Hodson v McFarland - [2014] QCATA 231

CITATION:

Hodson v McFarland & Anor [2014] QCATA 231

PARTIES:	Adrian Hodson (Appellant)
v
Malcolm McFarland and Jane McFarland (Respondents)

APPLICATION NUMBER:

APL092-14

MATTER TYPE:

Appeals

HEARING DATE:

25 August 2014

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes, Member

DELIVERED ON:

25 August 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The hearing of Appeal 092 of 2014 is adjourned to 9.30 am on 10 October 2014, at Brisbane.

2. If the appellant Hodson is unable for good reason to attend the Tribunal in person or by his lawful representative at that time, submissions by or on his behalf shall be made by telephone link.

3. In the event that the Tribunal is unable to contact the appellant or his lawful representative by telephone at the time to which the hearing is adjourned, the appellant’s counterclaim shall be struck out, with no further notice to him.

4. The respondents are at liberty to attend future hearings of this matter by telephone link.

5. The appellant shall file and serve by 4 pm on Tuesday 2 September 2014 an affidavit by Dr Kang-Ten Lim of the Gold Coast Heart Centre based on the contents of the appellant’s email to the Tribunal dated 24 August 2014. The said affidavit must not be in short or summary form, but must deal in detail with the contents of the said email.

6. Upon applying to Dr Lim for his affidavit the appellant shall provide Dr Lim with a true and correct copy of the said email.

7. The appellant shall file and serve an affidavit testifying that he has complied with Order 6.

8. The registrar or his delegate, shall forthwith post to Dr Lim, at the Gold Coast Heart Centre, Allamanda Private Hospital, 21 Spendlove Street, Southport 4215, with an explanatory note, a copy of Orders 5 and 6 above.

9. The appellant shall promptly serve upon the respondents true copies of all future correspondence sent by him to the Tribunal.

CATCHWORDS:

APPEALS – LEAVE TO APPEAL – APPLICATION FOR ADJOURNMENT – where applicant requested oral hearing – where applicant failed to attend – where applicant sent informal email to tribunal advising of non-attendance for medical reasons – where no medical evidence tendered to support application for adjournment – whether rules of natural justice require the grant of adjournment

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 102(2), Schedule 3,
Queensland Civil and Administrative Rules 2009 r 83, r 84, Schedule 3,

Petrovic v Taara Framework (Canberra) Pty Ltd (1982) 62 FLR 451
Raybos Australia Pty Ltd v Techtran Corporation Pty Ltd (1986) 6 NSWLR 674

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Adrian Hodson

RESPONDENT:

Malcolm McFarland and Jane McFarland

REASONS FOR DECISION

This application for leave to appeal was set down for hearing in Brisbane at 9.30 am today.
At the request of the appellant (“Hodson”) an oral hearing was ordered.
At the appointed time, the respondents (“the McFarlands”) attended the Tribunal in person. Hodson did not appear. Hodson now…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] QCATA 231
Decision Date: 25 August 2014

CaseChat Overview and Summary

Hodson brought an appeal against a decision of the tribunal, which dismissed his counterclaim. McFarland opposed the appeal and sought an adjournment of the hearing. McFarland applied for the adjournment on the basis that Hodson had failed to attend a scheduled hearing. McFarland alleged that Hodson had sent an informal email to the tribunal notifying his non-attendance for medical reasons. The tribunal was required to determine whether the rules of natural justice mandated the grant of an adjournment in these circumstances. The tribunal also had to consider the appropriate conditions for any adjournment and the consequences if Hodson was unable to attend.

The tribunal considered that Hodson’s failure to attend without prior notice and his informal email did not satisfy the requirements for an adjournment. The tribunal found that Hodson had not provided any medical evidence to support his application for an adjournment. The tribunal held that the rules of natural justice did not require an adjournment in the absence of any evidence to substantiate Hodson’s claims. The tribunal was also of the view that any adjournment should be subject to strict conditions to prevent future non-attendance. The tribunal decided to adjourn the hearing, but only if Hodson could demonstrate his inability to attend through proper medical evidence.

The tribunal ordered that the hearing be adjourned to a later date, with specific conditions attached. Hodson was required to provide a detailed affidavit from his doctor confirming his inability to attend. The tribunal also ordered that Hodson must serve a copy of his email to his doctor and obtain an affidavit confirming receipt. The tribunal further directed that Hodson must serve any future correspondence with the tribunal on the respondents. The tribunal emphasised that if Hodson was unable to attend the rescheduled hearing, his counterclaim would be struck out.

The tribunal made orders to facilitate the rescheduled hearing and to ensure compliance with the procedural requirements. The tribunal required Hodson to provide a detailed affidavit from his doctor and to serve copies of his email and any future correspondence on the respondents. The tribunal also set out the consequences if Hodson was unable to attend the rescheduled hearing. These orders aimed to ensure that the tribunal could proceed with the hearing in an efficient and fair manner.

Orders

Orders of the court

1. The hearing of Appeal 092 of 2014 is adjourned to 9.30 am on 10 October 2014, at Brisbane.

2. If the appellant Hodson is unable for good reason to attend the Tribunal in person or by his lawful representative at that time, submissions by or on his behalf shall be made by telephone link.

4. The respondents are at liberty to attend future hearings of this matter by telephone link.

6. Upon applying to Dr Lim for his affidavit the appellant shall provide Dr Lim with a true and correct copy of the said email.

7. The appellant shall file and serve an affidavit testifying that he has complied with Order 6.

9. The appellant shall promptly serve upon the respondents true copies of all future correspondence sent by him to the Tribunal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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