Charoentanakorn v Bain

[2010] QCATA 7

CITATION: Charoentanakorn v Bain [2010] QCATA 7

PARTIES:	Prapruek Charoentanakorn and Cindy Norman (Applicants)
v
David Bain (Respondent)

APPLICATION NUMBER:            APL008-10               

MATTER TYPE:

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: President

DELIVERED ON:   22 April 2010

DELIVERED AT:   Brisbane

ORDERS MADE:       Application for leave to appeal dismissed

CATCHWORDS : 

CLAIM STARTED BY MINOR - PRACTICE AND PROCEDURE – Queensland Civil and Administrative Tribunal Act 2009, s 61 – MEANING AND EFFECT - where applicants allege the Tribunal erred in exercising discretion to waive compliance with procedural requirement that claim must be started by the litigation guardian - where applicants allege prejudice and detriment that is not remedied by appropriate order for costs or damages

Queensland Civil and Administrative Tribunal Act 2009

Uniform Civil Procedure Rules 1999

REASONS FOR DECISION

1. The applicants Mr Prapruek Charoentanakorn and Ms Cindy Norman are the owners of a restaurant at Cleveland.

1. Mr David Bain is minor at seventeen years of age. His father Daniel James Bain is his litigation guardian.

1. On 7 January 2010, a QCAT adjudicator ordered that Mr Charoentanakorn and Ms Norman pay David Bain (by way of Daniel Bain) a sum of $504.50 for work David performed at the applicants’ request creating a website for the restaurant.

1. On 4 March 2010, Mr Charoentanakorn and Ms Norman applied for leave to appeal that decision. Leave is necessary: Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), s 142 (3)(a)(i).

1. They assert that: (i) David Bain as a minor did not have legal standing to initiate the claim; (ii) that the adjudicator erred in waiving compliance with a procedural requirement touching David’s minority; (iii) that procedural requirements were breached because Ms Norman did not receive the Notice of the Hearing of the Minor Debt Claim; and (iv) that the adjudicator’s decision was unreasonable as the claim was based on ‘hurt feelings’ rather than on merit.

1. As the learned adjudicator correctly observed in his decision, a civil proceeding involving a minor less than 18 years of age must be started by a litigation guardian: Uniform Civil Procedure Rules 1999 (UCPR), rule 93. However, the Tribunal has the power to waive compliance with procedural requirements under the QCAT Act, enabling Acts or the Rules: QCAT Act, s 61(1)(c).

1. That provision is not dissimilar to the UCPR rule which says that a failure to comply with the rules is only an irregularity, and does not render a proceeding, or document, a nullity: UCPR, r 371(1). The UCPR rule serves the important purpose of ensuring that civil proceedings are not bound up by undue technicality: Stone v ACE-IRM Insurance Broking Pty Ltd [2004] 1 Qd R 173. That principle sits comfortably with one of the objects of the QCAT Act: that proceedings are dealt with in a way that is accessible, fair, just, economical, informal and quick[1].

   [1]Queensland Civil and Administrative Tribunal Act 2009, s 3(b)

1. Although the original claim was initiated in David’s name, Daniel filed a consent to be his litigation guardian on 25 September 2009, and this was confirmed by David at the hearing. The consent gave David the necessary legal standing to pursue the claim. No prejudice or detriment was caused to the applicants.  Plainly this was a case where the initial procedural defect was cured before the hearing, in circumstances which entirely justified the learned adjudicator’s decision to excuse it.

1. Copies of the Notice for Hearing were sent from the Magistrate’s Court to all parties on 13 November 2009. In their letter dated 7 January 2010, signed by Mr Charoentanakorn and Ms Norman, the applicants acknowledge that they were aware of the hearing on that day, but advised that they would not to be attending.  That was their choice; plainly, however, there is no substance to their complaint alleging a want of notice.

1. Their final submission is that the decision itself was unreasonable because the claim lacked merit. The applicants, with full knowledge of the hearing, deliberately chose not to attend and adduce any evidence to contradict the claim. The learned adjudicator acknowledged receipt of correspondence from them but found – unsurprisingly – that it did not establish that they had grounds to resist the claim.  The decision itself entirely accords with the weight of the evidence (which, the transcript shows, was carefully explored by the adjudicator).  The learned adjudicator’s reasons, while short, are clear and logical and, again, entirely consonant with the evidence.

1. None of the applicants’ complaints are made out.  There is no question of importance about which further argument is desirable or in respect of which a decision of the Appeal Tribunal would be of public benefit.[2] Leave to appeal is, then, refused.   

   [2] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388; McIver Bulk Liquid Haulage

   Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577