O'Leary v Girven[2022] QCATA 181

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This is an application for leave to appeal. If granted, the appeal will be heard at the same time. The matter will be heard on the papers and determined on the material which the parties have chosen to put before the Tribunal.
2. [2]
   In order to fully appreciate the dispute between the parties it is useful to have some reference to the record of the decision which is sought to be challenged, the decision of the Adjudicator made on 26 November 2021 at Sandgate. The hearing commenced at 1:43pm and concluded at 2:29pm. The Adjudicator gave an ex-tempore decision which is recorded in about 2 pages of the transcript wherein the reasons for decision and the orders of the Tribunal are set out.
3. [3]
   Ms Girven attended in person and Mr O'Leary by telephone. The parties stated their cases. Reduced to its essentials, the dispute revolved around the contention by Ms Girven that she had sold the horse, a 4-year-old, to Mr O'Leary who in turn maintained that there was no sale and the horse was transported from Queensland to Mr O'Leary in South Australia for a trial, to be test ridden.
4. [4]
   Mr O'Leary stated that:^[1]

… it was never a sale. It was intended to be a sale, and that was going to be the basis of the sale if the horse stood.

5. [5]
   The case for the applicant was that there had been a sale for $30,000, of which $10,000 had been paid and where the balance of $20,000 was due and payable.
6. [6]
   The Adjudicator, in the reasons for decision, observed that the original text messages between the parties referred to the vendor agreeing to sell the horse to the purchaser, who agreed to buy it for $30,000, upon conditions set out.
7. [7]
   The Adjudicator made further findings of fact, being that a deposit of $10,000 was paid on 23 October 2020 and that the horse could then be transported to South Australia, which occurred. The balance of $20,000 was to be paid on settlement of a contract for sale of an Equestrian Centre. Implicitly, this would provide funds to Mr O'Leary, enabling the payment of the remaining $20,000 as soon as possible but certainly within 2021.
8. [8]
   It was also found that the agreement included a provision that if Mr O'Leary sold the horse after fully paying for it, there would be a sharing of profits with Ms Girven, on a stated basis.
9. [9]
   Mr O'Leary did not arrange for a veterinary inspection of the horse prior to it being transported. Upon it arriving in South Australia he was not satisfied with its condition.
10. [10]
    The Adjudicator noted the requirements for a contract, an offer, acceptance, consideration and certainty. The use of the expressions “sell” and “buy” in the original text messages indicating an intention that there be a legally binding agreement.
11. [11]
    The overall condition, health and performance of the horse were matters of concern to Mr O'Leary who, in April 2021, offered to pay the reduced sum of $24,000 for the horse.
12. [12]
    The Adjudicator was careful not to conflate this with what had occurred up to the point of the horse being delivered. The decision makes clear that what was found was a sale in October 2020. What occurred subsequently was not relevant to that and did not change what had occurred, which was found to be a valid and binding contract of sale for $30,000.
13. [13]
    Accordingly, $20,000 was found to be outstanding on the purchase price and the Tribunal ordered that it be paid to the applicant within 28 days of 26 November 2021.
14. [14]
    Mr O'Leary seeks leave to appeal from that decision.
15. [15]
    The grounds of appeal are these:

16. [16]
    The orders sought are:

17. [17]
    The following also appears in the application:

18. [18]
    The transcript does not provide any support for the ground that Mr O'Leary was not able to argue in support of a jurisdictional objection. It discloses that in fact he chose to argue the merits of his case.
19. [19]
    There is no utility in the ground which alleges that the applicant said Mr O'Leary was in Queensland. He participated in the hearing by telephone. The transcript shows that he did so with some vigour and rationality, presenting his case. It is of no consequence where someone else said his address was. He was able to speak for himself and did so, challenging those things he chose to take issue with.
20. [20]
    The claim that the Adjudicator “ambushed” Mr O'Leary is not supported by his conduct as recorded. Additionally, he had ticked the “I am ready to proceed” part of the initiating document.
21. [21]
    The complaint that Mr O'Leary had not submitted his defence is not significant. He was able to, and did, at the hearing.
22. [22]
    The same may be said for the complaint about emailing the material. The transcript records that Mr O'Leary asked the Adjudicator if the “pleadings from us”^[2] had been received and, upon being informed that they had, Mr O'Leary proceeded. The “pleadings” were described as “regarding the interstate matter”.^[3]
23. [23]
    There is no proper basis shown of any prejudice to Mr O'Leary in respect of this matter.
24. [24]
    The claim that there was a denial of an opportunity to present his case by denial of an adjournment is not supported by the transcript, which shows that, to the contrary, Mr O'Leary vigorously proceeded with his case when provided the opportunity to do so.^[4]
25. [25]
    Mr O'Leary raised the matter of having received notice from the tribunal of the proceeding then in progress only 7 days ago.^[5] He also stated that he had suffered an eye injury four weeks prior and had lost the sight of his right eye.^[6] He said he was “struggling” and asked for an adjournment to provide the material which he was offered the opportunity to email immediately.^[7]
26. [26]
    The Adjudicator then refused Mr O'Leary’s application to dismiss the proceedings for lack of jurisdiction. Also dismissed was an application to transfer the matter to South Australia.^[8]
27. [27]
    The application for an adjournment was opposed by Ms Girven.^[9]
28. [28]
    The Adjudicator refused the application for an adjournment.^[10] Mr O'Leary pointed out that there had not so far been any adjournments.^[11] The Adjudicator’s reason for refusing the application was expressed as a belief that, with the evidence of Mr O'Leary and Ms Girven, there was enough information.^[12]
29. [29]
    Mr O'Leary asserted that he had evidence that the arrangement was other than a sale.^[13] He said he had not been given the opportunity to produce that evidence.^[14] He referred to his serious eye injury, and when asked if he was in a position to email the material, replied:^[15]

