Kartadinata v Siraj [2025] QCATA 105

• [8] In the Tribunal below the respondent, through his solicitor, contended that a gratuitous bailment arose when the respondent delivered his vehicle to the applicant's workshop. The respondent submitted that there was intense rainfall in the days preceding the flooding, combined with severe weather warnings for intense upcoming rainfall and major flood warnings for upper Brisbane issued on Friday 25 February 2022.
• [9] The respondent contended that a reasonable trader in the applicant's location would have closely monitored the ongoing severe weather conditions and forecasts. He argued that the applicant should have:

(a) informed the respondent about the impending flooding and requested that he collect the vehicle.

(b) relocated the vehicle to higher ground to avert damage.

(c) secured a suitable insurance policy to cover vehicles under his care.

• [10] The respondent also contended that the applicant breached statutory guarantees under the Australian consumer law, namely:

(a) the failure to exercise due care and skill under s 60 of the Australian Consumer Law ('ACL'); and

(b) the failure to supply service within reasonable time under ss 62-63 of the ACL.

• [11] In an affidavit filed in the Tribunal below, the applicant deposed:

(a) on or about 23 February 2022, the respondent brought the vehicle to his shop.

(b) the respondent told him that the vehicle's Check Engine Light ('CEL') was illuminated. The applicant was busy with bookings, but he promised to call the respondent when he had time to check the CEL.

(c) the applicant did not provide the respondent with a quotation because he did not know what was wrong with the vehicle.

(d) although it had been raining for over a week at the time, the applicant had no indication or warning about flooding in the Oxley area.

(e) on Friday 25 February 2022, at 6pm, the applicant shut his workshop and left for home. The roads were all clear and he had not received any warnings or indications of any possible flooding in the area.

(f) the next morning, when the applicant attempted to return to his shop the roads were blocked, and it had started flooding.

(g) the applicant was unable to contact his customers because their details were in his workshop book, which was located at the workshop.

(h) the applicant was unable to access his shop until Wednesday 2 March 2022.

(i) at the time of the flooding the applicant had several of his own vehicles at his workshop.

• [12] In written submissions to the Tribunal below the applicant submitted:

(a) while negligence involves a failure to take reasonable care to address risks, it does not require a person to take action against every risk that could possibly arise.

(b) the risk of harm was not foreseeable. The Brisbane City Council Floodwise Report indicated that the probability of a flood of the same magnitude as the one the that occurred was between 1%-2% for 62 Blunder Road, Oxley, Queensland.

(c) a flood of a similar magnitude had not occurred in the previous ten years and only once before in the previous 15 years.

(d) there was no water pooling near the workshop, nor was there any warning from the Brisbane City Council that the suburb could flood.

• [13] The respondent gave viva voce evidence at the hearing which was consistent with his written material above.

• [14] The applicant's 'Application for leave to appeal or appeal' advances nine 'claims'. It contains some duplication and I have been only able to discern five unique grounds of appeal.

• [15] The applicant's first ground of appeal contends that the Tribunal below denied the applicant procedural fairness because it refused his application for legal representation but granted the respondent's application for legal representation.
• [16] Following is a short chronology of relevant interlocutory events concerning the grant of legal representation:

(a) On 14 June 2023, the respondent filed in the Tribunal an application for leave to be legally represented.

(b) On 21 August 2023, the respondent filed submissions in support of his application for leave to be legally represented.

(c) On 22 August 2023, Member Scott-Mackenzie made an order granting the parties "leave to be legally represented in the proceeding" and required them to file and serve on each other "submissions on the jurisdiction of the Tribunal to hear and decide the proceeding".

(d) On 28 September 2023, Adjudicator Adcock made directions, inter alia:

(i) granting the respondent leave to be legally represented at the hearing.

(ii) requiring the applicant to submit a Form 56 within 14 days of his order if they sought leave to be legally represented.

(iii) listing the matter for hearing.

(e) On 2 November 2023, the applicant applied for legal representation. That same day, Adjudicator Adcock denied the applicant leave to be legally represented. The Tribunal below did not provide written reasons for its decision.

• [17] The applicant contends that he is a mechanic who does not have a legal background. Accordingly, the applicant argues that he was required, for the first time, to curate legal arguments in response to a claim for breach of bailment. The applicant submits that for a lay person, defending an action for negligence in relation to a bailment is a complex issue, and the Tribunal's failure to grant leave amounted to a breach of the rules of natural justice.

• [18] The applicant's second ground of appeal is that the learned adjudicator did not give him any direction about the evidence required to discharge the reverse onus of proof inherent to a bailment claim. In conjunction with the Tribunal's refusal to grant the applicant legal representation, the applicant submits that the failure to give directions amounted to a denial of natural justice.

