Jennings v Design and Procure Pty Ltd

[2010] QCATA 36

CITATION: Jennings v Design and Procure Pty Ltd [2010] QCATA 36

PARTIES:	Nichole Ann Jennings (Applicant)
v
Design and Procure Pty Ltd (Respondent)

APPLICATION NUMBER:            APL120-10               

MATTER TYPE:

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: Judge Fleur Kingham
(Deputy President )

DELIVERED ON:   12 July 2010

DELIVERED AT:   Brisbane

ORDERS MADE:  1. The application to stay the decision is refused.

CATCHWORDS : 

APPLICATION TO STAY DECISION UNDER APPEAL, whether grounds for stay established

Queensland Civil and Administrative Tribunal Act 2009 s145(2)

Berry v Green [1999] QCA 213; applied

Cook's Construction P/L v Stork Food Systems Aust P/L [2008] QCA 322; applied

REASONS FOR DECISION

1. In Ms Jenning’s absence, an adjudicator of the tribunal found in favour of Design & Procure Pty Ltd in its claim to recover its fee for professional interior design services and associated costs. Ms Jennings filed an application for leave to appeal that decision. She also applied to stay the decision pending the outcome of that application. I rejected that application on 12 July 2010. Ms Jennings has requested I reconsider my decision or publish my reasons for refusing her application.

1. There is no basis for reconsidering my decision. These are my reasons for refusing Ms Jenning’s application for a stay of the learned adjudicator’s decision pending the appeal.

1. The tribunal may make an order staying the operation of a decision until an appeal is determined.[1] Its discretion to grant a stay is unfettered. The fundamental principle is that the successful party is entitled to the fruits of a decision in its favour, unless there is a particular feature of the case which warrants departure from that position. [2]

   [1] Queensland Civil and Administrative Tribunal Act 2009 s 145(2)

   [2] Berry v Green [1999] QCA 213

1. A stay will not be granted unless the applicant has an arguable case on appeal and the balance of convenience favours the grant of a stay.[3]

   [3] Cook's Construction P/L v Stork Food Systems Aust P/L [2008] QCA 322 at [12], [13], [15]

1. The material filed by Design and Procure is comprehensive and substantial. Ms Jennings’ response argued the claim was excessive. She produced no material relevant to the merits of the claim made against her. Unless she is granted leave to file fresh evidence in the appeal (which she has not sought to do) her prospects on appeal seem faint.

1. In her application for an appeal, she argued she was not given an opportunity to respond to the material filed by Design and Procure or to cross-examine their witnesses. That she could do neither was not the fault of the learned adjudicator.

1. The applicant stated the material on which the learned adjudicator made her decision was provided to both her solicitor and to Ms Jennings some six weeks before the hearing. Correspondence from Ms Jennings to Design and Procure (dated 6 May 2010) and from her solicitors to an agency engaged by Design and Procure (dated 29 April 2010) reveal that Ms Jennings had received material in support of Design and Procure’s claim. It is also evident that, before these proceedings commenced and after, Design and Procure had provided Ms Jennings with its invoices and other documentation in support of its claim. Ms Jennings had the opportunity to respond to that material but did not file any material in QCAT.

1. She was unable to cross examine Design and Procure’s witnesses because she did not attend the hearing. The claim had been listed for hearing on 16 April 2010 but did not proceed. Before the hearing, a lawyer for Ms Jennings requested an adjournment until May. The request was brought to the adjudicator’s attention, who adjourned the hearing to a date to be advised to the parties. She also ordered that if Ms Jennings failed to appear on the next hearing date the matter would proceed on an ex-parte basis. The rescheduled date of 28 May 2010 was notified to the parties on 23 April 2010.

1. Ms Jennings was also before QCAT on an application she had brought against Mr Jenkins (claim no 0070097/09).  It appears the two claims were related in some way.  Ms Jennings’ lawyers wrote to QCAT on 30 April 2010 and requested QCAT schedule the Jenkins application to be heard at the same time as the Design and Procure application. An officer orally declined that request.

1. In a further letter dated 19 April 2010 but faxed to QCAT on 20 May 2010, Ms Jennings’ lawyer made a further request for the Jenkins application to be rescheduled to be heard with the Design and Procure application. A separate letter was faxed on the same day (dated 20 May 2010) making the same request one more time. In that letter, her lawyer stated Ms Jennings was overseas but was returning for the hearing of the Design and Procure application on 28 May.  Once again, an officer of QCAT orally advised Ms Jennings’ lawyer the Jenkins application would proceed as scheduled.

1. While repeated requests were made to reschedule the Jenkins application, there was no request made to reschedule the Design and Procure application. Ms Jennings was aware it was listed for 28 May 2010. Her lawyer advised QCAT she was attending that hearing. Ms Jennings did not appear. As previously ordered, the adjudicator proceeded in her absence. Even without the order, the adjudicator would have been entitled to proceed without Ms Jennings because it was clear from her lawyers’correspondence that she had notice of the hearing.[4]

   [4] Queensland Civil and Administrative Tribunal Act s93

1. The applicant submitted they prepared for both hearing dates and travelled from Cairns for them. On each occasion, the applicant states it was put to the expense of two flights from Cairns and overnight accommodation. They had a legitimate expectation that it would proceed as scheduled.

1. There is no merit in Ms Jenning’s complaint about the way in which the matter proceeded on 28 May 2010. Nor is there any substance in her complaint that she did not receive written reasons for the decision. Reasons were given orally and, as provided for, she was entitled to a transcript or recording of those reasons.[5]

   [5] Queensland Civil and Administrative Tribunal Act ss122, 123

1. The claim was due from early 2009. The application was made in December 2009. Further delay in recovering the debt is unwarranted. There is no basis for concluding that Design and Procure will not or does not have the means to repay Ms Jennings if she subsequently succeeds in her appeal.

1. Ms Jenning’s prospects on appeal appear to be slim. The balance of convenience favours Design and Procure. Ms Jennings would not appear to be irremediably prejudiced if the stay is not granted, but the appeal proper is later decided in her favour.[6] Ms Jennings application for a stay is refused.

   [6] Cook's Construction P/L (Supra), at [15].

1. On 12 July 2010, directions were made for the conduct of the applications for leave to appeal and appeal.  The tribunal will proceed to determine those applications in accordance with the directions.