Singh v Red Plum Automotive[2021] QCATA 93

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   Arpit Singh received a brokerage service for which he did not pay.
2. [2]
   Red Plum Automotive Pty Ltd is a car broker who sourced a BMW for Mr Singh to buy. It did what it said it would do. Mr Singh then decided he did not want to buy the car or pay Red’s fees. An Adjudicator ordered Mr Singh to pay Red’s $880.00 brokerage plus $120.50 filing fee.
3. [3]
   Mr Singh has applied for leave to appeal that decision. As the President of the Tribunal recently observed, there is no automatic right of appeal against minor civil dispute decisions.^[1] Leave is only granted where necessary to correct a substantial injustice and there is a reasonably arguable case of error in the primary decision.^[2] Otherwise, “the civil justice system for small claims would collapse under its own weight without quick, efficient and pragmatic approaches to the decision-making process which are consistent with achieving justice.”^[3]
4. [4]
   Contrary to this approach, Mr Singh’s appeal essentially sought to re-argue the case. He said the learned Adjudicator denied him procedural fairness, did not consider the unfair contract provisions or provide an itemised bill under the Australian Consumer Law and made findings of fact that he disagreed with.

Did the Tribunal afford Mr Singh procedural fairness?

5. [5]
   Mr Singh said he was not given notice to respond to the evidence of Red’s witness and the learned Adjudicator ignored a previous Tribunal decision about Red, did not give him the same amount of time to explain his side of the story, allowed her personal opinion to interfere with the decision, did not reprimand interruptions and her cross-examination “failed to establish fairness of the contract”.
6. [6]
   The Tribunal must observe procedural fairness.^[4] However, this 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.^[5] The requirements of procedural fairness must be adjusted to the statutory framework governing the Tribunal.^[6]
7. [7]
   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^[7] is at its most acute in the busy and demanding minor civil disputes jurisdiction, where thousands of applications are processed and determined each year.^[8] Within this context, the Tribunal is not bound by the rules of evidence,^[9] and may inform itself in any way it considers appropriate.^[10]
8. [8]
   This means that parties may not be aware of all material relied upon by their opponent before the hearing. That is not the case here: Mr Singh received Red’s witness statement some ten months before the hearing.^[11] He had ample time to prepare and respond, as shown by his failure to raise it as an issue at the hearing or seek an adjournment. I have also read the transcript of the original hearing. The learned Adjudicator gave Mr Singh an opportunity to respond during the hearing.

9. [9]
   Mr Singh did not refer to any previous Tribunal decision during the original hearing,^[12] denying Red the right to give evidence in response. Mr Singh is therefore estopped from raising it now:

… if a party fails to raise an issue although he or she might reasonably have done so, there may well be a true estoppel which precludes that party from raising it in later proceedings.^[13]

10. [10]
    Moreover, the Tribunal determines each case on its own facts. Stare decisis does not apply to minor civil dispute decisions of equal standing. 
11. [11]
    The remaining procedural fairness grounds relate to the learned Adjudicator’s conduct of the hearing. The Tribunal is not bound by the rules of evidence^[14] and, subject to procedural fairness,^[15] may ask questions of parties and their witnesses as it sees fit. 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.’^[16]
12. [12]
    None of the procedural fairness grounds align with the Tribunal’s statutory purview to conduct proceedings in a way that is fair, just, economical, informal and quick^[17] or established principle.^[18] Mr Singh’s appeal sought to scrutinise the learned Adjudicator’s conduct of the hearing to a level inconsistent with the Tribunal’s statutory mandate.  Time is of the essence in minor civil disputes. It is not a jurisdiction requiring equal time allocations or specific questioning as a matter of course,^[19] but the learned Adjudicator may instead inform herself in any way she considers appropriate.^[20] Within the context of the Tribunal’s minor civil disputes jurisdiction, the learned Adjudicator gave Mr Singh a sufficient opportunity to give and receive evidence.
13. [13]
    In exercising her inquisitorial powers, parties must expect some degree of exploration and discussion of issues by the learned Adjudicator during the usual course of a hearing.^[21] The learned Adjudicator is not required to ask the same number or type of questions of each party. It is not unusual for parties to be interrupted during a hearing. Both parties interrupted each other.^[22] The learned Adjudicator was still able to focus the hearing by directing the parties to what was relevant. The learned Adjudicator’s questioning was a proper exercise of her inquisitorial powers in the minor civil disputes jurisdiction.
14. [14]
    The learned Adjudicator gave Mr Singh an opportunity to present material to rebut Red’s evidence. He had enough time to consider the evidence and respond.  Nothing in the transcript suggests that Mr Singh was denied a fair hearing by interruptions or the learned Adjudicator’s questioning of the parties.
15. [15]
    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 learned Adjudicator gave Mr Singh procedural fairness.
16. [16]
    This ground of appeal is dismissed.

