Gueli Investments Pty Ltd v James
[2021] QCATA 81
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- Unreported Judgment
- Gueli Investments Pty Ltd v James[2021] QCATA 81
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Gueli Investments Pty Ltd v James[2021] QCATA 81
Gueli Investments Pty Ltd v James[2021] QCATA 81
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Gueli Investments Pty Ltd v James [2021] QCATA 81 |
PARTIES: | gueli investments pty ltd (applicant) v brenT michael james (respondent) |
APPLICATION NO: | APL285-20 |
MATTER TYPE: | Other minor civil dispute matters |
DELIVERED ON: | 23 June 2021 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Dr J R Forbes |
ORDERS: | The application for leave to appeal is dismissed. |
CATCHWORDS: | APPEAL – APPLICATION FOR LEAVE TO APPEAL – minor civil claim – minor debt – where series of oral agreements for sundry repairs to motor vessel – where majority of invoices accepted and paid – where further invoices disputed – where amount of claim reduced to conform with QCAT quantum jurisdiction – where alleged debtor seeks transfer of matter to Magistrates Court – where Tribunal dismisses transfer application – where Tribunal enters judgment for amount claimed – where judgment debtor seeks leave to appeal against refusal of transfer – whether appeal against discretionary decision on procedural issue discloses an appellable error – where rules relating to such appeals considered – where leave to appeal refused Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 52 Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Brambles Holdings Ltd v Trade Practices Commission (1979) 40 FLR 364 Broughton v Searle [2014] QCAT 212 Dougherty v Chandler (1946) 46 SR (NSW) 370 Feequeela Pty Ltd (t/a Hydraulic Solutions v C H Buckby Pty Ltd [2014] QCAT 225 House v The King (1936) 55 CLR 499 JM v QFG [2000] 1 Qd R 373 Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611 Pioneer Park Pty Ltd (in liq) & Ors v Australia and New Zealand Banking Group Limited [2007] NSWCA 344 Secretary of State for Education and Science v Tamside Metropolitan Borough Council [1977] AC 1014 W (an infant) In re [1971] AC 682 Ward v Williams (1955) 92 CLR 496 Will of Gilbert, Re the (1946) 46 SR (NSW) 318 |
APPEARANCES & REPRESENTATION: | 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]
- [2]In about April 2018 – or perhaps as early as January of that year[3] - Gueli engaged the present respondent (`James’) to do the requisite work. No comprehensive agreement in writing was ever prepared.[4] Indeed the parties’ relationship was `very loose’,[5] and `relatively open.’[6] Evidently they made a series of ad hoc verbal agreements, as necessary repairs were identified from time to time. In winnowing and interpreting the available evidence – such as it is – the learned Adjudicator had a distinctly unenviable task.[7]
- [3]For items other than those in contention Gueli paid James more than $260,000,[8] which is not in dispute.[9] These proceedings focus upon seven outstanding invoices totalling $33,987.73.[10] Gueli elected to reduce that amount to $24,445 so as to keep its claim within the jurisdiction of the Tribunal.[11] Five unpaid invoices are involved.[12]
- [4]The hearing took place on 19 August 2020, when Gueli was ordered to pay James the amount claimed, namely $24,445 plus costs.
- [5]Gueli now applies for leave to appeal, seeking to have that decision set aside.
- [6]The case now takes a somewhat unusual course. Instead of alleging any intrinsic error in the decision, Gueli contends that the Tribunal erred in refusing its application to transfer these proceedings to the Magistrates Court. In other words, Gueli does not directly appeal against the finding of liability, but seeks to annul that finding by challenging the procedural decision to refuse a transfer. Gueli, apparently unable to fault the trial process per se, asserts that it should never have taken place.
- [7]Gueli initiated the transfer application in the midst of the hearing[13], submitting that these proceedings should be heard jointly with a broadly, indeed vaguely defined counterclaim by Gueli in Magistrates Court for $150,000 – an amount obviously beyond the Tribunal’s jurisdiction. The Magistrates Court claim was filed one day before the QCAT hearing on 19 August 2020.
- [8]In written submissions filed on 2 November 2020 Gueli asserts:
As was submitted on 19 August 2020 it is appropriate for the entire dispute to be heard and determined in the Magistrates Court given the quantum of the Magistrates Court claim and that the matters are inextricably linked and there are overlapping factual and legal issues.
- [9]The application for transfer is based on section 52 of the QCAT Act, which materially provides:
If the tribunal considers the subject matter of a proceeding or a part of a proceeding would be more appropriately dealt with by another tribunal, a court or another entity, the tribunal may, by order, transfer the matter to which the proceeding or part relates to the other tribunal, the court or the other entity.
- [10]Gueli relies upon a decision of the Tribunal in another transfer case: Feequeela Pty Ltd (t/a Hydraulic Solutions v C H Buckby Pty Ltd[14] (`Feequeela’). The facts of that case do warrant the adverb `inextricable:
Hydraulic Solutions claim is for an amount unpaid in respect of repairs to a hydraulic hammer in the sum of $12,085.34. However, C H Buckby claims that the repairs carried out by Hydraulic Solutions caused further problems with the hammer.[15]
- [11]From the barely particularised information supplied, it is not so clear that the respective claims in this case are `inextricable’. James complained of obfuscation, delay and Gueli’s eleventh-hour resort to the Magistrates Court. The Tribunal noted that an earlier application for transfer had been refused.[16] James referred to Broughton v Searle[17], where the Tribunal declined to defer to a vaguely described District Court counterclaim.
