Lopez v Brisbane Boys College
[2021] QCATA 47
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- Unreported Judgment
- Lopez v Brisbane Boys College[2021] QCATA 47
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Lopez v Brisbane Boys College[2021] QCATA 47
Lopez v Brisbane Boys College[2021] QCATA 47
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Lopez & Anor v Brisbane Boys College [2021] QCATA 47 |
PARTIES: | franklin lopez |
mairym alfaro | |
(applicants/appellants) | |
v | |
brisbane boys college | |
(respondent) | |
APPLICATION NO/S: | APL 318-20 |
ORIGINATING APPLICATION NO/S: | MCD 0053436/18 MCD 0491/20 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 16 March 2021 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Ann Fitzpatrick |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – OTHER CASES – where interlocutory decision – exercise of discretion – where minor civil dispute – whether leave to appeal should be granted – whether breach of natural justice – whether expectation of an oral hearing – whether substantial injustice Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 4(c), s 28 Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 House v R (1936) 55 CLR 499 In re Will of F.B Gilbert (dec.) (1946) 46 SR (NSW) 318 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 Lyons v Dreamstarter Pty Ltd [2011] QCATA 142 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 |
APPEARANCES & REPRESENTATION: | |
Applicants: | Self-represented |
Respondent: | Paxton-Hall Lawyers Pty Ltd |
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]The applicants Mr Lopez and Ms Alfaro filed an application for leave to appeal or appeal on 14 October 2020. The application relates to an interlocutory decision made on 18 September 2020 by an Adjudicator sitting in the minor civil dispute – minor debt jurisdiction of the Tribunal.
- [2]The Adjudicator ordered that:
- (a)the respondent Brisbane Boys College (BBC) may be legally represented.
- (b)The applicants Mr Lopez and Ms Alfaro may be legally represented if they wish.
- (c)The application for an order declaring the affidavit of Paul Brown inadmissible is refused (the decision).
- (a)
- [3]The proceeding below is comprised of two matters ordered to be heard together. In MCD 0053436/18, BBC claims outstanding school fees. In MCD491/20, Mr Lopez and Ms Alfaro claim damages for breach of contract, or in the alternative compensation for expectation loss arising out of a breach of section 18 of the Australian Consumer Law.
Grounds of appeal
- [4]Mr Lopez and Ms Alfaro seek leave to appeal the decision on the ground that they were not afforded natural justice because:
- (a)they were not offered an oral hearing of the interlocutory applications giving rise to the decision;
- (b)the affidavit of Paul Brown was delivered by BBC five days before the hearing; and
- (c)Mr Brown’s affidavit purported to amend BBC’s statement of claim which had not set out the basis on which its claim is made.
- (a)
Leave to appeal
- [5]Where an interlocutory decision involves the exercise of a discretion, leave will not usually be granted unless a matter of general principle is involved, or one of the parties will suffer an injustice if the original decision is allowed to stand.[1] A matter of general principle is a matter of importance about which a decision of the Appeal Tribunal would be of public advantage.[2]
- [6]An appeal tribunal will not usually interfere with an interlocutory decision where substantive rights are not determined by the decision.[3]
- [7]An appeal tribunal also proceeds on a presumption that a discretion has been exercised correctly. An applicant must show that the decision was wrong, not simply that the discretion could have been otherwise exercised.[4]
- [8]The application filed on 16 September 2020 which gave rise to the decision seeks orders that BBC’s application for leave to be represented be dismissed; that the affidavit of Paul Brown filed by BBC is declared inadmissible and ineffectual; and that BBC’s solicitors stop representing BBC without leave (Initial Application).
- [9]Mr Lopez and Ms Alfaro assert they will suffer an injustice if the decision is allowed to stand.
Have Mr Lopez and Ms Alfaro been denied natural justice because there was no oral hearing of the interlocutory proceeding?
- [10]Mr Lopez and Ms Alfaro rely on Lyons v Dreamstarter Pty Ltd.[5] In that case a relevant factor in the grant of leave to appeal was that Mr Lyons had a reasonable basis for his expectation that his application would be determined at an oral hearing and that he would file further evidence and make oral submissions. It was found that the Tribunal did not observe the rules of natural justice in the way in which it heard Mr Lyons’ application.
- [11]Mr Lopez and Ms Alfaro submit that the Tribunal below did not conduct an oral hearing in relation to their Initial Application. Mr Lopez and Ms Alfaro suggest that because of the proximity to the ultimate hearing listed for 21 April 2020, the Tribunal should have dealt with the Initial Application at an oral hearing and that they were denied an opportunity to be heard.
