In Work International Pty Ltd v Sunco Motors Pty Ltd
[2024] QCATA 113
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- Unreported Judgment
- In Work International Pty Ltd v Sunco Motors Pty Ltd[2024] QCATA 113
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In Work International Pty Ltd v Sunco Motors Pty Ltd[2024] QCATA 113
In Work International Pty Ltd v Sunco Motors Pty Ltd[2024] QCATA 113
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | In Work International Pty Ltd v Sunco Motors Pty Ltd [2024] QCATA 113 |
PARTIES: | In Work International Pty Ltd (appellant) v Sunco Motors Pty Ltd (respondent) |
APPLICATION NO/S: | APL279 of 2023 |
ORIGINATING APPLICATION NO/S: | MCD019 of 2023 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 17 October 2024 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member Loos |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – leave to appeal – where Tribunal Member engaged in cross-examination or intervention – whether invention amounted to a denial of procedural fairness – where Tribunal Member indicated an outcome, attempted to facilitate a settlement or outcome or lead negotiations between the parties on the record – where error of law for which leave should be granted to correct substantial injustice Queensland Civil and Administrative Tribunal Act 2009 (Qld) Baldwin v Von Knorring [2015] QCATA 107 Chandra v Queensland Building and Construction Commission [2014] QCA 335 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 Critchley v Isabel [2021] QCATA 23 Galea v Galea (1990) 19 NSWLR 263 McWilliam v Australian College of Information Technology Ltd & Ors [2021] QCATA 38 Pickering v McArthur [2005] QCA 294 R v Clancy (2022) 302 A Crim R 144 R v Gibb [2018] 1 Qd R 315 R v SDH [2019] QCA 134 R v T, WA (2014) 118 SASR 382 Royal Guardian Mortgage Management Pty Ltd v Nguyen & Anor (2016) 332 ALR 128 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 |
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
Introduction
- [1]Sunco Motors Pty Ltd contracted In Work International Pty Ltd to recruit mechanics. In Work was paid $31,000 upfront. In Work did not produce any candidates.
- [2]Sunco applied to the Tribunal for the return of $25,000 of the amount paid to In Work. The application was heard and determined in Maroochydore on 2 August 2023. What happened at that hearing forms the basis of this appeal.
- [3]The hearing concluded with the Tribunal Member ordering In Work to pay Sunco the sum of $25,367 within 60 days. That order was said to be by consent.
- [4]
- [5]In Work seek to appeal that Order on the following grounds:
- the Tribunal made an error of law in hearing the matter as the circumstances disclosed by the member hearing the matter gave rise to actual bias and/or apprehended bias discernible to a fair minded lay observer; and
- the Tribunal made an error of law by the member hearing the matter failing to provide the Appellant with procedural fairness and/or natural justice.[2]
- [6]Because this is an appeal from the Tribunal in its minor civil disputes jurisdiction, leave is necessary.[3] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the appellant caused by that error.[4]
New material
- [7]Sunco has applied to adduce fresh evidence. Ordinarily, an applicant seeking leave to adduce such evidence must satisfy three tests. Could Sunco have obtained the evidence with reasonable diligence for use at the hearing? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?[5]
- [8]Sunco wishes to rely on the new affidavits of Mr Ronan Larkin and Mr Raymond Jones. Those affidavits go to the apprehended bias ground. I grant leave to rely on those two affidavits because each affidavit covers a subject that was not known to be in issue at the hearing, could have an important impact and offers evidence that is credible.
- [9]For reasons outlined below, it is ultimately unnecessary to consider the two new affidavits in detail. The apprehended bias ground is not determinative here.
- [10]Sunco also wishes to rely on submissions filed on 20 November 2023. Those new submissions deal with issues raised in In Work’s reply submissions. The Tribunal is not bound by the usual rules of evidence and procedure and may inform itself as it considers appropriate.[6] Leave to rely on those submissions is granted.
- [11]It is convenient to deal with the procedural fairness ground first.
The procedural fairness ground
- [12]The Tribunal is to deal with matters in a way that is accessible, fair, just, economical, informal and quick: section 3(b) of the Queensland Civil and Administrative Tribunal Act 2009. That said, “the requirements of a fair hearing are not to be sacrificed to achieve economy, informality and speed”.[7]
- [13]The Tribunal had an obligation to afford the parties procedural fairness. This appeal is concerned with the fairness of the procedure adopted, not the fairness of the decision produced by that procedure.[8]
- [14]In this instance, unfortunately, In Work was not afforded a fair hearing.
- [15]The hearing on 2 August 2023 commenced at 10.28am and concluded at 12.05pm. The transcript runs to 39 pages. Neither of the parties were legally represented. Each party was represented by an employee of the business.
- [16]Sunco was represented by Mr Ronan Larkin. In Work was represented by Mr Ralph Hunter. Part of the way through the hearing, both representatives were sworn in so that what they were telling the Tribunal could be evidence.
- [17]
- [18]Otherwise, the hearing was comprised of the Tribunal Member questioning Mr Hunter. The questions were direct and forthright. They included some commentary on Mr Hunter’s responses.
- [19]
- [20]In R v SDH,[12] reference was made to Michel v The Queen [2010] 1 WLR 879, where the Privy Council said of a judge at trial:
…Of course he can clear up ambiguities. Of course he can clarify the answers being given. But he should be seeking to promote the orderly elicitation of the evidence, not needlessly interrupting its flow. He must not cross-examine witnesses, especially not during evidence-in-chief. He must not appear hostile to witnesses, least of all the defendant. He must not belittle or denigrate the defence case. He must not be sarcastic or snide. He must not comment on the evidence while it is being given. And above all he must not make obvious to all his own profound disbelief in the defence being advanced.
