APIA v Munibi
[2012] QCATA 249
•30 November 2012
| CITATION: | APIA v Munibi [2012] QCATA 249 |
| PARTIES: | APIA (Applicant/Appellant) |
| v | |
| Hydeh Munibi (Respondent) |
| APPLICATION NUMBER: | APL206-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 30 November 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for leave to appeal is refused. |
| CATCHWORDS: | ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS FOR REVIEW – FAILURE TO OBSERVE STATUTORY PROCEDURE – where the Respondent brought an insurance claim against the Appellant – where the Appellant did not attend the hearing – where the Tribunal ordered that the Appellant pay the Respondent the sum claimed – whether the notice of hearing was properly served on the Appellant – whether leave to appeal should be granted Corporations Act 2001 (Cth), s 109X Cachia v Grech [2009] NSWCA 232 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Ms Munibi brought a claim in QCAT’s minor civil disputes jurisdiction under an insurance policy she had with APIA. Her claim arose as a consequence of an alleged burglary at her home.
The matter was set down for hearing before a Magistrate, sitting as a QCAT member, in Toowoomba at 11:00am on 2 March 2012. Ms Munibi appeared, but APIA did not. The learned Magistrate ordered that APIA pay Ms Munibi $5,142.00 for her claim and $95.00 for her filing fee.
APIA has sought leave to appeal that decision. In its submissions it says that it received a Notice of Hearing at its correct Locked Bag address but the Notice contained no reference to the ‘... individual person responsible for the matter’. Although APIA’s written submissions to the Appeal Tribunal and a supporting affidavit filed by one of its investigators are not specific, it can reasonably be assumed that APIA asserts that because this happened, nobody within the insurer’s business identified or claimed the Notice and took the necessary steps to arrange to attend the hearing.
In its submissions APIA says that it had given particulars of the ‘individual responsible’ in previous documents filed in the Tribunal; and contends that because those particulars were not included in the Notice of Hearing, that Notice was not properly served.
APIA had earlier made the same submissions in support of an application for reopening, which was refused.
APIA does not dispute, and the court file confirms, that the Notice of Hearing was posted to it at its correct mail address on or around 22 July 2011. It follows that there was a six month interval between the mailing of the Notice and the hearing date. Again it may be safely assumed that, despite that lengthy interval, the insurer’s own internal arrangements did not enable it to identify its insured, its policy, or the individual employee within its office who had responsibility for Ms Munibi’s claim.
Nothing in the QCAT Act or Rules, or statutory provisions relating to the service of documents upon corporations, requires that individual internal reference particulars be inserted in these notices – or, indeed, in any documents required to be served upon a party.
Under s 92 of the QCAT Act the principal registrar is required to give notice of the time and place of the hearing to each party. Under QCAT r 76 that notice can be given in writing. Under r 39 notices and documents may be given to an ‘entity’ by post to the relevant address – or, by fax or email. Under r 39(2) the ‘relevant address’ is the ‘service address in the entity’s address for service’. It is not in issue that the Notice of Hearing was sent to APIA’s correct address for service.
Under s 109X of the Corporations Act 2001 (Cth) documents may be served on a company by posting them to the company’s registered office. Like the QCAT Act and Rules, there is no statutory requirement that any documents must contain the internal reference code of the entity or corporation.
Under QCAT Practice Direction No 8 of 2009 personal service on a corporation can be effected by posting it to the company’s registered office. Again, there is no statutory requirement that the recipient’s internal reference details must be included.
APIA’s submissions to the Appeal Tribunal do not rely upon any authority for the proposition that a Notice of Hearing addressed to a corporation or entity is not properly served if it does not contain the corporation’s internal reference particulars.
APIA also complains that the learned Magistrate’s decision contains no reasons. Section 121 of the QCAT Act provides that the Tribunal must give its final decision in writing. Clearly, it has done so. Under s 122, if the Tribunal makes a decision and does not give written reasons a party may, within fourteen days after the decision takes effect, request written reasons. Nothing in APIA’s submissions suggests it has applied under that provision.
Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage[1]; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief[2]. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?[3]
[1]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
[2] Cachia v Grech [2009] NSWCA 232 at 2.
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
Although APIA disputes, in its submissions, its obligation to pay Ms Munibi’s claim in the sum allowed by the learned Magistrate, there is nothing to suggest the decision made in the hearing did not accord with the evidence, and the weight of evidence, received from her and on her behalf.
It follows that nothing in APIA’s submissions establishes that the Notice of Hearing was not properly served in accordance with the relevant provisions and rules, or that any of the other grounds which might attract a grant of leave to appeal have been established.
It must be conceded, of course, that the circumstance of which APIA complains will arise from time to time in any large organisation with a multiplicity of individual records, maintained under an internal filing or record keeping system. It is also to be observed, however, that the Notice of Hearing bore the name of its insured and, also, the number of the MCD proceeding to which APIA had itself, according to its investigator’s affidavit, referred in previous correspondence. It is apparent that in a period of six months the insurer was unable to locate and identify the file internally, despite that information. In those circumstances it cannot be said that there is any question of general importance warranting a grant of leave to appeal.
For these reasons the application for leave to appeal is refused.
0