervention to those situations in which it is left with no choice: where no reasons have been given in circumstances where there was an obligation to provide them an in circumstances where a statement of reasons is so inadequate as to constitute a miscarriage of justice. In other words, the statement of reasons must be looked at as a whole and the material inadequacies identified and considered. (Our emphasis)
- This reasoning applies a fortiori to the Tribunal, which is statutorily mandated to conduct proceedings in an informal way that minimises costs to the parties and is as quick as is consistent with achieving justice. The primary reasons need only refer to the relevant evidence, material findings of fact (and reasons for those findings) and the applicable law and reasons for applying it.
- An appellable error is not demonstrated by identifying other possibilities not mentioned or not apparently considered - the Tribunal may decide the case in a way that does not require the determination of a particular submission and can therefore be simply put aside. The Tribunal may have unexpressed findings of fact. If the learned Member’s reasons do not specifically refer to an item of evidence, it does not mean it was overlooked. Rather, it is reasonable to infer that the learned Member did not consider it relevant or sufficient to outweigh the evidence upon which findings were made.
- The learned Member expressly rejected Mr and Mrs Walker’s claim that they signed the contract as a result of false, misleading or deceptive conduct. Although the learned Member did not expressly refer to “unconscionable conduct” or specific provisions of consumer law, it is implicit from his reasons that he did not consider Waterfront’s conduct, or the surrounding circumstances, were sufficient to vitiate the transaction. The learned Member was alive to the general legal principles but did not consider the facts were sufficient to show any transgression. Having heard the evidence of both parties, the learned Member was in the best position to assess credibility. It is not an error to prefer one version of facts to another.
- In making his findings, it is clear that the learned Member preferred the evidence of Waterfront Agents Pty Ltd. That is unremarkable and entirely within the learned Member’s purview. The learned Member referred to relevant evidence provided at the original hearing to support his findings, including the contract signed and initialled by Mr and Mrs Walker, the later counter-offer initialled by Mr and Mrs Walker, the trust account receipt noting the initial deposit and an email from Mr and Mrs Walker acknowledging the contract, their rights and the consequences of termination. The learned Member referred to relevant evidence to support his ultimate findings, which he was entitled to weigh accordingly. The learned Member’s findings are supported by the evidence.
- Mr and Mrs Walker referred to a video record of a meeting they claim would confirm they were “entrapped” into signing the document. It is not incumbent upon the Tribunal to acquire this evidence on their behalf. Mr and Mrs Walker had an obligation to act in their own best interests by presenting their case, calling relevant witnesses and applying for a Notice to Produce if seeking to require a witness to produce evidence.
- Mr and Mrs Walker have again raised denial of procedural fairness as a ground of appeal. They referred to the learned Member not inviting either party to make an opening statement or closing submissions, not having read the file before the hearing, interruptions, his questioning of the parties, being “sarcastic”, “denigrating”, “aggressive”, not being specific, biased, asking different questions of each party, asking leading questions of the other party, allowing the agent’s personal attendant to give evidence and not ensuring they received a copy of the agent’s new statement prior to the hearing.
- The Tribunal is not bound by the rules of evidence and, subject to procedural fairness, may ask questions of parties and their witnesses as it sees fit. Procedural fairness is a flexible notion that must be commensurate with the nature and demands of the jurisdiction – it is a matter of construction of a particular statutory power. The requirements of procedural fairness must be adjusted to the statutory framework governing the Tribunal.
- Minor civil dispute applications are conducted quickly and efficiently to meet the demands of this high-volume jurisdiction. The Tribunal’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, ‘…the public as a whole, not merely the parties to the proceedings.’
- Mr and Mrs Walker’s appeal sought to scrutinise the learned Member’s conduct of the hearing to a level that is inconsistent with the Tribunal’s statutory mandate to conduct proceedings in an informal way that minimises costs to parties and is as quick as is consistent with achieving justice, particularly in the busy and demanding minor civil disputes jurisdiction, where tens of thousands of applications are processed and determined each year.
- The Tribunal is not a jurisdiction requiring formal opening statements and closing submissions, exchange of documents or cross-examination as a matter of course, but may instead inform itself in any way it considers appropriate – particularly in the high-volume minor civil disputes list where time is of the essence. Parties may not be aware of all of the material relied upon by their opponent before the hearing. Within the context of the Tribunal’s minor civil disputes jurisdiction, Mr and Mrs Walker were given a sufficient opportunity to give and receive evidence.
- Bias is a serious allegation. Allegations of bias require more than mere speculation. The threshold to prove bias is high:
… if a fair-minded lay bystander might reasonably apprehend that the decision-maker might not bring an impartial mind to the determination of the issues that he or she must decide.
