Chau v Scott

[2011] QCATA 59

CITATION: Chau v Scott [2011] QCATA 59

PARTIES:	Mei Fat Chau (Applicant/Appellant)
v
Thomas Scott (Respondent)

APPLICATION NUMBER:            APL360-10

MATTER TYPE: Appeals

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: Richard Oliver, Senior Member

DELIVERED ON:   22 March 2011

DELIVERED AT:   Brisbane

ORDERS MADE:       Leave to appeal is refused.

CATCHWORDS:

Minor civil dispute – where issues in dispute decided in earlier proceeding – doctrine of res judicata applied – law – fact

Queensland Civil and Administrative Tribunal Act 2009

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. In his application for minor civil dispute – consumer dispute, Mr Chau claims $4,167 as a refund for the supply, delivery and installation of a green glass panel together with the cost of rectification of a door frame and balustrade from the respondent trading as Scott Stairs and Doors.  The application was filed subsequent to a determination in minor civil dispute 0012/10 in which the Tribunal made an order that Mr Chau pay to Mr Scott the sum of $2,730.  That decision was made on 20 April 2010.

1. In that earlier proceeding, Mr Scott sought recovery of monies due in respect of the work the subject of Mr Chau’s current application.  The earlier order was made in default of Mr Chau’s appearance at the hearing scheduled for 20 April 2010.

1. Mr Chau then applied to reopen that proceeding (claim 0127/10) on 29 April 2010 but that application was refused. 

1. Then, on 27 September 2010 Mr Chau filed his application, the subject of this application for leave to appeal making a claim in respect of the same matters which were the subject of his defence and counterclaim in proceeding 0127/10.  In response to that application Mr Scott filed an application on 19 October 2010 to have Mr Chau’s application dismissed on the grounds that the subject matter of the current proceeding has already been dealt with in application 0127/10.  This history of these two matters would indicate that is so.  The application to strike out relies on, inter alia, the following ground:

“As the issues in this present claim have already been dealt with, this claim is frivolous, vexatious, misconceived and an abuse of process and should be struck out pursuant to section 47 of the Queensland Civil and Administrative Tribunal Act 2009.”

1. That application was considered by a Tribunal Adjudicator on 1 December 2010 and she came to the view that, having dealt with claim 127/2010 herself, the subject matter of Mr Chau’s new claim was in fact part of the same facts and circumstances that were considered in claim 0127/10.  And she said:

“I note also, that the circumstances and facts relate to the same balustrading – the same issues – and this is an attempt by him to try and counter claim against a previous order that was made.  I am satisfied that the matters which are raised by you as an objection that you say the application should be struck out based on the fact that this claim relates, specifically, to the same set of facts and circumstances in relation to the previous claim of 127/2010 which was heard on another date and determined…. I find that the claim is in relation to the balustrading which was installed by the respondent in this case.  This evidence should have been put to the Tribunal in response or in defence to your initial claim and the matters could have been heard together.  I also note that – whilst Mr Chau did not turn up to the first hearing and the decision was made in his absence, he was served with the notice and that it was taken to be considered at the time that he was given notice of the mediation and he had received a copy of the claim and yet he didn’t appear.”

1. Included in the material before the learned Adjudicator was the response by Mr Chau contained in the letter of 12 February 2010 where he sets out his complaints about Mr Scott’s failure to install the glass the subject matter of proceeding 2922/10.  There is also a complaint about his workmanship giving rise to the claim for rectification.

1. In making the order in default of Mr Chau’s appearance in 0127/10 it is implicit that any claim that Mr Chau had against Mr Scott, the counterclaim, was also dismissed. 

1. Therefore, it seems that the reasoning of the learned Adjudicator as set out in the transcript accords with the factual background of both minor civil dispute proceedings.

1. It is from the decision of the learned Adjudicator 1 December 2010 that Mr Chau now seeks leave to appeal.  His application filed on 14 December 2010 sets out grounds which firstly, were those relied upon in setting aside the default decision in 0127/10 and secondly that the judgement sum was paid under protest.

1. What Mr Chau wants is an opportunity to now litigate the same counter claim as that which was in the original proceeding brought by Mr Scott. 

1. The standard form Notice of Hearing issued by the registry warns parties of the failure to attend a hearing at the nominated time. The QCAT Act specifically makes provision for proceeding in a party’s absence.[1]  If a order is made in a party’s absence, there is provision for reopening provided the applicant can satisfy the Tribunal that it had a reasonable excuse for not attending the hearing or that the party would suffer a substantial injustice.[2]  In considering whether to reopen, the Tribunal is obliged to consider the written submissions of the parties. 

[1]           Section 93.

[2] QCAT Act Section 137.

1. Unfortunately for Mr Chau, he failed to attend the original hearing, applied for a reopening which was refused and he has now sought to re litigate his original counter claim by commencing fresh proceedings.  Because the subject matter of the new proceeding was the same as the original proceeding the learned Adjudicator dismissed his application on a summary basis on the respondent’s application.

1. The applicant requires the leave of the Tribunal to appeal[3].  The question then for the appeal Tribunal is whether the decision of the Adjudicator, in dismissing Mr Chau’s application, is fraught with error.  It has been a long standing principle of civil litigation that finality is highly desirable because any further action beyond the hearing can be costly and unnecessarily burdensome on both parties[4].  In addition to that general principle, once a court, or Tribunal, makes a decision, the parties cannot resurrect the old issues in new litigation.  The danger is that different findings may be made on substantially the same dispute.  To prevent this occurring, the law has evolved the doctrine of res judicata.  When a cause of action or an issue in a cause of action is decided between parties the ruling binds them.  The same cause of action or issue can not be raised again in later proceedings[5].

[3] QCAT Act Section 142(3).

[4]           Fox v Percy (2003) ACA 22 at (29).

[5]Blair v Curren (1939) 62 CLR 464 and Australian Civil Procedure, Cairns, 8^thed. Para 6.130.

1. The learned Adjudicator gave quite specific reasons for dismissing Mr Chau’s application and those reasons are consistent with good practice and legal principle.

1. No error has been identified nor is any demonstrated from a perusal of the material and learned Adjudicator’s reasons.  Therefore, leave to appeal is refused.