Clough v Mejia
[2022] QCATA 122
•9 August 2022
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Clough & Anor v Mejia & Anor [2022] QCATA 122
PARTIES:
KAREN CLOUGH
ANDREW CLOUGH(appellants)
v
GUSTAVO MEJIA
GABRIELLE QUINN(respondents)
APPLICATION NO/S:
APL012-22
ORIGINATING APPLICATION NO/S:
MCDO 1069/21
MATTER TYPE:
Appeals
DELIVERED ON:
9 August 2022
HEARING DATE:
On the papers
HEARD AT:
On the papers
DECISION OF:
Member PG Stilgoe OAM
ORDERS:
1. Leave to appeal is granted.
2. The appeal is allowed.
3. The tribunal’s decision dated 24 November 2021 to grant Gabrielle Quinn and Gustavo Mejia leave to be represented by John Quinn is set aside.
4. The application for leave to be represented is returned to the tribunal for a decision.
5. The matter is to be listed for a compulsory conference before Member Howe in Brisbane at 9:15am on 14 December 2022.
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – leave to appeal – minor civil dispute – breach of procedural fairness – where respondents were granted leave to be represented by the tribunal – where respondents did not serve their application for leave to be represented on the appellant – where the tribunal made a decision before the application could be served and a response filed
Queensland Civil and Administrative Tribunal Act 2009, s 142(3), s 32
Pickering v McArthur [2005] QCA 294
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
On 22 November 2021, Gustavo Mejia and Gabrielle Quinn (the respondents) made an application for leave to be represented by John Quinn, Ms Quinn’s father.
On 24 November 2021, the tribunal granted the respondents leave to be represented. On 25 November, the parties attended a compulsory mediation where John Quinn represented the respondents. Karen and Andrew Clough, the appellants in this matter, appeared without representation.
The Cloughs wants to appeal the decision to give leave for representation. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]
[1]Queensland Civil and Administrative TribunalAct s 142(3)(a)(i).
[2]Pickering v McArthur [2005] QCA 294 at [3].
The Cloughs claim they were denied procedural fairness. They say that the respondents failed to serve the application for leave to be represented (Form 56) on them.
In the respondent’s Form 56, the respondents checked the box stating:
‘I understand that I must give a stamped copy of this application to each other parties before the Tribunal can make a decision’.
The file shows that the respondents did not serve the Form 56. They explain that they believed the need to serve the application was superseded by the Clough’s willingness to proceed with the mediation with Mr Quinn representing the respondent. Because it was a mediation, I do not have details of the Cloughs’ agreement to proceed on that date. However, it is likely that they were not aware of the order giving leave for representation, had not turned their minds to the question and were minded to proceed with the mediation on that basis. This appeal demonstrates that their agreement to proceed on that day, even though the respondents were represented, should not be construed as general consent for the respondents to be represented for the whole of the proceeding.
Regardless of whether the respondents held the belief, the fact is that the respondents were required to serve the Form 56 on the Cloughs within 7 days of filing it. They did not do this. Consequently, the Cloughs did not have an opportunity to make submissions regarding the application for leave to be represented. In considering the application, the tribunal had before it, and could only consider, the submissions from the respondents. This is a failure to provide procedural fairness, which is an error for which leave may be granted.
The respondents’ application for leave to be represented was filed on 22 November. The tribunal granted leave two days later, on 24 November. The tribunal’s decision was made before the end of the 7-day period in which the respondents had to serve the Form 56 and before the Cloughs could file any material in response. Again, the Cloughs were denied procedural fairness.
For these reasons, leave to appeal is granted and the appeal is allowed.
Given my orders, it is not necessary to consider the Cloughs’ submissions about leave; that is a matter for the tribunal. They also filed an or the application for fresh evidence. Again, that is a matter for the tribunal to consider.
Orders
Leave to appeal is granted.
The appeal is allowed.
The tribunal’s decision dated 24 November 2021 to grant Gabrielle Quinn and Gustavo Mejia leave to be represented by John Quinn is set aside.
The application for leave to be represented is returned to the tribunal for a decision.
The matter is to be listed for a compulsory conference before Member Howe in Brisbane at 9:15am on 14 December 2022.
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