South Coast Automotive Group v Martin
[2022] QCATA 69
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- Unreported Judgment
- South Coast Automotive Group v Martin[2022] QCATA 69
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South Coast Automotive Group v Martin[2022] QCATA 69
South Coast Automotive Group v Martin[2022] QCATA 69
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | South Coast Automotive Group v Martin [2022] QCATA 069 |
PARTIES: | South Coast Automotive Group (applicant/appellant) v Nigel martin (respondent) |
APPLICATION NO/S: | APL094-21 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 26 May 2022 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Richard Oliver |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where the respondent purported to enter into an employment contract with the applicant – where offer of employment withdrawn – where respondent brought a claim for damages for breach of contract – whether concluded agreement – whether the claim fell within the definition of minor civil dispute – whether relief available under the Australian Consumer Law – whether jurisdiction conferred under the Fair Trading Act Qld – whether applicant afforded procedural fairness. Queensland Civil and Administrative Tribunal Act section 142(3)(a)(i) and Schedule 3 Fair Trading Act (Qld) 1989 s 50 Australian Consumer Law s 31 C & k Home Investment Pty Ltd ATF v Sye & Anor [2022] QCATA 061 Sanctuary Cove Golf and Country Club Pty Ltd (ACN120 308 410 v Machon [2019] QCATA 1 |
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]Mr Martin brought a claim in the minor civil disputes jurisdiction of the Tribunal against South Coast Automotive for damages for breach of contract. Although the Tribunal below was not satisfied a concluded agreement was reached between the parties to establish breach, it found for Mr Martin on the basis that South Coast Automotive engaged in conduct that was likely to mislead under section 31 of the Australian Consumer Law (“ACL”), when making the written offer of employment to Mr Martin for the position of general sales manager. The Tribunal awarded damages against South Coast Automotive in the sum of $12,676.20.
- [2]South Coast Automotive (“SCA”) has filed an application for leave to appeal or appeal from that decision. The issues raised in the appeal concern the Tribunal’s jurisdiction to apply section 31 of the ACL and whether SCA was afforded procedural fairness in the hearing below. As this appeal involves questions of law, and for the reasons set out below, leave to appeal is granted[1] and the decision of the Tribunal below is set aside.
- [3]In summary, the Tribunal lacked jurisdiction to hear the proceeding, both under the ACL and the Queensland Civil and Administrative Tribunal Act. In view of this the question of procedural fairness is moot, however it is clear from the original application, and the record of the hearing that SCA was unprepared for the ACL point first raised during the hearing. SCA was, therefore, at a disadvantage.
Background
- [4]Mr Martin had been employed in the automobile industry for many years. At the time of the relevant events, he was employed by a motor dealership on the Gold Coast. He had been long term friends with Mr Pickering, the owner of SCA, which was also located in the Gold Coast/Tweed Heads area. He was also an acquaintance of Mr Adamson who was the dealer principal of SCA.
- [5]In December 2017, after some discussions with Mr Adamson, SCA offered Mr Martin a position with the dealership as general sales manager. Terms were generally agreed in late December 2017 and on 9 January 2018 Mr Adamson put a formal offer of employment, in writing, to Mr Martin, via email. The document is annexed to a letter dated 20 April 2018 from Mr Martin’s solicitors, McInnes Wilson. It is unsigned but contains all the essential terms of their agreement. It is titled “Letter of Employment”.
- [6]Mr Martin contends that he accepted the offer by email the following day on 10 January 2018. His email response certainly supports the contention, he wrote:
“Cheers, I’ll call tomorrow. I gave them my resignation just before the close of business today”.
- [7]Having regard to the causal relationship between Mr Martin and Mr Adamson, the short but concise statement in the email, together with the resignation, is consistent with an acceptance of the offer.
- [8]The commencement date for the new position was not completely settled. There was good reason for this because at a later meeting between Mr Martin and Mr Pickering in mid-January, Mr Pickering informed Mr Martin that he, as owner, intended terminating Mr Adamson’s position so he could return to manage the dealership himself. As a consequence, he asked Mr Martin to ‘cool his heals’ until he had finalised these arrangements. Mr Martin, trusting Mr Pickering, agreed to go along with the request, bearing in mind he was to remain in his current position until 21 January 2018.
- [9]After finishing up at his current employment, Mr Martin contacted Mr Pickering to arrange a start date, however there was no response to Mr Martin’s phone call. Later, there was a conversation with Mr Pickering in which he told Mr Martin that; circumstances had changed, he was retiring from the business, and to contact Mr Tom Niederer who was the new general manager of SCA. Although promising to follow up, presumably with Tom Niederer, there was no further contact from Mr Pickering.
