Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd

[2010] QCATA 69

CITATION: Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69

PARTIES:	Breezeway Developments Pty Ltd (Applicant/appellant)
v
ADG Hydraulics Pty Ltd (Respondent)

APPLICATION NUMBER:            APL128 -10              

MATTER TYPE:

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: Justice Alan Wilson, President
Susan Gardiner, Member

DELIVERED ON:   11 November 2010

DELIVERED AT:   Brisbane

ORDERS MADE:  Leave to appeal refused

CATCHWORDS : 

MINOR CIVIL DISPUTE  –  DECISION IN ABSENCE OF PARTY – LEAVE TO APPEAL –  where appellant filed response but failed to attend hearing due to error of its own – where applicant seeks leave to appeal decision – where applicant does not address usual test for leave – whether leave should be granted

MINOR CIVIL DISPUTE  ­–  REOPEN PROCEEDINGS – where adjudicator made decision against appellant in its absence – where appellant could have applied to reopen  proceedings – whether reasonable excuse for non-attendance

Queensland Civil and Administrative Tribunal Act 2009, ss 3(b), 13(1), 28(3)(d), 50, 51, 61, 62(1), 93, 137, 138, s 142(3)(a)(i)

Aon Risk Services Australia Limited v Australian National University [2009] 239 CLR 175, cited

REASONS FOR DECISION

President:

1. I have had the advantage of reading the decision of QCAT Member Ms Susan Gardiner in draft.  I generally agree with her reasons, and her conclusion, and the order she proposes.  I wish, however, to add some remarks concerning the applicant’s position had it chosen to apply to have the judgment against it set aside or the proceedings reopened rather than apply, as it has, for leave to appeal.

1. Strictly speaking the adjudicator’s decision here was not a ‘decision by default’ under Chapter 2, Part 5, Division 2 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). In that Division, s 50 permits a decision by default for debt in circumstances were a respondent must respond to an application to recover a debt or liquidated demand of money, and fails to do so. Under s 51 that decision by default may be set aside, on application by the respondent, at the Tribunal’s discretion.

1. What occurred here, as the helpful reasons of the learned adjudicator of 22 June 2010 show, was that the respondent in the original proceedings (the applicant here, Breezeway Developments Pty Ltd) failed to attend for a mediation and the adjudicator, as she was entitled to do, proceeded to a hearing and decided the matter in the absence of the appellant – the procedure allowed under s 93 of the QCAT Act.

1. Under Chapter 2 Part 7 Division 7 of the QCAT Act a party who does not appear at a hearing but has a reasonable excuse for not attending may apply to the Tribunal for the proceeding to be reopened: ss 137, 138. That application has to be brought within twenty-eight days of the hearing. In this case the hearing occurred on 22 June 2010 and Breezeway Developments lodged its application for leave to appeal on 29 June 2010. Hence the applicant brought a proceeding well within that time limit, albeit a different one.

1. The QCAT Act contains a number of provisions which show that the Tribunal should not be bound up by formality, or an undue focus upon process. In general terms it will deal with matters in ways that are just, and informal: s 3(b). In the Minor Civil Disputes jurisdiction it must make orders that it considers fair and equitable to the parties: s 13(1). In conducting its proceedings it must act with as little formality and technicality as the proper consideration of the matters before it permits: s 28(3)(d). In particular, under s 61 it may waive compliance with procedural requirements under the QCAT Act or the Rules, on its own initiative; and, under s 62 it may give a direction at any time and do whatever is necessary for the speedy and fair conduct of the proceeding: s 62(1).

1. It is not in dispute that ADG’s judgement, obtained from the adjudicator, was regularly entered – ie, in the absence of Breezeway Developments’ representative at the hearing, the learned adjudicator was entitled to proceed to determine the matter, and give ADG a decision in its favour. As observed earlier that is not, strictly speaking, a decision by default (and I pause to observe that the dispute in the Minor Civil Disputes jurisdiction below shows that Breezeway Developments had, in fact, filed a response).

1. That said, the test referred to by the learned Member in considering whether an application to set aside a decision by default might have succeeded – whether or not Breezeway Developments has shown a good reason for failing to attend – is in virtually identical terms to the ground which falls to be considered when reopening is sought – whether the party that did not appear ‘…had a reasonable excuse for not attending the hearing’: s 137(a).

1. Breezeway Developments is, in its application for leave to appeal, creditably frank about what occurred and why it missed the mediation and the hearing. Its representatives misread the hearing date on the notice and turned up at the courthouse two days later.

1. The question is whether or not that is a ‘reasonable excuse’. The incorrect reading of a plainly notified date does not, I think, qualify. QCAT has statutory obligations to deal with matters in ways that are accessible, economical and quick: s 3(b). The Minor Civil Disputes jurisdiction, in particular, is one in which the Tribunal has a broad jurisdiction to make orders that it considers fair and equitable including, importantly, orders dismissing an application if it considers that course to be appropriate: s 13(1). It is common knowledge that the jurisdiction is a busy and demanding one, in which parties are expected to present their own cases, and act in their own interests.

