Hakkarainen v Choice Homes (Qld) Pty Ltd
[2010] QCAT 299
•30 June 2010
| CITATION: | Hakkarainen v Choice Homes (Qld) Pty Ltd [2010] QCAT 299 |
| PARTIES: | Mr & Mrs Tapio & Irja Hakkarainen |
| v | |
| Choice Homes (Qld) Pty Ltd |
| APPLICATION NUMBER: | BD467-09 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | Decision on the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe |
| DELIVERED ON: | 30 June 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The application filed on 2 November 2009 is dismissed. |
| CATCHWORDS : | Application to dismiss application on grounds of non-compliance – where directions made – where parties attended compulsory conference and directions hearing – where respondent alleges history of non-compliance – procedural fairness – ss 3, 4, 28 and 29 of QCAT Act |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers in accordance with section 32 of the
Queensland Civil and Administrative Tribunal Act 2009
REASONS FOR DECISION
On 2 November 2009 Mr & Mrs Hakkarainen (“Hakkarainen”) filed an application for rectification of the driveway and a stormwater issue in a home recently constructed by Choice Homes (Qld) Pty Ltd (“Choice”).
The parties attended a compulsory conference on 18 March 2010 and agreement was reached. Hakkarainen failed or refused to carry out essential terms of that agreement so, on 7 May 2010, the tribunal made directions for the hearing of the proceeding. Hakkarainen has not complied with the first of these diections, namely to file and serve their witness statements by 28 May 2010.
On 17 June 2010, Choice brought an application to dismiss Hakkarainen’s claim on the grounds of their non-compliance with the tribunal’s direction.
On 18 June 2010, the tribunal received a facsimile from Hakkarainen. Relevantly, it states “I will present all proof paperwork on 13-7-210 (sic)”
The Queensland Civil and Administrative Tribunal Act (“QCAT Act”) imposes obligations on the tribunal to ensure procedural fairness:
a)Section 3(b) requires the tribunal to deal with matters in a way that is accessible, fair, just economical and quick;
b)Section 4(c) requires the tribunal to ensure proceedings are conducted in as quick a way as is consistent with achieving justice.
c)Section 28(3)(a) requires the tribunal to observe the rules of natural justice, section 28(b) states that tribunal is not bound by the rules of evidence and section 28(3)(e) requires it to ensure, so far as is practicable, that all relevant material is disclosed to the tribunal.
d)Section 29 of the QCAT Act imposes an obligation on the tribunal to take all reasonable steps to ensure that each party understands the practices and procedures of the tribunal, the nature of the assertions made in the proceedings and any decision of the tribunal.
The QCAT Act intends that parties conduct their own proceedings. For that reason, no member expects a self-represented party to present a case in the same way as would be expected from a member of the legal profession. However, there are limits to the indulgences the tribunal is prepared to grant.
The parties attended both a compulsory conference and a directions hearing. I am satisfied, therefore, that the tribunal has taken reasonable steps to ensure that Hakkarainen understood what was required of them to comply with the directions of 7 May 2010 and that, so far as was practicable, it ensured that all relevant material was disclosed.
Hakkarainen have confirmed that they do have documents to present ot the tribunal. The principles of procedural fairness are not met if Choice is not given an opportunity to consider, and respond to, these document prior to the hearing.
The tribunal’s mandate to conduct proceedings informally does not mean that a party should not file and serve material which is in its possessoin and on which it intends to rely.
10. An enconomical and quick hearing will not be achieved if the tribunal grants Hakkarainen another opportunity to file material when there is evidence of Hakkarainens’ non-compliance with previous directions/agreements and no explanation from Hakkarainen as to why they failed to comply with the direction of 7 May 2010.
11. Hakkarainen may well consider that a decision to strike out their claim does not achieve justice. The means of ensuring that the tribunal could make a decision on the issues in the proceeding were in their hands and they failed to take the opportunity. Further, the QCAT Act allows the door to be reopened in limited circumstances.
12. I direct that the Hakkarainens’ application filed 2 November 2009 be dismissed.
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