- [12]I note that the Initial Application is accompanied by detailed submissions.
- [13]The Tribunal file reveals an email from one of the Tribunal’s Client Services Officers to Mr Lopez dated 14 September 2020 attaching a copy of BBC’s application for leave to be represented at the hearing of the matters. The email provides:
You are permitted to lodge a written comment, reply or submission in respect of this latest Application. There is no particular form required.
These can be lodged by email, post or in person and must be received by the registry by 12.00pm 16 September 2020 at the latest.
This matter will be placed before the Tribunal for consideration and directions after that date.
Parties are not required to appear in person on this day but may be required at a later stage.
If you have any questions please contact the QCAT registry on …
- [14]On 15 September 2020 BBC served the affidavit of Paul Brown sworn 15 September 2020 on Mr Lopez and Ms Alfaro.
- [15]On 16 September 2020 Mr Lopez and Ms Alfaro filed their Initial Application.
- [16]On 17 September 2020 Mr Lopez enquired as to the status of the interlocutory applications.
- [17]On 18 September 2020 the Initial Application and BBC’s application for leave for legal representation were determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). The orders the subject of the application for leave to appeal were made.
- [18]Unlike Lyons’ case, the Tribunal has given no indication that Mr Lopez and Ms Alfaro’s Initial Application would be dealt with by way of an oral hearing. In fact, they were told that there was no need for an appearance with respect to the application for leave for legal representation.
- [19]Mr Lopez and Ms Alfaro have not said what other submissions they may have made if an oral hearing had been granted and how those further submissions may have altered the outcome of the matter.
- [20]Mr Lopez and Ms Alfaro have not submitted that the decision was made upon any misapprehension of fact or error of law.
- [21]I find that Mr Lopez and Ms Alfaro were never given any indication that an oral hearing of the interlocutory matters before the Tribunal would occur. The fact that the applications were dealt with close to the hearing date does not of itself suggest a reason to conduct an oral hearing when full written submissions have been made by both parties. If, as a consequence of the decision, Mr Lopez and Ms Alfaro had insufficient time to adequately prepare for the hearing, they were not prevented from seeking an adjournment.
- [22]Mr Lopez and Ms Alfaro made their application supported by submissions. They were not denied an opportunity to be heard in the matters.
- [23]I am not satisfied that determination of the interlocutory applications on the papers has resulted in a breach of natural justice or a substantial injustice to Mr Lopez and Ms Alfaro, such that leave to appeal should be granted.
Has there been any injustice as a result of delivery of Mr Brown’s affidavit five days before hearing?
- [24]Mr Lopez and Ms Alfaro submit that it is unjust that they only received Mr Brown’s affidavit five days before the hearing. Further, they say that Mr Brown’s affidavit amounts to an amendment to BBC’s statement of claim, raising matters not set out in the statement of claim, without the leave of the Tribunal to do so.
- [25]On 15 April 2020 it was directed that both parties file and serve copies of all documents on which they intend to rely at the hearing, within seven days prior to the hearing. The hearing was later set down for 21 September 2020.
- [26]On 15 September 2020 Mr Brown’s affidavit was served on Mr Lopez and Ms Alfaro.
- [27]Mr Lopez and Ms Alfaro have sought to have the affidavit declared inadmissible and ineffectual on the basis that it amended BBC’s application, without the leave of the Tribunal to do so.
- [28]The affidavit was delivered pursuant to Tribunal direction. The Tribunal had previously dealt with an application for delivery of particulars. It did not order particulars, but instead required the parties to file the material on which they each relied in the matter.
- [29]Mr Brown’s affidavit sets out the history of the claimed outstanding school fees and attaches relevant documents. The affidavit addresses all matters one would expect to be raised so that the Tribunal has sufficient evidence on which to consider the claim.
- [30]The key objection to the affidavit is that it purportedly effects an amendment to BBC’s statement of claim, by producing evidence in circumstances where the application for minor civil dispute – minor debtgave no reasons for the orders sought and Mr Lopez and Ms Alfaro did not otherwise know what case they must meet. No response to the application for payment of school fees has ever been filed by Mr Lopez and Ms Alfaro.
- [31]Full written submissions were made to the Tribunal in the Initial Application. There is no suggestion that Mr Lopez and Ms Alfaro wished to make any further submissions or whether any further submission would have resulted in a different outcome.