- [10]In March 2018, still with no job, Mr Martin contacted Tom Niederer to only be told that there was no position available for him. After about 13 weeks Mr Martin managed to find alternate employment.
- [11]Mr Martin then brought a claim against SCA in the minor civil disputes jurisdiction of the Tribunal claiming $25,000 compensation of what he alleges is SCA’s breach of contract.
- [12]The proceeding went to a Tribunal hearing on 20 January 2021. After hearing from both parties and having regard to the documentary evidence, principally the email exchange, the learned adjudicator found for Mr Martin, assessed damages, and made an order that SCA pay to Mr Martin the sum of $12,676.20. She did so on the basis that s 31 of the ACL applied to the circumstances of the case. The section provides that:
“A person must not, in relation to employment that is to be or may be offered by the person to another person, engage in conduct that is liable to mislead the person seeking the employment as to the availability of the employment, the nature of the employment the terms and conditions of the employment, or any other matter relating to the employment”.
- [13]She accepted Mr Martin’s evidence as to the history of events leading to the written offer of employment, also the subsequent conversations with Mr Pickering. Neither Mr Adamson or Mr Pickering provided any evidence in writing or orally to the Tribunal to challenge Mr Martin’s account.
- [14]However, she was not satisfied that there was an enforceable contract between Mr Martin and SCA. She did so on the basis that even though it seems there was an acceptance, the written offer was qualified by the words at the end of the offer:
“If the letter of offer is agreed upon a further employment contract will be executed between the parties”.
- [15]The question that arises here is whether the Letter of Employment falls within the first category referred to in Masters v Cameron[2]. That is where the parties intend to be immediately bound to perform the contract but also propose to formalise the agreement in a written contract to be later executed between the parties. That certainly seems to be the case here. There is also an argument that SCA would be estopped from denying the contract having regard to its conduct in accepting Mr Martin’s actions set out in his acceptance email, that is resigning from his current employment. He clearly moved to his detriment. However, it is unnecessary for me to decide that given the jurisdictional issue as discussed below.
- [16]SCA then filed an application for leave to appeal or appeal. The grounds of appeal relate to the learned adjudicator’s reliance on the ACL, which was raised for the first time during the course of the hearing. The complaint is that the Tribunal relied on s 31 of the ACL when Mr Martin’s claim, in the substantive application, was for damages for breach of contract. What SCA is saying, perhaps in more legalistic terms, is that the Tribunal found for Mr Martin on a new cause of action not relied on by him in his initial application, and was taken by surprise when raised by the Tribunal. It is also contended, and it follows, that there was no opportunity for SCA to consider the allegations of whether it’s conduct was misleading in the circumstances for the section to apply. SCA also challenges the method of assessing damages.
Procedural Fairness
- [17]Despite the complaints about surprise in the grounds of appeal and submissions in support, there was no complaint or objection by Mr Thomson who appeared on behalf of SCA at the hearing. He seemed to, as it were, go along with the learned adjudicator when the ACL point was first raised[3]. There was discussion about the application of the ACL and then the hearing moved on to the facts of what occurred. To be fair, Mr Thomson had little actual knowledge of the background, only what was in the emails, and the material filed in the Tribunal.
- [18]Also, it is reasonable to assume Mr Thomson was not aware he could object or seek an adjournment if necessary. Such a course is usually a pre-requisite for relying on a ground of appeal, particularly a denial of procedural fairness, if the point was not taken at the initial hearing. Counter-balanced against this is the Tribunals obligations under ss 28 and 29 to assist the parties. Furthermore, none of the key witnesses for SCA were present at the hearing.
- [19]As it was the ACL point which resulted in the award of damages it seems to me that perhaps SCA should have been given an opportunity to consider its position. It could not have anticipated that the ACL issue would be raised from the applicant’s filed material. It is a ‘new cause of action’ first raised at the hearing. Having said that, one wonders at the utility of adjourning the application, particularly when the circumstances of what occurred were undisputed. No doubt the jurisdictional question of whether the ACL applied could have been ventilated. It has been often said that the Tribunal adjudicators have an onerous task to decide complex cases in a short amount of time and still ensure fairness to the parties. Fortunately, in this instance, it is not critical to deciding this appeal.
Jurisdiction
- [20]There are two jurisdiction issues here. The first jurisdictional point is that even though Mr Martin did not succeed on establishing that a valid and enforceable contract existed between himself and SCA, he could not have succeeded in any event. The claim for damages for breach of contract itself does not fall within the definition of a “minor civil dispute” in the QCAT Act. Under the definition of ‘minor civil dispute’[4] the Tribunal has jurisdiction to hear:
- (a)A claim to recover a debt or liquidated demand of money up to the prescribed amount; or
- (b)A claim arising out of a contract between a consumer and trader.
