Howard v Elite Plastic Fabrication Pty Ltd
[2012] QCATA 174
•13 September 2012
| CITATION: | Howard v Elite Plastic Fabrication Pty Ltd [2012] QCATA 174 |
| PARTIES: | William David Howard (Applicant/Appellant) |
| v | |
| Elite Plastic Fabrication Pty Ltd (Respondent) |
| APPLICATION NUMBER: | APL430-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 13 September 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Application for leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – EXCLUSION OF PROCEDURAL FAIRNESS – GENERALLY – where appellant disputed indebtedness to claimant – where appellant could not attend mediation due to remoteness of work – where appellant did not appear at hearing – where parents of appellant attended hearing – where appellant did not apply for leave to have parents represent him – where Tribunal found that parents did not have standing to appear – where adjournment refused – where judgment entered in favour of claimant – whether appellant was denied procedural fairness – whether tribunal observed principles of natural justice Queensland Civil and Administrative Tribunal Act 2009, ss 28, 29, 43, 142 Cachia v Grech [2009] NSWCA 232 |
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
In September 2010 Elite sold Mr Howard a large water cart tank for $50,000.00. In November 2010 the company sold him a pump and associated equipment for $6,968.54.
Elite claimed that he did not pay the full sum owed under its invoices and brought proceedings in QCAT’s minor civil disputes jurisdiction for $6,968.54.
Mr Howard filed a Response disputing any indebtedness and alleging that all of the equipment claimed in the second invoice was and should have been incorporated in the original agreed price of $50,000.00.
The matter was listed for mediation but because Mr Howard was working remotely he could not attend. On 29 September 2011 QCAT sent him, by mail, a notice advising that the matter would be heard at the Magistrates Court in Mackay at 2pm on 7 November 2011.
Mr Howard did not attend the hearing, which proceeded before an Acting Magistrate sitting as a QCAT Member. His parents did appear and the audio recording of the proceedings records that his mother explained that he was away working in central Australia but that she and her husband were aware of the issues in the matter and wished to appear and argue the case for their son.
There follows, on the recording, several exchanges between the Acting Magistrate and a female voice in the course of which the Magistrate says that the parents have “no standing to appear” and tells them “you can’t argue the case for him”. There is also a discussion about the possibility of an adjournment, which the learned Acting Magistrate refused.
In the course of these exchanges, the Acting Magistrate said that Mr Howard “…should have sent a letter to the Court”.
Mr Howard did send a letter to the Court on 13 July 2011 when he received information about a proposed date for the mediation. In that letter he asked that the matter be set down for hearing, and said that he was a contractor working near the South Australia/Queensland border on a roster involving twenty-eight days on, and seven days off. He then asked that the matter be listed for hearing in certain periods when he was off work. Those periods did not include the date eventually listed for the hearing, 7 November 2011.
The hearing then proceeded with a representative of Elite giving evidence to the Magistrate about the claim. The learned Acting Magistrate was commendably concerned, and took pains to ensure that Elite provided all oral and documentary evidence necessary to sustain its claim. Having done so, and satisfied with that evidence, he then gave judgment in Elite’s favour.
Mr Howard seeks leave to appeal that decision. Because the original proceeding was a minor civil dispute, leave is necessary: QCAT Act, s 142(3)(a)(i).
Parliament has made it clear in the QCAT Act that speedy and final determinations are desirable in the Tribunal’s minor civil disputes jurisdiction, and that parties should not have an automatic right of appeal. That is why it inserted this additional provision, requiring that a party dissatisfied with a decision could not appeal without first establishing a proper ground for a grant of leave to appeal.
The question whether or not leave to appeal should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[4]
[1] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2] Cachia v Grech [2009] NSWCA 232 at 2.
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
In written submissions in support of his application for leave to appeal Mr Howard says that he was not aware that he should have applied in writing to appoint someone to represent him at the hearing and, by implication, that his parents should have been allowed to appear on his behalf and, because they were not, he was not “…afforded natural justice”.
The Tribunal is obliged to observe the rules of natural justice, but must also act with as little formality and technicality as the legislation, and proper consideration of the matters before the tribunal, permit: QCAT Act, s 28(3). It is also obliged, under s 29, to ensure that each party to a proceeding understands its practices and procedures.
Under s 43 of the QCAT Act, a party may be represented by someone else, if the Tribunal gives leave.
Mr Howard did not make any application of that kind or an application to appear by telephone (for which a process is set out in QCAT Practice Direction No. 4 of 2010).
QCAT has an internet site containing readily accessible information about the need to attend personally or, if that is not possible, procedures whereby a party can lodge an application for leave to be represented or make an application for attendance at a hearing by “remote conferencing”.
It is also relevant that the Notice of Hearing setting the matter down for 2pm on 7 November 2011 – which Mr Howard does not deny receiving – contained this printed warning:
This matter will be heard by the tribunal at the place, date and time stated in this notice. Please be aware that a number of matters are set for this timeslot, and your hearing may be delayed. If you do not attend the hearing, the tribunal may hear and decide the matter in your absence, including making orders against you. (Emphasis added)
The Tribunal’s obligation to observe principals of natural justice and procedural fairness is to be considered in the context of the nature of the proceedings and the jurisdiction being exercised. As the High Court said in Kioa v West[5]:
[The power] must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interest and purposes, whether the public or private, which the statutes seeks to advance or protect or permits to be taken into account as legitimate considerations...
[5] (1985) 159 CLR 550 at 584-5 per Mason J.
It is obvious that Mr Howard knew of the hearing date – his parents appeared, intending to speak on his behalf. His absence was explained by his difficult work commitments but, despite the terms of the Notice of Hearing and its warning about what might happen if he did not appear, he took no steps to inform himself about other appropriate courses which were open to him – in particular, bringing an application seeking leave to have his parents represent him, or to attend by telephone.
The only question is whether or not he has, in those circumstances, been denied procedural fairness. As Dr John Forbes has observed in the third edition of his work “Justice in Tribunals”[6], natural justice requires that the parties have the opportunity to be heard but does not prohibit a decision being made if that opportunity is waived or ignored.
[6]Forbes, JRS. Justice in Tribunals, 3rd ed., Annandale, NSW: Federation Press, 2010 at 12.10.
If a party fails without reasonable cause to appear at the appointed time and place, the Tribunal may proceed in that party’s absence and does not, by doing so, infringe principles of procedural fairness or natural justice. It is advisable, as the learned author warns, for the tribunal to set out the consequences of non-appearance in the Notice of Hearing – as occurred here.
I am not persuaded that the learned Acting Magistrate erred, in law, when he decided not to allow Mr Howard’s parents to represent him in the circumstances just described. The matter was within his discretion. He began the hearing and, the audio recording reveals, arranged for the parents to be sworn in and, when he discovered that Mr Howard was not, in fact, present in person he was careful to investigate the circumstances of his non-appearance and, in particular, to satisfy himself that Notice of the hearing had been given about five weeks earlier.
Once that was apparent, his decision to refuse the parents leave was not harsh or unfair. Mr Howard had written warning of the consequences of his non-appearance. He could easily have discovered steps that he might take, in his own interest, to seek leave for someone to represent him or to appear by telephone, but he did none of those things.
No error warranting a grant of leave to appeal has, therefore, been established.
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