Fletchett v Coutts Redington Pty Ltd - [2013] QCATA 111

CITATION:

Fletchett v Coutts Redington Pty Ltd [2013] QCATA 111

PARTIES:	Ian Fletchett (Applicant/Appellant)
v
Coutts Redington Pty Ltd t/as Coutts Redington (Respondent)

APPLICATION NUMBER:

APL220-12

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Alan Wilson, President

DELIVERED ON:

16 April 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

Application for leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where the applicant engaged the respondent to undertake accounting and taxation work – where the parties entered into a signed agreement with a payment plan – where the applicant failed to make payments – where the respondent brought proceedings in the Tribunal – where the matter was referred to mediation – where the mediation was unsuccessful and the matter was listed for a hearing – where the applicant failed to attend the hearing – where the Magistrate gave judgment for the respondent – where the applicant seeks to appeal that decision – whether leave to appeal should be granted

PRACTICE AND PROCEDURE – MEDIATION – where the parties are required to participate in the mediation process – where the Tribunal may dismiss or strike out proceedings where a party fails to attend mediation without reasonable excuse – where the mediation certificate stated the Mediator was unable to maintain contact with the respondent – where there is no evidence of non-attendance – whether the applicant was unnecessarily disadvantaged

Queensland Civil and Administrative Tribunal Act 2009, s 48(1)(g), 48(2), s 48(4), s 75, s 102
Queensland Civil and Administrative Tribunal Rules 2009, r 71(a)

B Publishing Pty Ltd v Azure International Discretionary Trust [2011] QCATA 23, cited