- [12]Here on one hand there was a liquidated claim particularised in the relevant invoices, and on the other hand a foreshadowed, unliquidated counterclaim, barely particularised. The Adjudicator decided that the unity of the former claim was suitable for, and warranted separate and immediate resolution.
- [13]Refusing the application for transfer the Adjudicator observed:
This isn’t overly complicated … there’s a debt alleged to be owing. There is a reason that the respondent doesn’t want to pay the debt. We can analyse those here today. I don’t think we need to complicate things on the simple issue of the alleged debt. To the extent that there are other issues that your client wants to pursue, loss of opportunity, all of the other things … you won’t be precluded from bringing those in your claim to the Magistrates Court.
- [14]There is, however, a more fundamental obstacle to the proposed appeal. A cursory reading of section 52 shows that it is a permissive or enabling provision, not a mandatory one – `If the Tribunal considers ... [it] may’,[18] not `shall’ or `must’. A discretion is clearly conferred:
[I]t is the real intention of the legislature that must be ascertained, and ... you begin with the prima facie presumption that permissive or facultative expressions operate according to their ordinary natural meaning.[19]
- [15]An appeal against a lawful exercise of discretion faces special difficulties.[20] Those difficulties are acute where, as here, the decision in question relates to a mere matter of procedure, as distinct from substantive rights. `[C]ourts exercise particular caution in reviewing decisions pertaining to practice and procedure’.[21] A distinguished Chief Justice of NSW, Sir Frederick Jordan, applied this policy in Re the Will of Gilbert[22], stressing the need to keep `a tight rein on interference with the orders of Judges of first instance’ on points of procedure:
The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory matters from a Judge in Chambers to a Court of Appeal’.[23]
- [16]The Adjudicator was entitled take some account of the tortuous course this case had taken in the 18 months or more between initial application and judgment – a decision in default of appearance, an application to set the default judgment aside, two applications for transfer, and several extensions of time to comply with various appeal Tribunal’s directions, and an application (unsuccessful) for a stay of execution.
- [17]The `leave to appeal’ hurdle is designed to preclude attempts to conduct retrials on the merits, or to introduce evidence or arguments that might have been led in the first place, but in fact were not. Parliament’s policy is that there must be an end to minor litigation. The fact that a party loses a case and disagrees with the result does not signal an error of law. It is not a ground of appeal that the primary judge preferred one version of the facts to another, or gave less weight to one party’s case than the latter thinks it should have received.
This his function ... Even if the evidence is strongly one way the appeal court may not intervene simply because it reaches a different conclusion, and this, even if it regards the conclusion of the trial judge against the weight of evidence.[24]
- [18]Where reasonable minds may differ, a decision is not legally erroneous merely because one conclusion is preferred to another possible view.[25] As high authority holds, this applies a fortiori to discretionary decisions on procedure.
- [19]I can see no reasonable prospect of successfully challenging the present decision. It was well within the Tribunal’s lawful discretion. No other ground of appeal is pleaded. Accordingly leave to appeal must be refused.
ORDER
- [20]The application for leave to appeal is dismissed.
Footnotes
[1]Transcript of hearing 19 August 2020 page 31 lines 33-37.
[2]T page 85 line 6.
[3]T page 21 line 36, page 23 lines 3-4.
[4]T page 30 line 43, page 86 line 26.
[5]T page 23 line 25, page 24 line 25, page 35 line 10, page 90 line 28.
[6]T page 30 line 40.
[7]For complaints about the paucity of evidence see T page 22 lines 37-38, page 34 line 36, page 42 lines 33-35, page 47 lines 2-6, page 87 line 14, page 90 lines 41-42.
[8]T page 4 line 5.
[9]T page 39 line 41.
[10]T page 39 line 36.
[11]T page 72 lines 3-5.
[12]T page 72 line 5.
[13]T page 4 lines 30ff.
[14][2014] QCAT 225.
[15][2014] QCAT 225 at [4].
[16]T page 5 line 39; Application 5 June 2020.
[17][2014] QCAT 212.
[18]Emphasis added.
[19]Ward v Williams (1955) 92 CLR 496 at 505.
[20]House v The King (1936) 55 CLR 499 at 504-505.
[21]Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR170 at 176-177.
[22](1946) 46 SR (NSW) 318 at 323.
[23]Ibid. See also Dougherty v Chandler (1946) 46 SR (NSW) 370 at 374; Brambles Holdings Ltd v Trade Practices Commission (1979) 40 FLR 364 at 365; Pioneer Park Pty Ltd (in liq) & Ors v Australia and New Zealand Banking Group Limited [2007] NSWCA 344 at [14]: `The first hurdle faced by the Bank was that it sought to challenge the failure to exercise a discretionary power at an interlocutory stage ... there would be a principle of restraint in reviewing [such] a decision’.
[24]Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151.
[25]Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611 at [131]; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1025; In re W (An infant [1971] AC 682 at 700.