• [19] The applicant contends that the Tribunal below did not apply the correct legal test when determining the standard of care the defendant ought to have exercised. He submits that the test the learned adjudicator applied was "what reasonable care would a business owner of a mechanic shop take in storing the vehicles". It submits that the test that the learned adjudicator should have applied was "did the Applicant take the level of reasonable care with the respondent's vehicle which they would have taken in respect of their own vehicle".
• [20] The applicant points out that the applicant left several of his own vehicles at the shop. Accordingly, the applicant submits that he took the same level of care with the respondent's vehicle as he did with his own.

• [21] The applicant contends that the Tribunal failed to make findings about the following:

(a) when the applicant should have warned the respondent to collect his vehicle.

(b) whether such a warning would have avoided the loss or damage to the respondent's vehicle.

• [22] Without making findings about such matters, the applicant contends that the learned adjudicator was not entitled to conclude that the applicant's conduct damaged the respondent's vehicle.

• [23] Lastly, the applicant contends that the Tribunal below failed to consider material evidence (the Floodwise Report) before making its decision. The applicant contends the report was not on the Tribunal file at the hearing and therefore the learned adjudicator could not have considered it when handing down her decision.
• [24] The applicant submits the report is relevant to deciding the questions of reasonable foreseeability and whether the applicant took reasonable care.

• [25] This is an appeal from a minor civil dispute proceeding. Therefore, the applicant is required to obtain the Tribunal's leave to appeal.[2] Leave may be granted where:

(a) there is an important point of law or question of general public importance.[3]

(b) where an appeal is necessary to correct a substantial injustice to the applicant and there is a reasonable argument that there is an error to be corrected.[4]

• [26] For reasons that I will elaborate on below, I have resolved that Appeal Tribunal ought to grant the applicant leave to appeal to correct the following legal errors:

(a) the Tribunal below lacked jurisdiction to decide a bailment claim because the parties had not entered a legally binding contract.

(b) at the hearing, the Tribunal below denied the applicant natural justice by failing to offer him an adjournment to engage legal representatives.

• [27] Neither the parties nor the Tribunal below considered the question of jurisdiction at first instance, nor did they raise it on appeal. Nevertheless, "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".[5]
• [28] The Tribunal's jurisdiction to hear minor civil disputes is enlivened by s 12(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ('QCAT Act'). It relevantly provides that the Tribunal may exercise its jurisdiction for a minor civil dispute if a relevant person has under the QCAT Act, applied to the tribunal to deal with the dispute.
• [29] Relevantly, a 'relevant person' means "for a claim arising out of a contract between a consumer and trader - the consumer".[6]
• [30] A 'consumer', for services, means an individual for whom services are supplied for fee or reward (my emphasis) other than -

(a) in a trade or business carried on by the individual; or

(b) as a member of a business partnership.

• [31] Schedule 3 of the QCAT Act defines the 'term minor civil dispute' as follows:

_minor civil dispute - _

1 Minor civil dispute means -

(a) a claim to recover a debt or liquidated demand of money of up to the prescribed amount; or

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

(i) for payment of money of a value not more than the prescribed amount; or

(ii) for relief from payment of money of a value not more than the prescribed amount; or

(iii) for performance of work of a value not more than the prescribed amount to rectify a defect in goods supplied or services provided; or

(iv) for return of goods of a value not more than the prescribed amount; or

(v) 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; or

(c) a claim for an amount of not more than the prescribed amount for damage to property caused by, or arising out of the use of, a vehicle; or

(d) a tenancy matter; or

(e) a claim that is the subject of a dispute under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, chapter 2 and is for an amount not more than the prescribed amount; or

(f) a matter in relation to which a person may, under the Building Act 1975, chapter 8, part 2A apply to the tribunal for an order.

