Another brush with the law!!!!!

[artme]

Ana and I have taken action through QCAT to recover money owed to us by an ex friend.

A magistrate's tribunal hearing was set for 23rd. August here in Hervey Bay. We paid for a witness
to come by plane and were arranging travel for a second witness.

The Magistrate decided to hold a directions hearing today to see if the matter would be better off
being heard in Brisbane.

Three things stunned me about the hearing:

1) The magistrate had not read the file and blundered his way through it with input ( read corrections )from us.

2) More concern was shown for the respondent having to travel here as opposed to us going to Brisbane!!1

3) Ana has medical problems that need to be considered when she travels. At present she has a blood clot in her left leg.
This has the potential to be very serious and a doctor's letter was produced regarding this.
The magistrate wanted to know how long this would last. Well, who knows??


The upshot was that no regard was paid to our costs and concerns and the matter was referred to Brisbane.
Basically it appears that The magistrate considered that since matters arose in Brisbane, this is where
they should be heard.

That should make no difference!!!

I thought people at this level were supposed to posses some sort if wisdom. It appears not.

I came out with the distinct impression of hubris aplenty and an authoritarian view of the world by the power holder.

[Sturdee]

I really sympathize with you of the treatment you have received at the hands of the tribunal, however I know it is fairly typical of VCAT here, so I suppose it's the same with QCAT.

So I'm surprised that your lawyers advised you to go through a tribunal rather then the Courts.

Peter.

[tea lady]

Yes. Seems a lot of people end up with the opposite of logic when things go through any CAT. WE are having fun up here in Belgrave with them having OKed a MacDonalds in a completely inappropriate place. No there is no way to appeal the decision. So we have to resort to "illegal"
protests.

[Shedhand]

Ana and I have taken action through QCAT to recover money owed to us by an ex friend.

A magistrate's tribunal hearing was set for 23rd. August here in Hervey Bay. We paid for a witness
to come by plane and were arranging travel for a second witness.

The Magistrate decided to hold a directions hearing today to see if the matter would be better off
being heard in Brisbane.

Three things stunned me about the hearing:

1) The magistrate had not read the file and blundered his way through it with input ( read corrections )from us.

2) More concern was shown for the respondent having to travel here as opposed to us going to Brisbane!!1

3) Ana has medical problems that need to be considered when she travels. At present she has a blood clot in her left leg.
This has the potential to be very serious and a doctor's letter was produced regarding this.
The magistrate wanted to know how long this would last. Well, who knows??


The upshot was that no regard was paid to our costs and concerns and the matter was referred to Brisbane.
Basically it appears that The magistrate considered that since matters arose in Brisbane, this is where
they should be heard.

That should make no difference!!!

I thought people at this level were supposed to posses some sort if wisdom. It appears not.

I came out with the distinct impression of hubris aplenty and an authoritarian view of the world by the power holder.

Sounds an appalling situation mate. You might poo-poo this suggestion but you should contact your local State MP. Explain the health situation with your missus and the fact you were paying for witnesses to fly up to Hervey Bay. Ask him to speak to the Qld Attorney General on your behalf about the unsatisfactory transfer of the matter to Brisvegas and the impact this could have on your wife's health. Don't talk to a staffer, make an appointment to see the MP him/herself - a staffer will probably sit in and take notes anyway. Take down your own notes of what he/she said - don't use a tape recording device without permission. At the end of the meeting ask him/her to contact you when he/she has spoken to the AG. Give him/her a week to get back to you. If he/she or a staffer hasn't contacted you by the end of a week start ringing the member's office. Pester the office until you get an answer.
I used to be an MP in another life so I understand how it works. If all that fails do the same thing through your local Federal Member. The buggers are there to serve you so make them earn our money.
Good luck with it all.
Cheers
Sheddie

[AlexS]

Good advice, Sheddie. Never keep a dog and bark yourself.

[artme]

Just some notes on how QCAT works.

Firstly only claims for less than 20 grand can go through QCAT.

The first step after making application is to have a mediation session.
This can be done by phone if needed. (ours was ).
If mediation fails then the mediator recommends a hearing before a magistrate.
The magistrate can make directions for various things to happen before the case
is heard. In our case he shifted the hearing to Bris.

The involvement of a solicitor is not obligatory. We have chosen to not to have a
solicitor in court because of cost - about $400 an hour. We have, however sought
advice from a solicitor. He is impressed with our research an organization of material
for for the case. That is very encouraging.

Now the tricky bit will be to get our heads around the court process.
We have found that trying to do this is akin to a death of a thousand cuts. Every piece of information
has to be extracted like a deeply rooted tooth. Each little turn results in a range of possibilities.
For instance, today we asked the registrar at the courthouse for some information and help.
He told us , (about 45 mins before the hearing) that the magistrate could even throw the case out there and then.
I had to return home and get evidence we had gathered just in case we had to press our case for a hearing with a
magistrate and a tribunal.


In order to get information in a timely manner we are going to annoy the hell out of the "system"and
do research on the QCAT website.
We may be at some disadvantage in that the respondent has stated he will be using a solicitor.

The only good thing is that the decision made today gives us a little more time to refine our case.

I don't want to spend time and nervous energy trying to reverse today's decision. I will lodge a protest after the case.

Our other concern is what sort of an order will be made for repayment of money should we win the case.
The respondent may well plead poverty and offer to pay at $5/week.

Apparently it will be left up to us to pursue and enforce any court order. We will check this more thoroughly.

[Mulgabill]

Just some notes on how QCAT works.

Firstly only claims for less than 20 grand can go through QCAT.