- [21]Unfortunately, the Tribunal Member in this case did a number of those things.
- [22]The decision on whether the point of unfairness has been reached must be made in the context of the whole trial and in light of the number, length, terms and circumstances of the interventions.[13] That the hearing was imbalanced, with only questioning of one party, is only a part of the picture. The way those questions unfolded showed the Tribunal Member’s deep scepticism about In Work’s case. In my respectful view, the line of questioning went beyond seeking clarification, or testing the arguments to assist the Tribunal’s consideration.
- [23]It appears, superficially at least, that Sunco has a good argument to pursue before the Tribunal. Unfortunately, the competing arguments were not debated before the Tribunal Member because the hearing went off in a particular direction and never turned back. The competing arguments not having been aired and tested, the true answer remains unknown.
A separate point about procedural fairness
- [24]The Order made by the Tribunal Member was said to be by consent. I have concluded that the hearing was affected by an absence of procedural fairness. In that circumstance the Order made at the end of that hearing was not, truly, a consent Order.
- [25]While alternative dispute resolution exists as a core function of the Tribunal, the authorities delineate where the Tribunal’s attempts at alternative dispute resolution will lapse into a denial of procedural fairness amounting to an error of law.
- [26]The Appeals Tribunal cannot be satisfied that the parties have been afforded procedural fairness when the Tribunal below:
- indicated an appropriate outcome;
- attempted to facilitate a settlement, while on the record and during the course of the hearing, with specific proposals; and
- led negotiations between the parties on the record.[14]
- [27]Here, there are instances of the Tribunal Member doing just those things.[15]
- [28]One can understand the Tribunal Member wanting to conclude the dispute. That effort went awry because it subsumed what ought to have been a hearing at which both sides could present their case.
Conclusion about the procedural fairness ground
- [29]In my view, the Tribunal did not accord In Work procedural fairness on two separate bases:
- first, the hearing was conducted in such a way as to involve too great an intervention in the process by the Tribunal Member, as outlined above; and
- second, the hearing was conducted in such a way as to involve the Tribunal Member indicating an outcome, attempting to facilitate a settlement or outcome and leading negotiations between the parties on the record.
- [30]The matter is remitted to the Tribunal for determination according to law. It would be asking too much of the Tribunal Member who dealt with it on 2 August 2023 to re-visit the matter. The remitter should be to a different Member.
- [31]Compromise of the dispute appeared to be within reach in 2023. The matter would benefit from a compulsory conference to facilitate/encourage a negotiated outcome.
The apprehended bias ground
- [32]Given the conclusion about the procedural fairness ground, it is unnecessary to consider the apprehended bias ground.
Orders
- [33]The Orders are:
- Leave for Sunco to rely on new material and further submissions is granted;
- leave to appeal is granted;
- the appeal is allowed; and
- the Order dated 2 August 2023 is set aside and the matter is remitted to the Tribunal to be determined by a different Tribunal member according to law.
Footnotes
[1]By Order made on 19 September 2023 by Member Lember.
[2]Application for leave to appeal or appeal of In Work International Pty Ltd dated 30 August 2023, p 3.
[3]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i).
[4]Pickering v McArthur [2005] QCA 294, [3].
[5]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, 408.
[6]Queensland Civil and Administrative Tribunal 2009 s 28(b)-(c).
[7]Chandra v Queensland Building and Construction Commission [2014] QCA 335 at 69, per Lyons J, with whom McMurdo P and North J agreed.
[8]SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 160.
[9]Mr Larkin was also sworn in at Transcript 1-8, line 19.
[10]Mr Larkin features in the transcript only seven more times – to answer five “Yes” or “No” questions asked by the Tribunal Member, to correct the Tribunal Member on timing of correspondence sent by one of the parties, and then to give a two line response to a further question asked by the Tribunal Member.
[11]R v T, WA (2014) 118 SASR 382 at [37]-[52] (Kourakis CJ with whom Anderson J agreed), Royal Guardian Mortgage Management Pty Ltd v Nguyen & Anor (2016) 332 ALR 128 at [14]-[20] (Basten JA) and at [161]-[172] (Ward JA) and R v SDH [2019] QCA 134 at [53] (Bowskill J (as her Honour then was) with whom Gotterson and McMurdo JJA agreed).
[12][2019] QCA 134 at [53]. Bowskill J was quoting from R v Gibb [2018] 1 Qd R 315 at [78].
[13]Adopting a part of the analysis of Kirby A-CJ (as his Honour then was) in Galea v Galea (1990) 19 NSWLR 263 at 281, referred to by the Chief Justice in R v T, WA (2014) 118 SASR 382 at [44] and approved by McMurdo and Flanagan JJA and Beech AJA in R v Clancy (2022) 302 A Crim R 144 at [17].
[14]Critchley v Isabel [2021] QCATA 23 at [5]; Baldwin v Von Knorring [2015] QCATA 107 at [24]; McWilliam v Australian College of Information Technology Ltd & Ors [2021] QCATA 38 at [7].
[15]Transcript 1-14, lines 26-30, Transcript 1-15, lines 21-27, Transcript 1-24, lines 28-36 and Transcript 1-35, line 20 through to 1-38, line 1.