Booij & Multiply Plus Pty Ltd v Roper

[2015] QCATA 157

CITATION:		Booij & Multiply Plus Pty Ltd v Roper [2015] QCATA 157
PARTIES:	Hans Booij Multiply Plus Pty Ltd (Applicant/Appellant)
v
Anthony Roper Judith Roper (Respondent)

APPLICATION NUMBER: APL135-15

MATTER TYPE: Appeals

HEARING DATE: 19 October 2015

HEARD AT: Brisbane

DECISION OF: Senior Member Endicott
Member Howard

DELIVERED ON: 21 October 2015

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The application for leave to appeal is refused.

CATCHWORDS:

APPLICATION FOR LEAVE TO APPEAL-MINOR CIVIL DISPUTE-where respondents through their own administrative error failed to appear at the hearing of the minor civil dispute- where adjudicator proceeded to determine the proceeding in the respondents absence- where ground of appeal is breach of natural justice because respondents did not present their case- whether breach of natural justice

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28

Aon Risk Services Australia Ltd v Australian National University [2009] 239 CLR 175
Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69
Council of the City of Wollongong v Cowan (1955) 93 CLR 435.
Kioa v West (1985) 159 CLR 550
Pickering v McArthur [2005] QCA 294

APPEARANCES:

APPLICANT: Mr Johannes Booij appeared representing himself and Multipy Plus Pty Ltd as a Director 

RESPONDENT: Anthony and Judith Roper appeared representing themselves

REASONS FOR DECISION

1. An adjudicator made a decision that Mr Hans Booij and Multiply Plus Pty Ltd must pay to Anthony Roper and Judith Roper the sum of $5,105.00.

2. Mr Booij and Multiply Plus Pty Ltd (‘Multiply Plus’) subsequently filed an application for leave to appeal and appeal. In essence, the grounds of appeal are that Mr Booji and Multiply Plus Pty Ltd were denied natural justice because due to an administrative error, he did not attend the hearing and the decision was made without the Tribunal hearing from the respondents. He says that natural justice has been denied because the full facts of the matter were not presented to the Tribunal. In essence, he seeks a re-hearing because of his own failure to attend. He seek to rely upon a significant volume of material which was not before the learned Adjudicator at the hearing which relates to his arguments concerning the original application made by the Ropers.

The applications for leave to appeal and appeal

1. Leave to appeal will usually only be granted where there is a reasonable argument that the decision of the Tribunal was attended by error, and it is necessary to correct a substantial injustice to the applicant caused by that error.[1]

   [1]Pickering v McArthur [2005] QCA 294 at [3].

2. If leave is granted, the role of the Appeal Tribunal in hearing the appeal is to determine whether the appeal identifies that the learned Adjudicator was in error in reaching his decision. On appeal, new evidence (that is, evidence that was not before the Tribunal originally hearing the application) is not permitted without the leave of the Tribunal. Leave may be granted where the evidence was not reasonably available at the hearing; had it been, an opposite result was likely and the new evidence is credible.[2]

   [2]Council of the City of Wollongong v Cowan (1955) 93 CLR 435.

3. The Tribunal must conduct its proceedings in a way which is fair and reflects the substantial merits of the case with as little as formality and technicality as possible.[3] In doing so, it must afford parties natural justice. Natural justice is a flexible concept: the requirements must be adjusted to the statutory framework governing the Tribunal in question: Kioa v West.[4] However, the two most basic principles are that a party must have the opportunity to present its case and is entitled to have the proceeding determined by an impartial tribunal.

   [3]Queensland Civil and Administrative Tribunal 2009 (Qld) (‘QCAT Act’) s 28.

   [4](1985) 159 CLR 550 at 584-585.

Did the Tribunal err in determining the proceeding in the absence of Mr Booji and Multiply Plus  

1. An argument is made by Mr Booji that, in part, the denial of natural justice arises because the Ropers did not attend a mediation scheduled for 11 December 2014. (The Ropers had in fact sought a rescheduling of the mediation as they were unable to attend on the appointed date). However, those events are irrelevant to whether the learned Adjudicator failed to afford natural justice to the respondents at the subsequent hearing.

2. It is not in dispute that the learned adjudicator was entitled to decide the proceeding in the absence of Mr Booij and Multiply Plus and give a decision in favour of Mr and Mrs Roper. Mr Booij is frank about why he and Multiply Plus missed the hearing. The date was incorrectly diarised by someone in his office.

3. However, Mr Booij and Multiply Plus were afforded the opportunity by the Tribunal to present their case. They simply failed to do so because of their own administrative error. The statutory regime places obligations upon parties themselves to take care in their dealings with Tribunal matter and act in their own best interests. QCAT’s resources for resolving disputes, serve as the High Court has observed, ‘the public as a whole, not merely the parties to the proceedings.’[5]  The Minor Civil Disputes jurisdiction is a busy and demanding one, in which parties are expected to act in their own interests.

   [5]Aon Risk Services Australia Ltd v Australian National University [2009] 239 CLR 175 at 217 as discussed in Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69.

4. The fact of the administrative error on the part of Mr Booij and Multiply Plus, does not demonstrate an arguable error in the primary decision. It follows that the application for leave to appeal must be refused. The result for Mr Booij and Multiply Plus may be unfortunate. However, any disadvantage they have suffered has been at their own hands, not a failure of the Tribunal to afford them the opportunity to present their case.

5. For the sake of completeness, we make the observation that the MCD file reveals that the Tribunal treated correspondence received from Mr Booji on 12 March 2015 as an application for reopening of the proceeding. A notation on the file on 19 March 2015 refers to the reopening application as ‘refused’. We are unaware whether reasons were given for that decision, but in any event observe the comments of the former President of the Tribunal to the effect that a party’s own error in failing to attend on a properly notified hearing date is not a reasonable excuse for failing to attend. Therefore, it would not constitute a reopening ground. [6]

   [6]Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69 at [9]-[13].