Bessarb Pty Ltd v Slater Leahy Investments

[2011] QCATA 298

CITATION: Bessarb Pty Ltd v Slater Leahy Investments [2011] QCATA 298

PARTIES:	Bessarb Pty Ltd t/as Laughter Australia (Applicant/Appellant)
v
Slater Leahy Investments t/as How Bazaar Trading (Respondent)

APPLICATION NUMBER: APL205-11

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Judge Fleur Kingham, A/President
Richard Oliver, Senior Member

DELIVERED ON: 27 September 2011

DELIVERED AT: Brisbane

ORDERS MADE:

1.    Bessarb Pty Ltd is granted leave to apply for leave to appeal or appeal the Minor Civil Dispute decision in claim number 2041/10 heard in Southport.

2.    The application made in case number APL205-11 is accepted as that application and will proceed under case number APL346-11 and

a.    Any procedural requirements in relation to filing a further application are waived; and

b.    All material filed by either party in APL205-11 is accepted as material filed in case number APL346-11.

3.    Bessarb Pty Ltd must file in the registry one copy and give to Slater Leahy Investments one copy of its written submissions in support of the application for leave to appeal (and if successful in that application in support of the appeal), by 4.00pm 21 October 2011.

4.    Slater Leahy Investments must file in the registry one copy and give to Bessarb Pty Ltd one copy of its submissions in reply to both the application for leave to appeal and in support of the appeal by 4.00pm 11 November 2011.

5.     The Tribunal will determine the application on the papers without an oral hearing not before 4.00pm 11 November 2011.

CATCHWORDS:

Appeal – Where application dismissed for non compliance – where applicant contends he had complied with the Tribunal’s directions – leave granted to bring fresh application

Queensland Civil and Administrative Tribunal Act2009, ss 28(2), 48, 49

Lindgren v Aaron Trigg Painting [2011] QCATA 297

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

Judge Kingham, A/President

1. I have read the reasons, in draft, of Mr Oliver and agree this is an appropriate case in which to grant leave to commence a new appeal with consequential orders to preserve the status quo.

Mr Oliver, Senior Member

1. On 14 June 2011 Bessarb Pty Ltd applied for leave to appeal or appeal in respect of a decision of the Tribunal sitting in the minor civil disputes jurisdiction made on 8 April 2011.  In the usual way the Appeal Tribunal made directions for the conduct of the application on 22 June 2011.  Those directions required Bessarb to file an affidavit of service and submissions in support of the appeal.  Bessarb did not comply with the direction.

1. On 22 July 2011 a further direction was made that if Bessarb did not comply with the direction to file its submissions by 11 August 2011 the application would be dismissed.  On 23 August 2011 I made an order dismissing the application for non compliance with the direction made on 22 July 2011.  Subsequently, Bessarb contacted the registry to advise the submissions were in fact filed on 12 August 2011. 

1. What Bessarb is referring to is a letter from its solicitor, Ivan Poole Lawyers dated 10 August 2011, which sets out a history of the transactions between Bessarb and Slater Leahy Investments.  The contents of the letter could not be regarded as submissions in support of the appeal to identify error on the part of the original decision maker, or address, even generally, issues of substantial injustice.

1. The difficulty here is that Bessarb genuinely believed that the letter from its solicitors did constitute the submissions for purposes of the appeal and therefore contends that it had complied with the directions made.  Bessarb now asks the Tribunal to reconsider the decision dismissing the application for those reasons. 

1. Had I been aware that the letter from Bessarb’s solicitors did intend to constitute its submissions for the purposes of the appeal, the application would not have been dismissed. 

1. The Tribunal has an obligation to act fairly and according to the substantial merits of the case.[1]  On the basis of Bessarb’s understanding as to the content of the letter and its compliance with the directions, to dismiss the application would not have achieved the objectives of the Act.

   [1]        Queensland Civil and Administrative Tribunal Act 2009, s 28(2).

1. In similar circumstances[2] the Deputy President said that it could be argued that where the application has been dismissed for non compliance it has not been heard and decided.  That is clearly the case here because there has been no hearing of the application for leave to appeal on its merits.  I therefore prefer to adopt a course adopted in Lindgren that Bessarb may commence a fresh application for leave to appeal with leave of the President or Deputy President.[3]  Leave can be granted if the President or Deputy President considers the interests of justice require leave be given. 

   [2]        Lindgren v Aaron Trigg Painting [2011] QCATA 297.

   [3]        Queensland Civil and Administrative Act 2009, ss 48, 49.

1. As the Deputy President is sitting on this Appeal Tribunal, orders will be made to accept the original application as a fresh application and to treat all documents filed to date as documents filed in this new appeal.  This will preserve each party’s position as it was prior to the appeal being dismissed.