| 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, Petrovic v Taara Framework (Canberra) Pty Ltd (1982) 62 FLR 451 |
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 seeks an adjournment of the hearing.
Hodson’s explanation for his non-appearance is contained in an email sent to the Tribunal at 5.17 pm on Sunday 24 August 2014, the eve of the hearing.
That communication reads in part:
I am unable to attend the hearing today ... due to the following reasons. I have had heart problems for [the] past five years ... Last Friday I noticed that [my blood pressure] had risen from 128 over 89 to 159 over 102. I rang my heart specialist’s rooms to make an appointment to see my doctor Dr Kang Lim at Southport Heart Clinic[1] ... They advised me that unfortunately I can’t get in till mid Sept[ember] but they are trying to get me in sooner ...
I believe it would be unsafe ... if I drove to Brisbane ... So I respectfully ask that this hearing be adjourned to a date no earlier than October for health reasons.
As a show of sincerity I was going to suggest a phone hearing, but my family suggested not ... because it would be in my best interest to try and not experience any stress ... If my request for an adjournment ... is denied, then I shall consider that I have been denied my natural justice
[1]Apparently this is a reference to the Gold Coast Heart Centre, at Allamanda Private Hospital, Southport. Its website advertises a Dr Kang-Ten Lim.
There is a concluding threat:
If my request for an adjournment ... is denied, then I shall consider that I have been denied my [sic] natural justice.
The McFarlands state, and I accept, that Hodson did not serve them with a copy of that email
Hodson has tendered no medical evidence in support of his adjournment application.
At approximately 9.40 am today (25 August 2014) a person who identified himself as Hodson telephoned the Tribunal registry to ensure that the above email had been received by QCAT. However, when the Tribunal attempted to contact Hodson from the hearing room a few minutes later, the attempt was unsuccessful. Two telephone calls to each of Hodson’s landline number and his mobile number resulted in recorded messages stating that he was unavailable.
Nevertheless, mindful of authorities cautioning against summary rejection of applications for adjournments on prima facie serious medical grounds,[2] I reluctantly adjourned the hearing to a date to be fixed. The new date appears in Order 1.
It is most unfortunate that the McFarlands were put to the expense of money, time and trouble to travel from their Magnetic Island residence to Brisbane for a hearing that did not proceed. If orders for costs in minor civil disputes were not strictly limited,[3] I would seriously consider an order for indemnity costs of the adjournment against the appellant. I shall give the McFarlands leave to attend any further hearings of this matter by telephone link.[4]
[3]Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) s 102(2); Schedule 3, definitions of “minor civil dispute” and “prescribed amount”; Queensland Civil and Administrative Rules 2009 rr 83, 84, Schedule 3, definition of “minor debt claim”.
[4]QCAT Practice Direction No 4 of 2010.
The absence of medical evidence has already been noted. My orders and directions will deal with that matter.
The McFarlands have noted the order of Senior Member Stilgoe, made on 25 February 2014, refusing the appellant’s application for a stay of the orders made by Adjudicator Gordon on 21 January 2014. Those orders, and the said order of the Senior Member, are matters of record.
ORDERS
The hearing of Appeal 092 of 2014 is adjourned to 9.30 am on 10 October 2014, at Brisbane.
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.
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.
The respondents are at liberty to attend future hearings of this matter by telephone link.
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.
Upon applying to Dr Lim for his affidavit the appellant shall provide Dr Lim with a true and correct copy of the said email.
The appellant shall file and serve an affidavit testifying that he has complied with Order 6.
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.
The appellant shall promptly serve upon the respondents true copies of all future correspondence sent by him to the Tribunal.
- AGLC
- Hodson v McFarland [2014] QCATA 231
- Case
- [2014] QCATA 231
- Decision Date
CaseChat Overview and Summary
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.
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.
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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