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Pitman v Lwin[2021] QCATA 48

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Pitman & Anor v Lwin [2021] QCATA 48

PARTIES:

Maria Pitman

(first applicant/appellant)

SIGN SCULPT PTY LTD

(second applicant/appellant)

v

crest lwin

(respondent)

APPLICATION NO/S:

APL170-20

ORIGINATING

APPLICATION NO/S:

MCDO1106-19 Brisbane

MATTER TYPE:

Appeals

DELIVERED ON:

23 March 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

  1. Leave to appeal granted.
  2. The appeal is allowed.
  3. The decision made 5 June 2020 is set aside.
  4. Matter MCDO1106-19 is returned to a differently constituted Tribunal for further determination according to law with the hearing of fresh evidence as deemed appropriate by the parties.
  5. Maria Pitman is removed as a respondent from matter MCDO1106-19.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where the respondent commenced minor civil dispute consumer dispute proceedings against the first applicant as a trader – where the first applicant was an employee of the trader, the second applicant – where the second applicant was joined at a hearing before an Adjudicator as a respondent to the claim without service of the minor civil dispute claim being served on that party – where judgment was entered against both respondents in the action below – where the second applicant was not accorded natural justice – where the judgment against the first applicant was beyond jurisdiction

Competition and Consumer Act 2010 (Cth) Schedule 2 s 18

Fair Trading Act 1989 (Qld) s 50

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 12, s 226

Pickering v McArthur [2005] QCA 294

APPEARANCES &

REPRESENTATION:

 

First Applicant:

Self-represented

Second Applicant:

Maria Pitman

Respondent:

No appearance

 

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]
    Mr Lwin wanted graphic design vinyl wrapping applied to his motor vehicle. He engaged a firm trading as Sign Sculpt to do that. At Sign Sculpt he dealt only with Ms Pitman.
  2. [2]
    Sign Sculpt did the work but Mr Lwin was not happy with the job. He complained to Ms Pitman but she would not accept that Sign Sculpt had done anything wrong. She said the work had been done to his instructions and design and was of good quality.
  3. [3]
    Mr Lwin commenced minor civil dispute proceedings in the Tribunal. In one of the early email exchanges between Mr Lwin and Ms Pitman, Ms Pitman had stated she was the owner of the business. Mr Lwin therefore filed a consumer dispute against Ms Pitman as respondent.
  4. [4]
    The matter came on for hearing before an Adjudicator. At that hearing Ms Pitman said she appeared on her own behalf and not Sign Sculpt. She denied she was the owner of the business. She said that business was carried on by Sign Sculpt Pty Ltd and she did not represent that company.
  5. [5]
    The Adjudicator concluded the correct respondent to the claim brought by Mr Lwin was Sign Sculpt Pty Ltd as trustee for the Pitman Family Trust. She ordered that that company be joined to the action as a respondent. The Adjudicator refused to remove  Ms Pitman as a respondent however because of the email she had sent to Mr Lwin saying that she was the owner of the business.
  6. [6]
    After a hearing the Adjudicator gave judgement in favour of Mr Lwin for the amount of his claim against both respondents.
  1. [7]
    Ms Pitman and Sign Sculpt Pty Ltd seek leave to appeal that decision.
  2. [8]
    Given this is an appeal from a decision made in the Tribunal’s minor civil dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.[1] 
  3. [9]
    Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.[2] 
  1. [10]
    In the application for leave to appeal the respondents say the Adjudicator erred in a number of respects in the hearing below. All complaints allege error of law.
  2. [11]
    First that natural justice was not accorded to Sign Sculpt Pty Ltd because it was not named as a respondent to the action before hearing, it was never served with the application for minor civil dispute and it was not represented at the hearing.
  3. [12]
    Second, that the Adjudicator erred in finding against Ms Pitman as a respondent.
  4. [13]
    Third, that Ms Pitman was not accorded natural justice by denying her a right to attend the hearing in person and requiring her to attend by telephone.
  5. [14]
    Fourth, that the Adjudicator erred in finding in favour of Mr Lwin on his claim where there was no evidence that the signage work was defective.

Sign Sculpt Pty Ltd was not a named respondent

  1. [15]
    It is very clear that Sign Sculpt Pty Ltd was never served in accordance with the Rules of the Tribunal with the application for minor civil dispute. That company was not named as a respondent in the document. As such, though Ms Pitman was served with the application at the company’s registered office,[3] there was no service of a minor civil dispute claim on Sign Sculpt Pty Ltd as respondent.
  2. [16]
    Accordingly it was not a party to the action when the matter was called on for hearing before the Adjudicator and Ms Pitman said she had no instructions to represent Sign Sculpt Pty Ltd.
  3. [17]
    The fact that the sole director and shareholder of Sign Sculpt Pty Ltd was admitted by Ms Pitman to be her husband had no bearing on the matter. The relationship between Ms Pitman and the director and shareholder of Sign Sculpt Pty Ltd clearly influenced the Adjudicator, but Sign Sculpt Pty Ltd was and is an independent legal entity in the eyes of the law. The corporate veil having been drawn (and relied on by Ms Pitman perhaps), it was not for the Tribunal to lift it for the purpose of expedient dispatch of the matter before the Tribunal.
  4. [18]
    Once the Adjudicator determined, as she did, that the correct respondent was Sign Sculpt Pty Ltd, and given that company had not been served and Ms Pitman did not claim standing to represent it at the hearing, there was only one course available. Sign Sculpt Pty Ltd was joined by the Adjudicator as a respondent but Mr Lwin was then obliged to serve the company with an appropriately amended application for minor civil dispute claiming against the company as respondent.
  5. [19]
    That was not done. The Tribunal has made an error of law. It is appropriate to grant leave to appeal and allow the appeal on this ground.