- [32]The Tribunal in its minor civil disputes – minor debt jurisdiction is intended to act quickly with a minimum of formality in order to efficiently deal with disputes within its jurisdiction.[6] There are no pleadings and the rules of evidence do not apply. Procedure is at the discretion of the Tribunal. The Tribunal must ensure so far as is practicable, that all relevant material is disclosed to the Tribunal to enable it to decide the proceeding with all the relevant facts. It may admit into evidence the contents of any document despite the noncompliance with any time limit or other statutory requirement.[7]
- [33]The application for leave to appeal does not identify what prejudice Mr Lopez and Ms Alfaro may suffer as a result of delivery of Mr Brown’s affidavit. They have not given any ground of objection to the contents of the affidavit other than it gives particulars of the claim not set out in the statement of claim.
- [34]As to the point that the affidavit was delivered close to the date of hearing, that is no longer an issue as the hearing has been adjourned. There cannot now be any suggestion of surprise.
- [35]The affidavit of Mr Brown provides a full explanation for BBC’s claim. It assists the Tribunal and informs Mr Lopez and Ms Alfaro of the case they must meet. The Adjudicator has considered the written submissions of Mr Lopez and Ms Alfaro and has exercised his discretion not to declare the affidavit inadmissible. Given the statutory framework for the conduct of minor civil disputes in the Tribunal the decision is unremarkable.
- [36]No substantive right of Mr Lopez and Ms Alfaro has been determined as a result of the interlocutory decision refusing to declare inadmissible the affidavit of Mr Brown before the hearing.
- [37]It remains open to Mr Lopez and Ms Alfaro to raise objections to the affidavit at the hearing if there is a proper basis to do so.
- [38]The circumstances do not suggest any breach of natural justice resulting in a substantial injustice to Mr Lopez and Ms Alfaro by delivery of Mr Brown’s affidavit five days prior to the hearing or because it allegedly purports to amend the claim made by BBC.
- [39]For these reasons no substantial injustice is demonstrated to justify the grant of leave to appeal on this ground.
Was it unjust that leave was granted to BBC for legal representation?
- [40]Mr Lopez and Ms Alfaro submit that it was unjust there was no oral hearing in relation to their objection to BBC’s application for leave for legal representation. I have earlier concluded that there was no breach of natural justice arising out of the matter being dealt with on the papers.
- [41]For completeness I note that detailed written submissions were made to the Tribunal in relation to Mr Lopez and Ms Alfaro’s objection to legal representation. It is a matter of discretion as to whether leave for legal representation is given. Mr Lopez and Ms Alfaro have not said what further submission they may have made orally or how it may have altered the outcome. There is nothing to suggest that exercise of the discretion has miscarried. Leave for legal representation was granted to both parties. I note that Mr Lopez is himself a practising solicitor. The proceeding has so far been attended by a number of interlocutory applications and an application for leave to appeal or appeal raising sophisticated legal issues. Mr Lopez and Ms Alfaro’s claim against BBC itself makes potentially difficult legal claims. It is unsurprising that the discretion was exercised to grant legal representation.
- [42]Furthermore, leave was sought and considered upon the written submissions of both parties. Mr Lopez and Ms Alfaro were not denied an opportunity to make submissions on the application. There has been no denial of natural justice.
- [43]I also observe that Mr Lopez and Ms Alfaro have no legal basis upon which to object to BBC taking legal advice or instructing solicitors to communicate with Mr Lopez and Ms Alfaro. The only basis upon which leave is required is for the purpose of representation in the proceeding.
- [44]For these reasons no substantial injustice is demonstrated to justify the grant of leave to appeal on this ground.
Is there any question of general principle?
- [45]No question of general principle arises in this matter where future litigants would benefit from an appellate decision.
BBC’s submissions
- [46]BBC submits that leave to appeal should not be granted. It traverses the matters set out in this decision in its submissions. BBC submits that it will be prejudiced by further delay in the hearing of the substantive issues in the matters. BBC’s claim was filed on 13 December 2018 and has not yet been determined.
- [47]It is not in the interests of justice that the matter be further delayed.
Orders
- [48]Leave to appeal is refused.
- [49]The application for leave to appeal or appeal is dismissed.
Footnotes
[1]Kehl v Board of Professional Engineers Queensland [2010] QCATA 58, [6].
[2]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577.
[3]Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, citing with approval In re Will of F.B Gilbert (dec.) (1946) 46 SR (NSW) 318, 323.
[4]House v R (1936) 55 CLR 499; Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621, 627.
[5] [2011] QCATA 142.
[6]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 4(c).
[7] Ibid, s 28.