White v Hayes[2023] QCATA 116

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

What is this application about?

1. [1]
   The applicant, Ms White, advertised a lounge for sale on Gumtree. The lounge was purchased sight-unseen by the respondents, Mr and Mrs Hayes, who then arranged for it to be collected from Ms White and delivered to their home on 8 March 2022.
2. [2]
   Mr and Mrs Hayes were not happy with the condition of the lounge and filed an application for a minor civil dispute – consumer dispute (MCDCD) on 21 April 2022 seeking a refund of the $2,500.00 they paid Ms White for the lounge, plus $550.00 being the costs they incurred to have it delivered to them.
3. [3]
   By a decision made 9 November 2022 the Tribunal below ordered that Ms White pay Mr and Mrs Hayes the $3,050.00 payment sought.
4. [4]
   Ms White wants to appeal the decision, but to do so, leave is first required.^[1]

5. [5]
   Upon reviewing the application for leave to appeal or appeal and the MCDCD file on 11 April 2023 I made directions inviting submissions from the parties as follows:

The Appeal Tribunal intends to decide as a preliminary matter whether the application for leave to appeal should be granted and whether the judgment given in favour of Robyn Hayes on 9 November 2022 was irregularly entered. Relevant considerations include that the Adjudicator determining the matter may have lacked jurisdiction to hear and determine Claim MCDO411/22 on 9 November 2022, because:

a. The application was filed as a minor civil dispute – consumer trader dispute;

b. The application sought a refund which is in the nature of an Australian Consumer Law remedy;

c. The sale appears to have been a private sale on Facebook Marketplace whereby, according to the application, Ms White was selling her mother’s lounge upon her mother entering a nursing home;

d. Such a matter is not a ‘minor civil dispute” as defined in Schedule 3 to the Queensland Civil and Administrative Tribunal Act 2009 (Qld), having regard to the definition of “trader” also in Schedule 3, as “a person who in trade or commerce carrying on a business of supplying goods or services”.

6. [6]
   In summary, an error of law appears to have been made by the Tribunal below in making an order in the MCDCD where it lacked the jurisdiction to do so, in which case, in the interests of justice and to save time and costs to the parties, the Appeal Tribunal ought deal with the matter on the papers, by granting leave to appeal, allowing the appeal, setting the order made on 9 November 2022, and dismissing the MCDCD for want of jurisdiction. 

7. [7]
   In reply to directions, the parties made the following brief submissions:

   1. Ms White says:
      1. She is not a trader because she works as a secondary school teacher and does not own a business or carry a business on in any capacity.  She says that “no trade or commerce (business) was involved in this transaction”.
      2. Australian Consumer Laws do not apply to one-off sales by private sellers, and this was a one-off sale by a private seller.
      3. She purchased the lounge in late 2021 from an elderly women going into nursing home care and on-sold it to Mr and Hayes shortly afterwards, making no profit on the re-sale.
   2. Mr and Mrs Hayes say:
      1. They have no comment on the question of jurisdiction, other than to say the Tribunal below ought to have considered it when making the original decision.
      2. They maintain their entitlement to a refund based on their assertions that the condition of the lounge was falsely advertised by Ms White and arrived in a damaged condition.

Jurisdiction

8. [8]
   As the Appeal Tribunal has observed, “there is a fundamental obligation on any court or tribunal to satisfy itself as to jurisdiction when being asked to quell controversies that come before it”.^[2]

9. [9]
   Section 12 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) confers the Tribunal’s jurisdiction over MCDs.  A ‘minor civil dispute’ is relevantly defined as:^[3]

…(b) a claim arising out of a contract between a consumer and trader, or a contract between 2 or more traders, that is—

1. for payment of money of a value not more than the prescribed amount; or
2. for relief from payment of money of a value not more than the prescribed amount; or
3. for performance of work of a value not more than the prescribed amount to rectify a defect in goods supplied or services provided; or
4. for return of goods of a value not more than the prescribed amount; or
5. for a combination of any 2 or more claims mentioned in subparagraphs (i) to (iv) where the total value of the combined claim is not more than the prescribed amount…

10. [10]
    Under section 12(1) of the QCAT Act ‘the tribunal may exercise its jurisdiction for a minor civil dispute if a relevant person has, under the Act, applied to the tribunal to deal with the dispute.’ ‘Relevant person’ is defined in section 12(4)(b) of the QCAT Act to mean, subject to subsections 12(4)(c)-(f), for a claim arising out of a contract between a consumer and a trader, the consumer.
11. [11]
    Consumer and trader are terms defined in Schedule 3 of the QCAT Act where, relevantly: 

    1. a ‘consumer’ is an individual who buys or hires goods other than—
       1. for resale or letting on hire; or
       2. in a trade or business carried on by the individual; or
       3. as a member of a business partnership…; and
    2. a ‘trader’ is a person who in trade or commerce—
       1. carries on a business of supplying goods or providing services; or
       2. regularly holds himself, herself or itself out as ready to supply goods or to provide services of a similar nature.

Application for leave to appeal

12. [12]
    In determining whether to grant leave, the Appeal Tribunal must be satisfied that:

    1. there is a reasonably arguable case of error in the primary decision;^[4]
    2. there is a reasonable prospect that the appellant will obtain substantive relief;^[5]
    3. leave is needed to correct a substantial injustice caused by some error;^[6] or
    4. there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.^[7]
13. [13]
    As to the first question of error, there is no question that the arrangement between the applicant (as seller) and the respondents (as buyers) was a one-off private sale of second-hand furniture.  It is not disputed that the applicant was not in the business of selling furniture, nor did she hold herself out as being so and she was, therefore, not a ‘trader’ as defined in the QCAT Act.  Accordingly, the Hayes’ MCDCD application is not a claim arising out of a contract between a consumer and a trader to engage the Tribunal’s jurisdiction to hear it as a ‘minor civil dispute’.
14. [14]
    Leave to appeal is granted because:

    1. there is a clear case of error in the primary decision of the Tribunal below; and 
    2. it is inevitable that Ms White will obtain substantive relief in the proceedings; and
    3. the making of an order where the Tribunal had no power to do so is a matter of substantial injustice to Ms White. 

Appeal

15. [15]
    The Tribunal fell into an error of law in deciding the MCDCD application in circumstances where it did not have the jurisdiction to do so.  Accordingly, the appeal should be and is allowed and the decision set aside.
16. [16]
    In deciding the appeal on a question of law, the next step for the Appeal Tribunal is to:^[8]

    1. return the matter to the MCD jurisdiction to determine; or
    2. set aside the decision and substitute its own decision.^[9]
17. [17]
    The evidence before the Appeal Tribunal is more than sufficient to conclude that the MCDCD application is incurably defective because the tribunal lacks jurisdiction to hear it. If I return the matter to MCDCD jurisdiction, the only decision available to the tribunal will be to dismiss the application. Consistent with the objects of the QCAT Act which include to have the tribunal deal with matters in a way that is accessible, fair, just, economical, informal, and quick,^[10] in the interests of expediency, I elect to substitute the decision with a decision to dismiss the application in MCDO411-22. 

Orders

18. [18]
    The decision of the Appeal Tribunal is therefore that:

    1. Leave to appeal is granted.
    2. The appeal is allowed.
    3. The decision of 9 November 2022 is set aside.
    4. The application in a in a minor civil dispute – consumer dispute filed 21 April 2022 (MCDO411/22 – Brisbane) is dismissed.