• [32] Only s 1(b) of the above definition bears any relevance to the present appeal.
• [33] Importantly, pursuant to the above definition, a dispute is only a 'minor civil dispute' if there is a 'claim arising out of a contract between a consumer and trader'.
• [34] Here, there was no such contract. It is not in contest that the applicant did not provide the respondent with a quotation because he intended to inspect the vehicle first.[7] A contract will fail if an essential term is not agreed.[8] Price is an essential term.[9]
• [35] The respondent himself deposes[10] that he told the applicant the red warning light in the vehicle was illuminated, to which the applicant replied "no worry, I will check your car. Please leave the key in the car and I will check it. After completing the inspection, I'll let you know", or words to that effect. Those words the applicant uttered are noncommittal. He evinces no firm intention to enter a binding contract. The applicant makes no promise beyond agreeing to inspect the vehicle to determine what repairs were required. Acceptance of a contract must be unequivocal.[11] Upon inspecting the vehicle, it remained open to the applicant to decline to perform the work. Conversely, if the respondent took umbrage with the price of the quotation, or the scope of the repairs, or the time it might take to complete the repairs, it was open to him to decline the quotation.
• [36] In Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd,[12] the High Court said, "the courts will not lend their aid to the enforcement of an incomplete agreement, being no more than an agreement of the parties to agree at some time in future". Similarly, in Toyota Motor Corp Australia Ltd v Ken Morgan Motors Pty Ltd,[13] it was held that a contract is incomplete if the parties have deliberately left some future term to be settled by future agreement. Here the applicant and respondent had not agreed on price, the scope of the proposed work or the time for completion. Therefore, any proposed agreement between them was incomplete and unenforceable.
• [37] As a corollary to the above, if no contract existed, the Tribunal lacked jurisdiction to hear the claim in its minor civil dispute jurisdiction and the applicant's appeal must succeed.
• [38] I have considered whether the arrangement for the applicant to examine the vehicle amounted to a 'collateral contract', that is a contract the consideration for which is entry into another contract. I ultimately concluded that the arrangement was not a collateral contract, as no consideration flowed to the applicant even if he successfully completed his side of the bargain. There was no guarantee that respondent would give the applicant the job after receiving a quotation. Neither party lead any evidence to suggest the applicant would be renumerated for merely examining the vehicle.
• [39] Further, I am not satisfied the respondent is a 'relevant person' who is entitled to apply to the Tribunal to deal with the dispute. Section 12(4)(b) of the QCAT Act provides that a relevant person for a claim arising a contract between a consumer and trader is a 'consumer'. The QCAT Act relevantly defines a consumer to mean an individual to whom services are supplied for fee or reward. Here, the applicant did not supply services for fee or reward. He merely promised to examine the vehicle and provide a quotation. If I am correct in my assessment that the respondent is not a relevant person to bring a claim in the Tribunal's minor civil dispute jurisdiction, the applicant's appeal must succeed.

• [40] Turning now to the applicant's contention that the Tribunal denied the applicant procedural fairness. Ordinarily, there is no obligation on a Tribunal to ensure that party has legal representation, and the absence of legal representation is not a denial of procedural fairness.[14]
• [41] However, the parties in this appeal have proceeded on the basis that the Tribunal below refused the applicant leave to be legally represented in the proceeding. They are wrong. On 22 August 2023, Member Scott-Mackenzie made an order granting the parties "leave to be legally represented in the proceeding" and required them to file and serve on each other "submissions on the jurisdiction of the Tribunal to hear and decide the proceeding". The Tribunal's subsequent order refusing to grant the applicant legal representation on 2 November 2023, was therefore a nullity.
• [42] Moreover, at the hearing, the Tribunal below did not interrogate its previous orders with sufficient thoroughness to ascertain whether the applicant had been granted legal representation. Because of that omission the applicant, who had no legal training, was subjected to the invidious task of mounting a rational and cohesive defence to a bailment argument conceived and argued by a qualified lawyer. Unsurprisingly, he failed in that endeavour.
• [43] As J R S Forbes aptly points out in his seminal text 'Justice in Tribunals':[15]

Natural justice makes two demands[16] before a person's legal rights are adversely affected, or their "legitimate expectations" are dashed: (1) an opportunity to show why adverse action should not be taken (audi alteram partem or the "hearing rule"), a sufficient opportunity to say everything that can be said in his favour...[17]

• [44] In Italiano v Carbone & Ors,[18] a case where a ground of appeal contended by the appellant involved a failure by the Consumer Trader and Tenancy Tribunal ('CTTT') to grant an adjournment, Basten JA relevantly said:

[85] A claim based on procedural fairness, in these circumstances, must demonstrate that the confusion in the mind of the Claimant was such that he cannot be said to have foregone a reasonable opportunity to make an application for an adjournment, or the circumstances were such that the Tribunal itself had an obligation to consider offering an adjournment.

• [45] Here, the circumstances warranted the Tribunal below offering the applicant an adjournment to exercise his earlier conferred right to have a legal representative present. By failing to offer the applicant an adjournment, the Tribunal perpetuated the existing power imbalance between the parties and rendered nugatory the applicant's capacity to meaningfully respond to the respondent's case. The fact that neither the respondent's lawyer, or the adjudicator, or the applicant's lawyer in the appeal, turned their minds to the question of jurisdiction, reinforces my conviction that the applicant ought to have been afforded the opportunity to be legally represented in the Tribunal below.
• [46] I reject the respondent's submission that the applicant had the opportunity to appeal Adjudicator Adcock's decision to refuse legal representation but failed to do so. The applicant was plainly unaware that the Tribunal had already granted him leave to be legally represented. At the hearing, the Tribunal below had duty to address that misunderstanding.[19] Its failure to do so amounts to a denial of natural justice. I would therefore grant the applicant leave to appeal and allow the appeal, as the "denial of natural justice is an error of law[20] that deprives a tribunal of jurisdiction and nullifies its decision".[21]
• [47] I do not propose to address grounds 1 and 2 of the appeal, as they are somewhat overtaken by my findings above, however I will consider grounds 3, 4 and 5 for completeness.