1. That statutory regime places obligations upon parties themselves: to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’s resources for the resolution of disputes serve, as the High Court has recently observed ‘…the public as a whole, not merely the parties to the proceedings’[1].  

   [1]Aon Risk Services Australia Limited v Australian National University [2009] 239 CLR 175, at 217, para [113]

1. The document Breezeway Developments received from QCAT giving it notice of the date of the mediation, or hearing, was an important one. Its officers and staff were required to pay attention to its contents. Nothing, it appears, impeded Breezeway Developments’ comprehension of the document or its opportunity to learn, from it, the correct date.

1. In the context of the legislation and the demands upon public resources like those which fund QCAT it is not unreasonable to impose, upon a party, an expectation and an obligation that it will ensure it acts in its own best interests, or accept the consequences; and that mistakes like those made here, while attracting sympathy, can no longer prevail over statutory and practical constraints on available resources for dispute resolution.

1. When these matters are appreciated, it will be seen that a party’s own fundamental error in misreading a document cannot be categorised as a ‘reasonable excuse’ for the purpose of revisiting proceedings which were otherwise correctly and legitimately brought to an end.

Member Susan Gardiner:

1. ADG Hydraulics Pty Ltd (ADG) is a design and engineering company providing a design consultation service.  ADG prepared a fee proposal report for the Applicant Breezeway Developments Pty Ltd (Breezeway) on the design of a wastewater treatment and drainage system as part of an application to a local Council about an extension to an existing Shopping Centre.

1. ADG charged $825 for the site inspection and a further $2,260 for the development approval documentation.  Breezeway paid the fee for the site inspection but did not pay the remained as a dispute arose between the parties concerning the quality of the report. 

1. ADG commenced an application under the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act) to recover the funds allegedly owing as a minor civil dispute between the parties. A response was filed to the application by Breezeway. It is not disputed by Breezeway that the matter was set down at Southport on 22 June 2010, first for a mediation between the parties and then for a hearing before the learned adjudicator that day if the mediation did not resolve the issues.

1. On 22 June 2010 Breezeway did not attend at the Southport Courthouse despite a notice of the mediation and hearing before the Tribunal being issued to both parties. The matter was decided by the learned adjudicator in the absence of Breezeway in favour of ADG with the Tribunal ordering that Breezeway pay ADG the sum of $2,342.05 within 7 days.

1. On 1 July 2010 Breezeway filed an application for leave to appeal the decision of the adjudicator.  The grounds of appeal contained on the application for leave to appeal state that Breezeway’s representatives mistakenly arrived at the Southport Courthouse on 24 June instead of 22 June, two days after the matter had been dealt with.  The application explains that this was due to a mistake on their behalf when reading the calendar.  Evidence of a local government parking ticket is provided to support this claim.  There is no dispute that proper notice of the hearing was given to Breezeway, only that a mistake was made by the company’s representatives as to the proper day.

1. Section 93 of the QCAT Act allows the Tribunal to hear and decide a matter where a person has not attended a hearing and this is the proper action taken by the learned adjudicator on 22 June having been satisfied that proper notice had been given to Breezeway of the hearing date.

1. Breezeway has chosen to appeal the decision of the learned adjudicator.   Leave is necessary to bring the appeal[2]. Breezeway could have sought relief under s51of the QCAT Act to set aside the default order with the applicant seeking to explain its failure to defend the action on the 22^nd of June.  

   [2]Section 142(3)(a)(i) of the QCAT Act

1. 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; or, there is a reasonably arguable case of error in the primary decision and reasonable prospect of the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?

1. Breezeway’s submissions in support of its ground of appeal are in substance an argument on the original claim by ADG.  There are no submissions in support of the leave to appeal application that address the usual tests for such leave being granted. 

1. Breezeways’ representatives simply made an error reading the calendar and attended on the wrong day for the hearing – unfortunately late rather than early.  Breezeway can show no other error other than its own.

1. The application for leave to appeal should be refused.

1. Finally, the Tribunal is obliged to conduct its proceedings in a way which is fair, and reflects the substantial merits of the case with as little formality in technicality as possible[3] As observed earlier, Breezeway could have applied to set aside the decision by default under s 51of the QCAT Act and under its obligations, it is appropriate for this Appellate Tribunal to consider whether that relief could be available to Breezeway by this route.

   [3]Section 28 of the QCAT Act

1. The decision by default was regularly entered. A regularly obtained default judgment will usually only be set aside if the filed response has an arguable case and there is some good reason for failing to attend the hearing. While Breezeway may have met the first test it cannot meet the second – a good reason for failing to attend the hearing. There is no basis for concluding an application under s 51 would have merit.