Hanley v Cotter

[2011] QCATA 321

CITATION: Hanley v Cotter [2011] QCATA 321

PARTIES:	Paul Anthony Hanley (Applicant/Appellant)
v
David George Cotter (Respondent)

APPLICATION NUMBER:   APL353-11

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON: 23 November 2011

DELIVERED AT: Brisbane

ORDERS MADE:     Leave to appeal refused.

CATCHWORDS: 

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – COST OF REPAIR WORK – Where respondent brought proceedings claiming the cost of repair work associated with a swimming pool – Where applicant failed to appear at hearing – Where Magistrate made an order that the applicant pay the respondent the amount claimed – Where the applicant seeks leave to appeal the decision on grounds that the problem work is unrelated to the applicant – Whether grounds for leave to appeal – Whether leave to appeal should be granted

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 applied

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. Mr Cotter brought proceedings against Mr Hanley in QCAT’s Minor Civil Disputes jurisdiction claiming $4,700 for the repair cost of work associated with a swimming pool.

2. The parties attended a mediation and it was thought, apparently, that an agreement had been reached but, later, Mr Cotter asked for the matter to be listed for hearing.

3. The parties were advised that the hearing would occur before a Magistrate, sitting as a QCAT Member, at the Courthouse at Maryborough on 26 August 2011.  Mr Hanley did not appear at that hearing.  Mr Cotter did appear and the learned Magistrate, after taking evidence from him, made an order that Mr Hanley pay Mr Cotter $4,792 (including the filing fee of $92).

4. Mr Hanley now seeks leave to appeal that decision.  In his application for leave he says Mr Cotter’s complaint has already been dealt with through the Building Services Authority and any present problems with paving around Mr Cotter’s pool are not related to him, or the work he performed. 

5. He attaches, to his application for leave, correspondence between him and the Authority in which he was directed by the BSA to perform certain works.  That direction was contained in a letter of 20 September 2010 from the BSA to Mr Hanley.  He also produces a BSA Inspection Form prior to that date, but it is not at all clear that he has ever performed the work which was the subject of the direction.

1. In any event before his appeal can proceed, he must obtain leave.  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?

1. It is unclear why Mr Hanley did not appear at the hearing before the Magistrate on 26 August.  He does not claim that he did not receive notice of it. 

2. Inherent in the QCAT Act is the principle that parties must act properly, in their own best interests. Parties are under a general obligation to act quickly: s 45; the Tribunal has wide powers to, for example, strike out proceedings if a party acts in ways that unnecessarily disadvantages another party – e.g. by not complying with the Tribunal’s orders or directions, or failing to attend mediation or a hearing without a reasonable excuse: s 48(1)(g).

3. QCAT’s resources for the resolution of disputes serve, as the High Court has recently observed, the public as a whole and not merely the parties to proceedings[1].  Inherent in this public policy aspect of the provision of dispute resolution services is the expectation that parties will avail themselves, effectively and with reasonable efficiency, of those services; and will not, as appears to be the case here, fail to act to defend and protect their own perceived interests but, rather, attempt to use the appeal process as a belated remedy.

   [1]Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 217.

[10]  It is also material that, in circumstances where a party has not received proper notice of a hearing or has a reasonable excuse for not attending, a re-opening may be sought under s 137.  Again, nothing in Mr Hanley’s material suggests that he has any entitlement to relief of that kind.

[11]  His application for leave to appeal does not raise any of the accepted grounds which would warrant an order in his favour.  There is nothing to suggest that the evidence he now wishes to present to the Appeal Tribunal was not available to him at the time the matter was listed for a hearing before the Magistrate and, therefore, no basis for concluding that he should have leave to adduce that further evidence.  In any event, nothing in that material is persuasive that he had a good defence to Mr Cotter’s claim.

[12]  In the circumstances the application for leave to appeal must be refused.