The first step after making application is to have a mediation session.
This can be done by phone if needed. (ours was ).
If mediation fails then the mediator recommends a hearing before a magistrate.
The magistrate can make directions for various things to happen before the case
is heard. In our case he shifted the hearing to Bris.

The involvement of a solicitor is not obligatory. We have chosen to not to have a
solicitor in court because of cost - about $400 an hour. We have, however sought
advice from a solicitor. He is impressed with our research an organization of material
for for the case. That is very encouraging.

Now the tricky bit will be to get our heads around the court process.
We have found that trying to do this is akin to a death of a thousand cuts. Every piece of information
has to be extracted like a deeply rooted tooth. Each little turn results in a range of possibilities.
For instance, today we asked the registrar at the courthouse for some information and help.
He told us , (about 45 mins before the hearing) that the magistrate could even throw the case out there and then.
I had to return home and get evidence we had gathered just in case we had to press our case for a hearing with a
magistrate and a tribunal.


In order to get information in a timely manner we are going to annoy the hell out of the "system"and
do research on the QCAT website.
We may be at some disadvantage in that the respondent has stated he will be using a solicitor.

The only good thing is that the decision made today gives us a little more time to refine our case.

I don't want to spend time and nervous energy trying to reverse today's decision. I will lodge a protest after the case.

Our other concern is what sort of an order will be made for repayment of money should we win the case.
The respondent may well plead poverty and offer to pay at $5/week.

Apparently it will be left up to us to pursue and enforce any court order. We will check this more thoroughly.

[Sturdee]

Now the tricky bit will be to get our heads around the court process.
We have found that trying to do this is akin to a death of a thousand cuts. Every piece of information
has to be extracted like a deeply rooted tooth. Each little turn results in a range of possibilities.

And that's why IMO you should never go through a tribunal. Although my experiences are based on VCAT but a quick reading of the QCAT website indicates that it would be similar.

As the applicant the tribunal will assume that you know what you are doing and instead they will lean over backwards to help the defendant. That they helped you so far is out of the norm.

One wrongly filled out form or non lodgement of a required item and they will normally dismiss your case, require reapplying and procedures to be followed again.

Then when you finally are successful you will need to enforce payment through the Magistrate Court, where again it can be delayed by about a year or so if the other party has a good lawyer. DAMHIK.

Finally once you are successful again and the other party still fails to pay you can move for bankruptcy based on the order. An other wonderful area to become an expert in.

Of course if the other party has no assets and stops working and goes on unemployment benefits he will never have to pay the debt as benefits can not be touched. If he has assets and a small war service home loan you really would have wasted time and effort as any assets covered by WSH loans are by law unavailable to creditors.

I wish you all the best but remember that you are not dealing with a justice system but a legal system, which will bend over backwards to help the guilty and not the innocents.

Peter.

[rustynail]

Artme, a couple of observations;
1) You are representing yourself. Not a good idea if you are confident of your case. Fool for a client and all that stuff.
2) The tribunal doesnt consider your costs as they would be recoverable upon a win.
As too would be your legal costs. So why not a decent lawyer?

As a property developer, I have often had to recover monies owed. Im quite familiar with the legal system, but that doesn't mean I like it. I have a good diligent solicitor who once told me, "The tribunal will, statistically, only make judgement for 80% of a claim. This is because they want to be seen as fair to both parties." The fact the matter is being transferred to Bris may lend some weight to that theory.
Interestingly, we have never had a matter go to the tribunal. Reason? A good diligent solicitor. His negotiating skills are invaluable and to date, all matters have been settled out of court, including costs.
Good luck with your endeavors. I know how stressful and frustrating it can be.

[artme]

Many thanks too you all for your comments and commiserations. Both are much appreciated.

One of the problems with hiring a solicitor is he cost factor, something I have already mentioned.
In your case Les, you are in a position where to retain the services of a good solicitor is well worth
your while. For me this is a one off and I have to consider the initial outlay balanced against the chances
of winning AND getting the money back in reasonable time, if at all.

The fellow has assets and we have taken the step of naming both him and his wife as respondents.

The return of our money would be great, but in some ways i will be satisfied to have a ruling in our
favour just to show this fellow that he is a proven teller of untruths. Perhaps a pyrrhic victory but
at least a moral one.

Sturdee, you are right to say that we are dealing with the legal system and not a justice system.
This was all too apparent at the directions hearing.

[Sturdee]

The return of our money would be great, but in some ways i will be satisfied to have a ruling in our
favour just to show this fellow that he is a proven teller of untruths. Perhaps a pyrrhic victory but
at least a moral one.

That I can understand and appreciate.

Being able to prove that someone, you once considered a friend, had wronged you is often worth the extra effort and expense in pursuing justice.

As you said it may only be a moral victory but where would we be without morals.

Good luck with your endeavours.


Peter.

[bsrlee]

A couple of tricks to be aware of are 1) sending you a cheque for any part of the money owed and 2) offering you an 'envelope' on the 'court house steps' with a few dollars in it.

With the cheque another favourite trick is to include the words 'full and final settlement' somewhere in the accompanying paperwork - firstly if you accept (bank) the cheque it invalidates the sum mentioned in the court paperwork and sends you back to square one, ditto if you accept any envelope containing money. The 'full and final payment' line is often used when dealing with the inexperienced - if the cheque is processed it means you now have no further claim on the defaulter - this is generally used against companies where the cheque is often separated from any accompanying documents and is automatically banked at the end of the day, before anyone in authority realises what is going on.

Illegitimae nil carborundum as they say.