Of course. Of course.

30. [30]
    He then went on to refer to some material specifically, by saying:^[16]

Okay. Here’s one. On March the 13^th 2021.

31. [31]
    He asked for a couple of days and to not be “expected to dig all of this out today”.^[17] He said:^[18]

That would be nice…

32. [32]
    Mr O'Leary, on his own statement, had 7 days’ notice of the hearing.^[19] He said he was 75 years of age and was struggling. However, he was able to quickly find the material dated 13 March 2021.^[20] He did not send it, however.
33. [33]
    It is fundamental that a party must be given a fair hearing.
34. [34]
    A fair hearing should not, of course, be confused with an outcome which an individual litigant may desire, such as the success of their claim.
35. [35]
    The content of the requirement of the aspect of natural justice which is presently relevant, namely procedural fairness, has been often considered by the courts.
36. [36]
    As Mason J (as his Honour then was) observed in Kioa v West,^[21] the requirements of procedural fairness must be adjusted to the statutory framework governing the Tribunal in question:

What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting: Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 552-3; National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 at 311, 319-321.

In this respect the expression “procedural fairness” more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations …

37. [37]
    The evidence does not establish that the 7 days opportunity to prepare was not able to be sufficiently availed of to be a real opportunity. Mr O'Leary was able to quickly locate material, which he did not provide when given the opportunity, and did say that an adjournment would be “nice”^[22] and “perfect”.^[23]
38. [38]
    While it is common that people would like to achieve what are described as “nice” or “perfect” opportunities, that is not what must be provided to them. There must be a fair hearing. What was being sought, and what is now being sought, is more than what is a proper procedure. A fair hearing is not a perfect one. The opportunity provided by the Adjudicator can not be properly characterised as insufficient to provide a proper opportunity to a litigant in the Tribunal. This ground of appeal is not successful.
39. [39]
    The transcript does not support the assertion that the Adjudicator acted as if they were the lawyer for the applicant. There is no indication on the transcript of any lack of even-handed treatment of the parties.
40. [40]
    As claimed, there was an ex-tempore decision. It contained reasons for the decision given and is unremarkable.
41. [41]
    The ground of appeal that the Adjudicator gave the impression that she was a “Horse Person” is unhelpful. There is no indication of any unfairness to either party.
42. [42]
    As to the Adjudicator “interrupting”, the transcript shows only a proper control of the proceedings, which is essential to a fair hearing. This ground is not successful.
43. [43]
    The submissions dated 6 August 2022 from Mr O'Leary extend to 20 pages. In order to properly consider the appeal, it is not necessary, nor is it helpful, to deal with the “Request for Directions” or the submissions for a stay order unless the leave to appeal question is resolved in favour of the applicant. This is due to the expressed grounds of appeal and the orders sought as set out in the originating document.
44. [44]
    The submissions refer to “Leave to Appeal and New Evidence”. There is a description of the material. It includes expert reports, correspondence, photos and “written content of the agreement”.^[24] This is clearly not fresh evidence in the legal sense but more or other evidence, which was foreshadowed at the hearing.
45. [45]
    As has been discussed, there was an opportunity for the applicant to produce this at the hearing and what amounts to a decision by him not to do so when offered the opportunity. Instead, what was sought was a further, improved opportunity. The decision of the Adjudicator, as has been discussed, did not deny the litigant a proper opportunity to present his case, merely the opportunity to do so, in the applicant’s opinion, in a “nice” or “perfect” way. Mr O'Leary may now regret his level of attention to preparation, but that is not a matter relevant for present purposes. The same may be said of his passing up the opportunity to provide the material of 13 March 2021. It is common, and trite, that opportunities passed up may have been best taken, but that is part of the responsibility of a litigant who must choose what he presents at a hearing.
46. [46]
    The complaint about the “QCAT Notice of Hearing supplied”^[25] not indicating that there would be a hearing on the merits refers to what Mr O'Leary submits he was told by “the Registry”. There is no evidence, only submissions, that supports this. The transcript shows, contrary to these submissions, that Mr O'Leary fully engaged from the outset of the hearing with the merits of the case and addressed, or was offered proper opportunity to address, all issues he may have wished to. The Tribunal is not a court of strict pleading but is designed by statute to focus on and address the real issues of merit, rather than become mired in technicalities.^[26]