Did the learned Adjudicator err by not applying the Australian Consumer Law?

17. [17]
    Mr Singh did not raise this during the original hearing,^[23] and is therefore estopped from raising it now. ^[24]  Moreover, the Australian Consumer Law does not apply in the way submitted by Mr Singh.
18. [18]
    This ground of appeal is dismissed.

Were the findings open on the evidence?

19. [19]
    In challenging the learned Adjudicator’s findings of fact, Mr Singh sought to rely upon fresh evidence: phone records of a call he made to Red. Mr Singh said that because this call lasted only 604 seconds, it proves that Red could not have told him its brokerage fee in this call and that the Tribunal should “pursue details of the phone call, date and duration on which [Red] told me about [the] brokerage fee”. Apart from this, Mr Singh sought to reargue his case.
20. [20]
    The Appeal Tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an application for leave to adduce fresh evidence must satisfy three tests:^[25]

    1. (a)
       Could the parties have obtained the evidence with reasonable diligence for use at the trial?
    2. (b)
       If allowed, would the evidence probably have an important impact on the result of the case?
    3. (c)
       Is the evidence credible?
21. [21]
    It is not the Tribunal’s role to pursue evidence to support Mr Singh’s case. Mr Singh had an obligation to act in his own best interests, including providing all evidence at the hearing to support his case:

The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’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’. Finality in litigation is highly desirable, because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties.^[26]

22. [22]
    Mr Singh did not provide any explanation for why he did not provide his fresh evidence at the hearing.  The onus was always upon Mr Singh to present his case and bring all relevant material and witnesses to the hearing. He did not and his failure to provide a reasonable explanation is itself sufficient to not allow the fresh evidence.
23. [23]
    However, even if the fresh evidence were admitted into evidence, it has little evidential weight and is unlikely to affect the outcome of the case. The length of the phone call was sufficient to discuss brokerage. At most, the fresh evidence allows the drawing of a possible alternative inference.  But it does not prove this. Attempting to explain away the learned Adjudicator’s finding with a possible alternative inference does not demonstrate error.
24. [24]
    Mr Singh said that the learned Adjudicator erred by accepting Red’s story over his and ignored facts that cast doubt on Red’s witness. It is not an error to prefer one version of facts to another.^[27]  In making her findings, it is clear that the learned Adjudicator accepted Red’s evidence.^[28] That is unremarkable and entirely within her purview. Having considered the filed material and heard the evidence of both parties, the learned Adjudicator was in the best position to assess credit and make findings accordingly.
25. [25]
    The learned Adjudicator referred to relevant evidence to support her findings, which she was entitled to weigh accordingly. An appellable error is not demonstrated by identifying other possibilities not mentioned or not apparently considered. The learned Adjudicator may decide the case in a way that does not require the determination of a particular submission and can be simply put aside.^[29]
26. [26]
    The learned Adjudicator may have unexpressed findings of fact.^[30] If the learned Adjudicator did not specifically refer to an item of evidence, it does not mean it was overlooked. Rather, it is reasonable to infer that the learned Adjudicator did not consider it relevant or sufficient to outweigh the evidence upon which she made her findings.
27. [27]
    The appeal process is not an opportunity for a party to again present their case.^[31] It is the means to correct an error by the Tribunal that decided the proceeding.^[32] A party who does not provide all their relevant evidence at the hearing cannot expect a different outcome by simply re-arguing their case on appeal.
28. [28]
    Nothing in the material or the transcript persuades the Appeal Tribunal that the learned Adjudicator’s findings were not open to her. The evidence was capable of supporting the learned Adjudicator’s conclusions. Her findings were open on the evidence. 
29. [29]
    This ground of appeal is dismissed.

Should the Appeal Tribunal grant leave to appeal?

30. [30]
    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’.^[33] 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.^[34]
31. [31]
    Leave will not be granted where a party simply desires to re-argue the case on existing or additional evidence.^[35] Having read the transcript and considered the evidence, I find nothing to indicate that the learned Adjudicator acted on a wrong principle, or made mistakes of fact affecting her decision, or was influenced by irrelevant matters. The learned Adjudicator’s decision was appropriate, and I can find no reason to come to a different view.
32. [32]
    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.
33. [33]
    Leave to appeal is refused.