- (a)
- [21]Mr Martin’s claim does not satisfy either of the above. His is not for a debt or liquidated demand but a claim for breach of contract with damages to be assessed which the learned adjudicator did. The distinction between a “debt or liquidated demand” was discussed in C & k Home Investment Pty Ltd ATF v Sye & Anor[5]:
A claim is `liquidated’ when it seeks an amount that does not require any exercise of judicial fact-finding or discretion to crystallise it, or to arrive at a definite finding of quantum. If any assessment is needed, it must be by a process of simple mathematical calculation, without any input of judicial decision-making.
- [22]Even though SCA might be a ‘trader’ within the definition having regard to the business it conducts of selling motor vehicles, but as between these two parties and the subject matter of the proposed agreement, clearly it is not a trader.
- [23]The second and more important point is that the Tribunal did not have jurisdiction to make the orders in reliance on s 31 of the ACL. Under the Fair Trading Act jurisdiction is conferred on the Tribunal to determine some claims under the ACL, but s 50 of the FTA imposes limits on those claims. The section provides:
A proceeding for the purposes of a provision of the Australian Consumer Law (Queensland) listed in the table to this section must be heard in the Tribunal or in a court having jurisdiction for the proceeding having regard to.
- [24]Section 31 is not included in the table. The application of the ACL to matters brought in the Tribunal’s minor civil dispute jurisdiction was considered by the Appeal Tribunal in Sanctuary Cove Golf and Country Club Pty Ltd (ACN120 308 410 v Machon[6]. In that case Mr Machon sought to rely on the ‘unfair terms’ provision in the ACL, s 23, to avoid payment of overdue membership fees owing to the Sanctuary Cove Golf and Country Club an equity member. Mr Machon sought to resign his membership from the Club but s 7.4 of the Club’s by-laws prevented him from resigning. He was successful at first instance because the Tribunal found that the by-law was unfair applying s 23 and therefore the Club could not recover.
- [25]On appeal the club contended that the Tribunal did not have jurisdiction to consider the unfair terms provision of the ACL as s 23 was not a section referred to under s 50 of the FTA. The Appeal Tribunal agreed and held that QCAT’s jurisdiction to apply the ACL was limited to those sections referred to in is ss 50 and 51A of the FTA. As s 23 was not referred to in the Table in s 50 of the FTA, the Tribunal did not have jurisdiction to conclude that the term in the by-law was ‘unfair’:
The Australian Consumer Law has been adopted as a law of Queensland by the Fair Trading Act 1989 (Qld) (“FTA”) and is to be referred to as the ACL (Qld) Division 4 of the FTA confers jurisdiction to deal with particular matters arising under the ACL (Qld). Section 50 of the FTA confers original jurisdiction on the Tribunal in respect of proceedings for the purposes of the provisions listed in the table contained within s 50 where the subject of the proceeding would be a minor civil dispute within the meaning of the QCAT Act.
- [26]The Appeal Tribunal also provided a useful summary of the interaction of the ACL and the FTA insofar as QCAT’s jurisdiction is concerned:[7]
- The Tribunal has the jurisdiction conferred on it by the QCAT Act and enabling Acts: s 9(1) QCAT Act.
- An enabling Act confers jurisdiction if, in the case of original jurisdiction, it confers the power to make an application to the Tribunal in respect of a matter arising under that Act: s 9(3) QCAT Act.
- The Australian Consumer Law (schedule 2 to the Competition and Consumer Act 2010 (Cth)) is applied as a law of Queensland by the FTA: s 16 FTA.
- The FTA is an enabling Act as far as the ACL (Qld) is concerned: s 6(2) QCAT Act.
- The FTA confers jurisdiction to make an application in respect of certain provisions in the ACL (Qld): ss 50 and 51 of the FTA.
- There is no conferral by s 50 or s 51 of the right to make an application in respect of the unfair term provisions in the ACL (Qld).
- There is no jurisdiction to apply the unfair term provisions by way of a defence to a claim for moneys owed in the minor civil dispute jurisdiction. This “residual” jurisdiction is not contemplated by s 9 of the QCAT Act, nor open under the FTA. Further, in our view, a term is void only once it has been declared to be an unfair term.
Conclusion
- [27]Similarly, by reference to sub-paragraph (vi) above, as s 31 of the ACL is not included in the Table in s 50 of the FTA, it follows that irrespective of the procedural fairness point, the Tribunal did not have the jurisdiction to make the order under the ACL in reliance of s 31. The effect of this is that the decision made on 21 January 2021 must be set aside.
- [28]This of course does not mean that Mr Martin does not have a valid claim against SCA in a court of competent jurisdiction, but it is not one that can be heard in QCAT.
- [29]The orders of the Appeal Tribunal are that the applicant is given leave to appeal, the appeal is granted and the decision below is set aside.