The correct respondent was Sign Sculpt Pty Ltd not Ms Pitman

  1. [20]
    The Adjudicator found that the correct respondent was Sign Sculpt Pty Ltd, not Ms Pitman, who was simply an employee.[4] 
  2. [21]
    Mr Lwin’s claim was a consumer dispute. He brought a claim as a consumer against Ms Pitman as a trader, but clearly as an employee she was not the trader.
  3. [22]
    It is not entirely clear on what basis Ms Pitman therefore remained in the action as a respondent nor the basis upon which she was found liable to pay Mr Lwin’s claim.
  4. [23]
    The Adjudicator said:

Now, it’s important to note that Ms Pitman is not the owner of the business, but by holding herself out in this manner the applicant genuinely believed that she was.[5]

  1. [24]
    The jurisdictional basis for the Tribunal to order one or other or both of the respondents to pay Mr Lwin’s claim was limited to that provided by s 12 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), a claim arising out of a contract between a consumer and a trader. The trader was determined by the Adjudicator to be Sign Sculpt Pty Ltd, not Ms Pitman.
  2. [25]
    The Tribunal has no jurisdiction to grant relief based simply on a misrepresentation. There is the potential liability possible under s 18 of Schedule 2 of the Competition and Consumer Act 2010 (Cth) (Australian Consumer Law) for misrepresentations made in the course of trade or commerce. But the Tribunal has no jurisdiction for claims for compensation or damages arising out of such behaviour.[6]
  3. [26]
    Once the trader had been identified as Sign Sculpt Pty Ltd, Ms Pitman should have been removed from the action.
  4. [27]
    There has been an error made by the Adjudicator in giving judgment against Ms Pitman.
  5. [28]
    Leave to appeal is granted on this ground of complaint and the appeal is allowed.

Ms Pitman was not accorded natural justice by denying her a right to attend the hearing in person and requiring her to attend by telephone

  1. [29]
    A failure to accord natural justice is an error of law, but there was no failure to accord Ms Pitman natural justice by requiring her to attend the hearing by telephone.
  2. [30]
    The hearing was set down for 5 June 2020. Both parties were given notice to attend by telephone, and they did.
  3. [31]
    At the relevant time, the President of the Tribunal had made certain practice directions limiting personal attendance of parties and witnesses at hearings. That was necessitated by the Covid pandemic crisis. The President is entitled to make practice directions about the practices and procedures of the Tribunal.[7]
  4. [32]
    At the hearing of the application for leave to appeal or appeal, Ms Pitman said she had forwarded video evidence to the Tribunal via email. Clearly she had taken or could have taken the opportunity to file evidence she intended to rely on before attending the telephone hearing before the Adjudicator.
  5. [33]
    There was no failure to accord Ms Pitman natural justice on the basis complained about.

There was no evidence of defective signage work

  1. [34]
    Making a decision without evidence is also an error of law.
  2. [35]
    Mr Lwin did in fact however present evidence about the defective work claimed to have been done by Sign Sculpt Pty Ltd. That evidence was from another company who also performed vinyl wrapping called Gangsta Wraps.
  3. [36]
    The Adjudicator relied on that evidence in finding for Mr Lwin. In her reasons for decision the Adjudicator set out the statement made by the other company as follows:

After checking out the job done by Vehicle Wraps Australia we found multiple problems: vinyl cut short and patched, peeling vinyl all over the car, hand-cut decals that were not straight, hand-cuts made on bonnet, cuts through clear coat.[8]

  1. [37]
    The Adjudicator had evidence of defective work before her. She was entitled to give that evidence the weight she deemed appropriate. But the weight of the evidence is not what is complained about. The claim was there was no evidence. There is no error disclosed here.

Disposition

  1. [38]
    Ms Pitman must succeed on her appeal and be released from the action MCDO1106-19. She was not the correct respondent to answer Mr Lwin’s claim.
  2. [39]
    The appropriate order is to grant leave to appeal, to allow the appeal and set aside the decision made on 5 June 2020.
  3. [40]
    The dispute between Mr Lwin as against Sign Sculpt Pty Ltd only should be returned to the Tribunal for fresh determination by a differently constituted Tribunal with the hearing of such fresh evidence as deemed appropriate by the parties. Of course Sign Sculpt will have to be served by Mr Lwin with an appropriately amended consumer dispute when the matter is returned to the Tribunal.

Footnotes

[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i).

[2]Pickering v McArthur [2005] QCA 294.

[3]ASIC search filed in the appeal proceedings by direction of the Appeal Tribunal consequent on the refusal of an application to stay the decision below.

[4]Transcript 1-27 Line 20.

[5]Transcript 1-29 Lines 4-5.

[6]Fair Trading Act 1989 (Qld) s 50.

[7]QCAT Act, s 226.

[8]Transcript 1-29 Lines 14-17.

Close

Editorial Notes

  • Published Case Name:

    Pitman & Anor v Lwin

  • Shortened Case Name:

    Pitman v Lwin

  • MNC:

    [2021] QCATA 48

  • Court:

    QCATA

  • Judge(s):

    Member Howe

  • Date:

    23 Mar 2021

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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