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

Coutts Redington Pty Ltd is a firm of chartered accountants in North Queensland. It undertook accounting and taxation work for Mr Fletchett for which, as he admits, he still owes fees. The accountants commenced a proceeding against him in the Minor Civil Disputes jurisdiction of the Queensland Civil and Administrative Tribunal (‘the Tribunal’) for $9,011.51, of which $8,024.50 was alleged to be outstanding fees and $702.51 was interest.
Mr Fletchett filed a response to the claim asking that it be held in abeyance because the parties had entered into a signed agreement incorporating a payment plan – and, presumably, so that Mr Fletchett could continue to make payments.
The minor civil dispute was referred to mediation which, according to the Mediator’s certificate, was unsuccessful because the Mediator was ‘unable to maintain contact with [Coutts Redington]’.
After the failed mediation, a Court officer, acting on the Tribunal’s behalf, contacted a representative of Coutts Redington who asked that the matter be listed for a hearing.
On 21 May 2012 notices were sent to both parties advising them that the hearing was listed for 4 June 2012. Mr Fletchett sent an email to the courthouse on that day, about an hour before the hearing was scheduled to start, advising that he was working out of town and could not attend. In his email he admitted that he was behind in payments to Coutts Redington under the payment plan. According to the Tribunal file, arrangements were made for him to appear at the hearing by phone at 2:15 pm.
When the hearing began before a Magistrate (sitting as a QCAT Member) Mr Fletchett did not appear. Nor, despite the Magistrate standing the matter down so that he could telephone and attend the hearing remotely, did he actually phone in.
The matter proceeded before the learned Magistrate in his absence. Mr Coutts gave evidence on oath and, ultimately, the learned Magistrate gave judgment for Coutts Redington in the total amount of $7,073.01, inclusive of interest and costs.
The transcript of the hearing shows that the learned Magistrate was careful to ensure that Mr Coutts established all elements of the claim, and verified the figures he advanced.
Mr Fletchett seeks leave to appeal the decision. His first ground of appeal is that Coutts Redington refused or failed to attend the mediation, and that failure denied him ‘due process’ because, had they attended the mediation, ‘an official agreement could have been entered into for the remaining amount and a hearing would not have been required’.
His second ground is that he received very late notice of the hearing (on the Friday immediately before the Monday on which it was listed). He acknowledges that after he emailed the courthouse he was telephoned and it was suggested that he might appear by telephone but he says he ‘did not have access to a fixed line telephone and mobile reception is so poor that this was simply not an option at that time’.
As to the first ground, mediation had been ordered under s 75 of the QCAT Act. The notice to the parties informing them of the mediation stipulates that both parties are required to ‘participate in the mediation session’. The Mediator’s certificate does not, however, support Mr Fletchett’s claim that Coutts Redington simply refused to attend the mediation. Rather, as noted earlier, it suggests some person from Coutts Redington’s office attended by telephone but contact could not, for whatever reason, be maintained.
The QCAT Act provides that where ‘a party to a proceeding is acting in a way that unnecessarily disadvantages another party’ by ‘failing to attend mediation… without reasonable excuse’, the Tribunal may order the proceeding be dismissed or struck out.[1] The Tribunal may also make an order pursuant to s 102 of the QCAT Act against the party causing the disadvantage, to compensate the other party for any reasonable costs incurred unnecessarily.[2] These sanctions are consistent with r 71(a) of the Queensland Civil and Administrative Tribunal Rules 2009 which requires parties to a proceeding to act genuinely and reasonably in a mediation.
[1]QCAT Act ss 48(1)(g), (2)(a).
[2]Ibid s 48(2)(c).
In B Publishing Pty Ltd v Azure International Discretionary Trust[3], a representative of the applicant failed to attend the scheduled mediation because they were travelling overseas at the time. No explanation was provided as to why the representative was not able to attend by telephone; or, why another person could not appear for the applicant. It was held that the failure to attend without a reasonable excuse led to the reasonable exercise of the powers contained in s 48(2) of the QCAT Act.[4]
[3][2011] QCATA 23.
[4]Ibid [15].
Mr Fletchett’s contentions about Coutts Redington’s alleged failure to attend the mediation confront both practical and legal difficulties.
First, the Mediator’s certificate does not support his allegation that Coutts Redington actually refused or failed to attend. The mediation certificate (QCAT Form 48) has a section in which the Mediator can signify if a party did not attend. That section was not completed by the Mediator; rather, he inserted the words mentioned earlier which suggest, not actual non-attendance but, rather, some communication difficulties.
Secondly, there is no compelling reason for concluding that Mr Fletchett was unnecessarily disadvantaged by Coutts Redington’s failure to attend the mediation. In his submissions, Mr Fletchett does not provide a persuasive reason why mediation would have led to an ‘official agreement’, avoiding the need for a hearing. The outcome of the mediation was always unpredictable, and there is no evidence to suggest it would necessarily have produced that outcome.
Thirdly, the Tribunal may act under s 48(2) of the QCAT Act on the application of a party to the proceeding or on the Tribunal’s own initiative.[5] Mr Fletchett did not seek any relief under that provision before the Magistrate, or otherwise. Nor, in light of the contents of the Mediator’s certificate, was there anything in the matter that would have prompted QCAT itself to take action.
[5]QCAT Act s 48(4).
Mr Fletchett’s second ground – his failure to attend – is also bound to fail. It is not clear why he did not receive the notice until the last working day before the hearing itself, because the Tribunal’s own records establish it was sent to him some time, considerably earlier. In his submissions he says only that he received the notice, for a hearing on 4 June, on Friday 1 June – but not how or why that occurred.
Secondly, he apparently waited until about an hour before the hearing was scheduled to start before attempting to contact the presiding Member or the courthouse and, as he acknowledges, he was able to receive a telephone communication suggesting that he attend the hearing itself, by telephone. In light of those communications, his claim that he was not able to appear either by fixed landline or mobile telephone can only be described, with respect, as dubious.
There is, otherwise, nothing to suggest the learned Magistrate could not properly proceed with the hearing. All of the formalities necessary to permit that had, it appears, been observed.
Neither of these grounds is sufficient, then, to attract a grant of leave to appeal.
In his submissions Mr Fletchett also complains that the amount calculated and awarded by the learned Magistrate was wrong. As noted earlier, the Magistrate heard sworn evidence from Mr Coutts and took care to check the figures advanced by that witness. No error in the calculations, or the learned Magistrates decision, is apparent.
Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?
There is not, in this matter, any reasonably arguable case of error in the primary decision; and, nothing in the matter suggestions a question of general importance.
For these reasons, leave to appeal must be refused.