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QCAT party denied procedural fairness

A Queensland Civil and Administrative Tribunal (QCAT) matter will be redecided after an appeal found the Tribunal Member allowed only one side to present their case before making an order.

In a decision published on Friday, Judicial Member Loos said the August 2023 hearing of a civil dispute between a car dealership and recruiter was affected by an error of law, and an appeal was necessary to correct a substantial injustice caused by the error.

He said the recruiter, In Work International Pty Ltd, was denied procedural fairness because the hearing was conducted in such a way as to “involve too great an intervention in the process by the Tribunal Member, and 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”.

In Work had been ordered to pay $25,367 to car dealership Sunco Motors Pty Ltd after the recruiter failed to produce any mechanic candidates under a contract between the parties.

In Work appealed the order on the grounds of actual and/or apprehended bias, and a failure to provide procedural fairness and/or natural justice.

At the Maroochydore hearing, neither party was legally represented. Instead, each was represented by an employee, in Ronan Larkin (Sunco) and Ralph Hunter (In Work).

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Judicial Member Loos said after being sworn in, Mr Larkin barely spoke.

“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,” he said.

He said the authorities about the appropriate limits of judicial intervention were well known.

“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.

“Unfortunately, the Tribunal Member in this case did a number of those things.”

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Judicial Member Loos said the questioning of only one party at the hearing was only 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,” he said.

“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.”

Judicial Member Loos said because the hearing was affected by an absence of procedural fairness, the order made at the end could not truly be considered a consent order, as it was said to be.

He said that given the conclusion about the procedural fairness ground, it was not necessary to consider the apprehended bias ground.

The order dated 2 August 2023 was set aside and the matter remitted to QCAT to be determined by a different member according to law.

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