• [48] Concerning ground 3, I am not persuaded that the learned adjudicator did not apply the correct legal test when determining the standard of care the applicant ought to have exercised. The applicant's submission that he left several of his own vehicles at the shop is misguided. The test of reasonableness is primarily objective rather than subjective.[22] As J Palmer aptly points out in 'Palmer on Bailment',[23] "there is probably, in general terms, no significant difference between the care which a reasonable and prudent man normally bestows on his own goods and that which he normally bestows on goods belonging to another".

• [49] In my view, it was unnecessary for the Tribunal to make an explicit finding about the precise time the applicant should have warned the respondent to collect his vehicle, and whether such a warning would have averted loss. In his affidavit, the applicant deposed that the flooding took place between 6pm on Friday 25 February 2022 and Saturday 26 February 2022.[24] The respondent particularised the applicant's negligence to include the failure to closely monitor ongoing severe weather conditions and forecasts and take measures to safeguard the vehicle. It can be inferred that learned Adjudicator must have concluded that the applicant should have taken such measures before leaving his shop on Friday.

• [50] There is no substance to the applicant's claim that the learned adjudicator did not consider the Floodwise Report. The respondent filed the report in in the Tribunal registry on 25 October 2023.[25] The report was brought to the learned adjudicator's attention during the hearing,[26] and it did not cause her to change her decision.

• [51] There is no doubt that a bailment can arise in the absence of a contract.[27] The respondent may well have an arguable cause in an alternative jurisdiction, but not in the Tribunal. I propose to grant the applicant leave to appeal, allow the appeal and set aside the decision of the Tribunal below. There is no utility in remitting the decision back to the Tribunal below given my findings about the absence of jurisdiction.

[1] Penfold v Firkin & Balvius [2023] QCATA 11.

[2] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i).

[3] Younan v Queensland Building Services Authority [2011] QCA 1.

[4] Smith v Ash [2010] QCA 112, [50]; Costigan v Marshall [2010] QCA 344.

[5] Penfold v Firkin & Balvius [2023] QCATA 11.

[7] See Affidavit of A Siraj sworn 12 June 2023, para 36, Affidavit of A Kartadinata dated 18 July 2023, para 5 & 6.

[8] Hempel v Robinson [1924] SAStRp 45; [1924] SASR 288; Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [2016] HCA 26; (2016) 333 ALR 384 at 394_._

[9] JW Carter, Contract Law in Australia (7th ed, 2018) at [4-01].

[10] Affidavit of A Siraj sworn 12 June 2023, para

[11] Appleby v Johnson (1874) LR 9 CP 158.

[12] [1982] HCA 53; (1982) 149 CLR 600 at 604.

[13] [1994] VicRp 55; [1994] 2 VR 106 at 130.

[14] Nguyen v Minister for Immigration and Multicultural Affairs [2000] FCA 1265; 101 FCR 20.

[15] J.R.S. Forbes, Justice in Tribunals (The Federation Press, 6th edition, 2024) Chapter 7 Natural Justice: General, [7.1].

[16] Lewenberg & White v Legal Aid (Vic) (2005) 22 VAR 354; [2005] VSC 28.

[17] South Australia v O'Shea (1987) 163 CLR 378 at 405; Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 at 660-661.

[19] Jones v Ekermawi [2009] NSWCA 388.

[20] J.R.S. Forbes, Justice in Tribunals, [7.2] citing Escobar v Spindaleri (1987) 7 NSWLR 51 at 57, 59, 60; Clements v Independent Indigenous Advisory Committee (2003) 37 AAR 309; [2003] FCAFC 143 at [8], [35], [41].

[21] J.R.S. Forbes, Justice in Tribunals, [7.2] citing Ridge v Baldwin [1963] UKHL 2; [1964] AC 40; Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147; Malupo v Minister for Racing, Gaming and Licensing [2002] NTSC 51; (2002) 170 FLR 111.

[22] Turner v Merrylees (1892) 8 T.L.R.

[23] N. Palmer, Palmer on bailment (Sweet & Maxwell, 3rd edition, 2009).

[24] Affidavit of A Kartadinata dated 18 July 2023, [9]-[11].

[26] Transcript of proceedings, p 28, Line 10.

[27] Parastatidis v Kontaridis [1978] VR 499 at 454-45 per Harris J; Ogunmefun v Nigeria Airways Ltd [1979] 7-9 CCHCJ 186 at 136.