Xtreme First Impressions Pty Ltd v Miller
[2023] QCATA 31
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- Xtreme First Impressions Pty Ltd v Miller[2023] QCATA 31
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Xtreme First Impressions Pty Ltd v Miller[2023] QCATA 31
Xtreme First Impressions Pty Ltd v Miller[2023] QCATA 31
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Xtreme First Impressions Pty Ltd v Miller [2023] QCATA 31 |
PARTIES: | XTREME FIRST IMPRESSIONS PTY LTD (Applicant) v ROSALINE MILLER (Respondent) |
APPLICATION NO/S: | APL222-21 |
ORIGINATING APPLICATION NO/S: | MCDO58/21 (Cairns) |
MATTER TYPE: | Appeals |
DELIVERED ON: | 5 April 2023 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member Forrest SC |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – PROCEDURE – FROM QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – BY LEAVE OF TRIBUNAL – where the Applicant seeks to appeal a decision by a Magistrate sitting as a Tribunal Member in a Minor Civil Dispute – where the Applicant sought leave to be legally represented as the Respondent is a solicitor – where there is no complex factual or legal consideration in respect of the substantive claim – where the application for leave is dismissed Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 43, s 142(3) Pickering v McArthur [2005] QCA 294, cited |
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]This is an application for leave to appeal and, if leave is granted, an appeal against the orders of a Magistrate sitting as a Tribunal Member in a Minor Civil Dispute – Minor Debt matter.
- [2]On 23 July 2021, his Honour Magistrate Pinder, sitting as the Tribunal Member at first instance, made orders in the first instance proceedings dismissing the Applicant’s application pursuant to s 43 of the Queensland Civil and Administrative Tribunal Act 2009 (the “QCAT Act”) for leave to be legally represented in the first instance proceedings.
- [3]On 12 August 2021, the Applicant filed an Application for Leave to Appeal against that decision. That is a long time ago.
- [4]I became a Judicial Sessional Member of this Tribunal in June 2022. Upon my appointment, I was given many of these outstanding applications for appeal to determine on the papers. I have since then, at the same time as running my private practice as a barrister and mediator, been working through the matters I have been given the responsibility to determine. I expect the delay in the determination of this matter between filing and its delivery to me to determine is attributable to the scant resources that the Tribunal has at its disposal. I regret the time it has taken the Tribunal to deliver this decision, most particularly the months since the file was given to me to determine. This is the first I could get to it, given the volume of matters I am dealing with.
SOME FACTUAL BACKGROUND
- [5]The Applicant and the Respondent entered into a contract for the Applicant to provide refurbishment services to the Respondent’s swimming pool at her residential property. The contract stipulated that the fibre glass pool would be finished with a coating of paint in “Sapphire Blue”. The contract provided for a deposit to be paid in the sum of $5,225. That was half of the total contract price. It was paid by the Respondent.
- [6]The job was completed and the Applicant required payment of the balance. The Respondent did not pay it, asserting that the pool had been finished with the wrong colour paint, namely, “Deep Blue” instead of “Sapphire Blue”. She wanted it done in “Sapphire Blue”. The Applicant asserted to the Respondent that the “Deep Blue” colour it had used was the exact same colour as “Sapphire Blue”, but because it came from a different supplier it had to have a different name. The Respondent rejected that assertion.
- [7]The Applicant commenced proceedings in the Tribunal in its Minor Civil Dispute – Minor Debt jurisdiction for payment of the balance of the contract price, namely, another $5,225. The Respondent has defended the proceedings.
- [8]The Respondent is a solicitor, but she appears as an individual in the proceedings. Because she is a solicitor, the Applicant argued that he should be given leave to have legal representation. He argued though that it was because of the complexity of the issues involved.
THE FIRST INSTANCE DECISION
- [9]The learned Magistrate sitting first instance in the Tribunal dismissed the application on the basis that there are no complex factual or legal considerations in respect of the substantive claim. His Honour also reasoned that the mere fact that the Applicant has brought proceedings against a person who just happens to be a solicitor by profession does “not invoke properly a requirement to consider granting the applicant leave to be represented”. [Italics added]
THE APPLICATION FOR LEAVE TO APPEAL AND THE APPEAL
- [10]The Applicant lodged an Application for Leave to Appeal against his Honour’s decision. In that Application, the Applicant asserted that he did not require leave to appeal.
- [11]However, pursuant to s 142(3) of the QCAT Act, leave to appeal is required if the decision appealed against is not the Tribunal’s final decision in a proceeding. The decision appealed against was just a procedural decision in the proceeding and was not the Tribunal’s final decision in the proceeding. Accordingly, I am satisfied that leave to appeal is required.
- [12]Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.[1]
MY DETERMINATION
- [13]Firstly, I am not satisfied that there is any error on the part of the learned Magistrate to be corrected and, secondly, I do not consider refusal of leave to be legally represented in the substantive proceedings creates injustice just because the person you are claiming against happens to be a solicitor. I do not consider it appropriate to grant leave to appeal or to determine the appeal as such.
- [14]I dismiss the Application for leave to appeal.
- [15]I also consider the question of the Tribunal’s jurisdiction to hear the substantive proceedings as a Minor Civil Dispute – Minor Debt matter as opposed to a building dispute matter should be carefully considered by all concerned before the matter proceeds further to substantive hearing in the minor civil dispute jurisdiction.
Footnotes
[1] Pickering v McArthur [2005] QCA 294.