Davis v Central SEQ Distribution Retailer Authority t/as Urban Utilities
[2023] QCATA 62
•24 May 2023
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Davis v Central SEQ Distribution Retailer Authority t/as Urban Utilities [2023] QCATA 62
PARTIES:
DESMOND KEITH DAVIS (appellant)
v
CENTRAL SEQ DISTRIBUTION RETAILER AUTHORITY T/AS URBAN UTILITIES (respondent)
APPLICATION NO/S:
APL032-22
ORIGINATING APPLICATION NO/S:
MCDO 620/21
MATTER TYPE:
Appeals
DELIVERED ON:
24 May 2023
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member WA Isdale
ORDERS:
Application for leave to appeal is dismissed.
CATCHWORDS:
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the Tribunal found in favour of the respondent in absentia – where the respondent was a public utility entity – where the appellant seeks leave to appeal the decision because the respondent was not present to answer questions crucial to the claim – whether an appeal is necessary to correct a substantial injustice – whether absentia is a ground for leave to appeal
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142
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
This is an application for leave to appeal against the decision of an adjudicator. The decision is one characterised in the Queensland Civil and Administrative Tribunal Act 2009 as a minor civil dispute. Section 142(3)(a)(i) provides that such an appeal requires leave of the Tribunal.
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.[1]
[1]Pickering v McArthur [2005] QCA 294 at [3].
The application presently before the Tribunal sets out the grounds of appeal in the following way:
In the supporting documentation produced by Urban Utilities to reject my claim, there was erroneous invoicing documentation.
Prior to the meeting, I was contacted and told that the meeting on the 5th January 2022 was to be by phone hook up, so I assumed that Urban Utilities would be available either in the meeting room or on the phone.
I attended the meeting in person as I had two questions to ask Urban Utilities. My questions were crucial to my claim. Whilst I was in the meeting room there was no attempt made to contact Urban Utilities. As Urban Utilities were not present, there was no one to answer my questions. Hence, I was denied a right to pursue my claim against them.
Hence, I am lodging this appeal against the decision made on the 5/01/22 and ask for the case to be reopened.
The written submissions provided by the applicant in support of the application focus on two arguments; first, that the respondent did not attend the hearing, depriving the applicant of an opportunity to question it. Secondly, that there were errors in the respondent’s accounting.
In order to properly understand these submissions, it is useful to refer to the transcript of the hearing. It records that it commenced at 2:13pm on 5 January 2022 and continued until 2:39pm. The adjudicator gave an ex tempore decision, which is recorded in the transcript.
The applicant attended in person and the respondent, having indicated that it would be attending by telephone, failed to do so.[2] The transcript records that the adjudicator stated that “four of five attempts” were made between 2pm and 2:20pm to contact the respondent. The calls were not answered.[3] The adjudicator decided to proceed in the absence of the respondent. Such a course was open to the adjudicator and the transcript does not record any objection to it by the applicant at that time. The applicant’s submissions state that while he was in the hearing room, which he refers to as a meeting room, no contact was attempted to be made with the respondent. However, the statements in the transcript to the contrary are preferred to the applicant’s recollection and understanding of the process because the adjudicator’s statement confirming the attempts was not contradicted at the time. Also, it would be usual for such attempts to be made before the commencement of the hearing, which was 13 minutes after the 2pm time referred to. There is not necessarily any actual conflict in the evidence on this point.
[2] T1-2, 1-6 and T1-7, 20-25.
[3] T1-7, 20-23.
The applicant’s submissions state that his conclusion from his understanding of the circumstances is that the adjudicator, referred to by him as the “moderator”, had pre-judged the case, and therefore exempted the respondent from attending.
The language used in the submissions tends to erroneously portray the process. There was no meeting, moderator or exempting of the respondent from attending. There was a hearing that the respondent failed, for whatever reason, to attend. Due to that default, the hearing continued without the respondent. This typically is to the disadvantage of a respondent.
The transcript does not indicate any pre-judgment of the claim before the adjudicator who was, if anything, proceeding in a manner that was more likely to disadvantage the respondent than the applicant. In the event, the applicant was not successful, for the reasons given by the adjudicator.[4]
[4] T1-7, 10 and T1-8, 5.
The respondent has not made any complaint. In fact, it has not provided any useful submissions in the present application. It has deprived itself of the opportunity to be heard in this matter and deprived this Tribunal of whatever assistance it might have been able to give.
The applicant’s submissions concerning the failure of the respondent to appear at the hearing, depriving him of the opportunity to ask questions of it, does not provide an actionable basis for leave to appeal. It is not part of the QCAT process that the hearing is an inquisition to which the respondent must submit. Therefore, the application cannot succeed on this ground. The applicant was not denied the right to a hearing; he was heard and was unsuccessful.
The second line of argument in the applicant’s written submissions, whereby the respondent’s accounting is criticised, is subject to the same defect. The submissions illustrate this well where they state: “I am now asking through QCAT can UU please explain how they compensated me for the incorrect invoicing on bill 11 without lying”.
This is a request that this Tribunal has no power to grant. The want of an answer satisfactory to the applicant does not constitute a basis for the grant of leave to appeal.
For the reasons that have been given, this is not a case in which leave to appeal is able to be granted.
Order
Application for leave to appeal is dismissed.
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