47. [47]
    It is unpersuasive that broad submissions are made that the respondent acted fraudulently or dishonestly. The applicant chose at the hearing to focus on the terms of the agreement. This is an example of a choice having been made at the hearing. It is not possible in this application to seek to effectively now present a different case on the basis only of a different choice now being made.
48. [48]
    Legal proceedings in South Australia are referred to, and it is submitted by the applicant that Ms Girven could have used them to resolve her dispute. It is, however, the case that she was not required to do so and was entitled to proceed in QCAT.
49. [49]
    The submission that Mr O'Leary “inadvertently” put a tick in the box of the QCAT form, thereby stating that he was ready to proceed, is sought to be justified by the submission that “appropriate and required” forms, which are not particularised, were not provided to him. Naturally, the litigant has responsibility for his case and much is made available by QCAT online. This complaint amounts to an excuse for a lack of preparation which is the responsibility of the litigant.
50. [50]
    The complaint that the Adjudicator demanded something physically impossible refers to the opportunity provided to email material. The opportunity, the transcript shows, was simply not availed of, specifically regarding the material of 13 March 2021. This submission is of no assistance to the application for leave to appeal.
51. [51]
    Submissions about Mr O'Leary’s sight and hearing difficulties are unpersuasive. He found material quickly once he looked for it and the transcript does not show any need for a repetition of words or that speech was not correctly understood. His responses were appropriate.
52. [52]
    The submissions in relation to bias in the decision maker are broadly made and include that the Adjudicator was aggressive and obstructive, preventing the applicant from answering any of the questions asked. The transcript, to the contrary, shows a regular flow of questions and answers with no blocking of replies to questions. It is submitted that the Adjudicator was hostile, derogatory and attacking. The transcript does not support this.
53. [53]
    There is no support in the transcript for the submissions made in regard to bias.
54. [54]
    The parallel submission in relation to the Adjudicator being criticised for not dealing only with the question of jurisdiction and proceeding to deal with the merits fails as an indicator of bias or a demonstration of error. The matters before the Tribunal were all dealt with.
55. [55]
    The submissions that the horse did not meet a required standard of quality are unpersuasive as the transcript shows that the qualities of the horse were considered by the parties. The opportunity for Mr O'Leary to pursue that with evidence existed and was not availed of where there was at least a 7-day period before the hearing for preparation, and the Adjudicator provided an opportunity to submit material on the day.
56. [56]
    It is submitted that the decision demonstrates bias by its findings. That is not persuasive. The Adjudicator made required findings of fact that were open to be made on the basis of the material which the parties chose to present.
57. [57]
    There are submissions made by the applicant to the effect that the Adjudicator ought to have decided the merits of the case differently. This is a matter quite distinct from whether leave to appeal should be granted on the grounds claimed, or any of them.
58. [58]
    The submissions that the contract was formed and to be performed in South Australia “so the jurisdiction is questionable”^[27] is unhelpful to the application for leave to appeal. It is not shown that there was a lack of jurisdiction.
59. [59]
    The submissions make claims for compensatory damages. This is not relevant to consideration of an application for leave to appeal.
60. [60]
    Equally, submissions regarding delays and frustration caused by Ms Girven are not relevant to the grounds of appeal.
61. [61]
    The final paragraph of the submissions^[28] is in the following terms:

62. [62]
    Although the submissions have extensively raised what have amounted to arguments that matters should have been decided differently, and that other evidence could have been produced, this paragraph is the essence of the application.
63. [63]
    As has been considered, the evidence does not establish that the fair and appropriate opportunity was not provided. It has not been shown that the Adjudicator was biased or that a reasonable observer might think so.
64. [64]
    Accordingly, the application for leave to appeal cannot be granted and must be refused.
65. [65]
    The solicitor for Ms Girven has stated a desire on the part of his client to seek legal costs. While Ms Girven has been fully successful in this application, it does not appear from the material that she has been put to an unreasonable or disproportionate burden in responding to the application. It is accordingly not a case where costs should be ordered to compensate Ms Girven.

ORDERS

1. Leave to appeal is refused.
2. The Adjudicator’s decision is confirmed.
3. The application for costs is refused.