Dulley trading as Bruce Dulley Family Lawyers v Archibald & Brown Lawyers Pty Ltd
[2013] QCATA 320
•8 November 2013
| CITATION: | Dulley trading as Bruce Dulley Family Lawyers v Archibald & Brown Lawyers Pty Ltd [2013] QCATA 320 |
| PARTIES: | Bruce Sandford Dulley trading as Bruce Dulley Family Lawyers (Appellant) |
| v | |
| Archibald & Brown Lawyers Pty Ltd ACN 132 246 639 (Respondent) |
| APPLICATION NUMBER: | APL142-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe OAM Member Deane |
| DELIVERED ON: | 8 November 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Application for leave to appeal is refused. 2. Application for a stay of the Tribunal decision of 8 March 2013 is dismissed. 3. The Respondent’s application for costs is dismissed. |
| CATCHWORDS: | APPEALS – MINOR CIVIL DISPUTES- dispute as to unpaid invoices for legal services – where it is alleged that claims were compromised prior to hearing – leave to appeal required Lida Build Pty Ltd v Miller and Anor [2011] QCATA 219 Queensland Civil and Administrative Tribunal Act 2009 ss 93, 100, 102, 138, 142, 145 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
This is a dispute between solicitors’ firms in relation to unpaid invoices for services rendered to the other. Mr Dulley claimed $1,766 plus filing fee and interest[1] and Archibald & Brown claimed $1,283.70 plus filing and service fees[2]. Both claims were set down for hearing on 8 March 2013. Mr Dulley contends that the matters had been compromised by Archibald & Brown by letter dated 15 February 2013 and he consequently did not appear before the Tribunal. The Tribunal proceeded in his absence, dismissed Mr Dulley’s claim for lack of evidence, accepted the claimant’s evidence in the other matter and awarded Archibald & Brown the sum of $1420.70.[3]
[1] MCD3223-12.
[2] MCD3085-12.
[3] $1,283.70 for claim, $98 for filing fee and $39 for service fee.
Mr Dulley seeks leave to appeal and to appeal both decisions.[4] By direction dated 23 May 2013 both appeals were consolidated. He also seeks a stay in respect of the order for payment of moneys.
[4] APL142-13 and APL 143-13.
Leave to appeal is required.[5] An appeal does not affect the operation of the decision.[6] The Tribunal may stay the operation of a decision appealed until the appeal is finally decided.[7]
[5] QCAT Act s 142(3)(a)(i).
[6] QCAT Act s 145(1).
[7] QCAT Act s 145(2).
There are well established principles as to when leave should be granted.[8] Is there a reasonably arguable case of error in the decision? Is there a reasonable prospect that the applicant will obtain substantive relief? Is leave necessary to correct a substantial injustice to the applicant caused by some error? Is there a question of general importance upon which further argument and a decision the Appeal Tribunal would be to the public advantage?
[8] Lida Build Pty Ltd v Miller and Anor [2011] QCATA 219.
The claims involved small amounts owing for legal services rendered to a solicitors’ firm. There is also the contention that the claims were compromised. Neither of these matters in themselves involves a matter of general importance.
Mr Dulley contends that the decisions were in error because both claims had been compromised and the Tribunal erred in not considering the correspondence of Archibald & Brown of 15 February 2013. It is claimed that Mr Venville who appeared on behalf of Archibald & Brown misled the Tribunal as irrelevant matters were drawn to the Tribunal’s attention and because he failed to draw to the Tribunal’s attention the claimed compromise.
Having regard to the evidence before the Adjudicator set out in the transcript provided to this Appeal Tribunal it can be seen that the Adjudicator stated that he had been reading the files, Mr Venville applied for and was given leave to read and file an affidavit sworn the previous day which exhibited the letters of 15 February 2013 to Mr Dulley and the Tribunal and Mr Venville specifically referred the Tribunal to the correspondence of 15 February.
There is no evidence to suggest that the irrelevant matters were factors relied upon by the Tribunal nor that the Tribunal failed to take the correspondence of 15 February 2013, which was specifically drawn to its attention, into account in making its decisions.
Mr Dulley contends that on the ordinary reading of the correspondence of 15 February 2013 it was clear that both proceedings had been resolved.
A basic principle of contract law is that acceptance of an offer must be communicated to the offeror before a contract is formed and becomes binding.
There was no evidence before the Tribunal nor is there any evidence before this Appeal Tribunal that Mr Dulley:
a) unequivocally accepted the proposed compromise; or
b) wrote to the Tribunal or Archibald & Brown consenting to the orders proposed by Archibald & Brown in its letter to the Tribunal dated 15 February 2013.
We are not satisfied that Mr Dulley’s letter of 22 February 2013 is evidence of an unequivocal acceptance. In those circumstances we are not satisfied that Mr Venville deliberately misled the Tribunal in failing to inform the Tribunal of the alleged concluded compromise or that this is a matter of general importance.
The Tribunal may hear and decide a matter in a person’s absence.[9] The Tribunal’s records show that Notices of Hearing were sent to the parties by post on 28 February 2013. There is no evidence that Mr Dulley did not receive the Notice of Hearing. The circumstances may have founded grounds to apply to re-open the decisions.[10] Mr Dulley elected to appeal.
[9] QCAT Act s 93.
[10] QCAT Act s 138.
We are not satisfied that there is a demonstrated error of law and therefore there is no basis for leave to appeal. It therefore follows that the application for a stay is also dismissed.
Archibald & Brown have sought costs if successful. The general principle is that each party to a proceeding must bear their own costs.[11] Legal costs are not awarded in minor civil disputes as the Tribunal’s powers to award costs in relation to minor civil disputes are limited to certain expenses prescribed by regulation.[12] We note that no leave to be legally represented was granted.
[11] QCAT Act s 100.
[12] QCAT Act s 102(2).
We are not satisfied that the interests of justice require us to order costs.[13] The application for costs is therefore dismissed.
[13] QCAT Act s 102(1).