- Mrs Walker appeared for both herself and Mr Walker at the hearing. Upon reading the transcript, nothing suggests that Mrs Walker was intimidated, or the learned Member’s conduct of the hearing was untoward. Mrs Walker did not raise any concerns of aggressiveness or intimidation with the learned Member. While the transcript reveals some interruptions and descriptive terms such as “dogmatic”, none of these were inappropriate within the context of a hearing conducted within pressing time constraints and where the Tribunal is mandated to ensure, so far as is practicable, that all relevant material is disclosed to the Tribunal to enable it to decide the proceeding with all relevant facts.
- In exercising its inquisitorial powers, parties must expect some degree of exploration and discussion of issues by the Tribunal during the usual course of a hearing. Sometimes voices may even be raised. The learned Member is not required to ask the same number or type of questions to each party. The questioning and interruptions were part of managing the hearing by directing the parties to what is relevant and in an endeavour to focus the hearing. The learned Member’s questioning was an appropriate exercise of his inquisitorial powers in the minor civil disputes jurisdiction.
- Regardless of whether the learned Member read the file before the hearing, it is clear that he asked relevant questions of the parties and considered their evidence and the material on the file during the hearing, before going away to further consider the evidence and deliver his ultimate findings. The learned Member asked relevant questions of the parties and gave them an opportunity to respond, referring to supporting material where appropriate. By doing so, he focused on the issues and used time and resources efficiently, consistent with the Tribunal’s mandate. Extending the requirements of procedural fairness beyond this is inconsistent with the QCAT Act and would make the minor civil disputes jurisdiction cumbersome.
- The learned Member gave Mrs Walker an opportunity to present material to prove Mr and Mrs Walker’s case and to rebut the agent’s evidence. She had enough time to consider the evidence and respond. Nothing in the transcript suggests that Mr and Mrs Walker were denied a fair hearing by interruptions or the learned Member’s questioning of the parties.
- Both parties filed material to support their case and were given an opportunity to present their case, consistent with the objects of the QCAT Act and within the demands of the jurisdiction. Having read the transcript, the Appeal Tribunal is satisfied that the allegation of bias is without basis.
- Because this is an appeal from a minor civil dispute, leave is required. Leave will not be granted where a party simply desires to re-argue the case on existing or additional evidence. The appeal process is not an opportunity for a party to again present their case. It is the means to correct an error by the Tribunal that decided the proceeding.
- Having read the transcript and considered the evidence, the Appeal Tribunal finds nothing to indicate that the learned Member acted on a wrong principle, or made mistakes of fact affecting his decision, or was influenced by irrelevant matters. The evidence was capable of supporting the learned Member’s findings.
- There is no question of general importance for the Appeal Tribunal to determine. There is no reasonably arguable case that the Tribunal was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted.
- Leave to appeal is refused.
Walker ATF Arcana Trust v Waterfront Agents Pty Ltd  QCATA 98.
 Walker ATF Arcana Trust v Waterfront Agents Pty Ltd  QCATA 98.
 WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, .
 Mataitini v North Shore Realty Sunshine Coast  QCATA 154,  citing Coulton v Holcombe (1986) 162 CLR 1, 7.
 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(2).
 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(a).
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(d).
 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b).
 King v ASIC  QCA 352, citing with approval Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430.
 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 4(c).
 Armstrong v Kawana Island Retirement Village  QCATA 324, .
 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 269, 270.
 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 272.
 Transcript, page 1-58, lines 36 to 40.
 Transcript, page 1-59, lines 1 to 11.
 Slater v Wilkes  QCATA 12, .
 Transcript, page 1-58, lines 7 to 46.
 Transcript, page 1-58, lines 19 to 40.
 Creek v Raine & Horne Real Estate Mossman  QCATA 226,  (Wilson J).
 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 97.
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(b).
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(a).
Kioa v West (1985) 159 CLR 550, 584-585.
Creek v Raine & Horne Real Estate Mossman  QCATA 226,  (Wilson J).
Creek v Raine & Horne Real Estate Mossman  QCATA 226,  (Wilson J).
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 4(c).
Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe  QCATA 212,  (Wilson J).
 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(b).
 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(c).
 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344-5 .
 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(e).
 Gollan v Vaccaneo  QCATA 228.
 Schepis & Anor v QM Properties Pty Ltd  QCATA 197.
 The transcript shows a break of four hours between the parties closing their cases and the Member’s delivery of reasons: Transcript page 1-57, lines 9 to 11.
 Transcript, page 1-4, lines 44 to 45; pages 1-6 to 1-22.
 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3).
 Piric & Anor v Claudia Tillier Holdings Pty Ltd  QCATA 152,  (Wilson J).
 Bradlyn Nominees Pty Ltd v Saikovski  QCATA 39, .
 Terera & Anor v Clifford  QCA 181.
- Published Case Name:
Walker ATF Arcana Trust v Waterfront Agents Pty Ltd (No 2)
- Shortened Case Name:
Walker ATF Arcana Trust v Waterfront Agents Pty Ltd (No 2)
 QCATA 22
10 Feb 2021