John v Wastestream Corporation Pty Ltd
[2012] QCATA 186
•27 September 2012
| CITATION: | John v Wastestream Corporation Pty Ltd [2012] QCATA 186 |
| PARTIES: | Richard John (Appellant) |
| v | |
| Wastestream Corporation Pty Ltd (atf The Bath Family Trust, trading as Freestyle Fencing) (Respondent) |
| APPLICATION NUMBER: | APL192-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr J R Forbes, Member |
| DELIVERED ON: | 27 September 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the Tribunal made on 14 June 2012 is set aside. 2. This dispute is remitted to the Tribunal to be reheard by a Member or Adjudicator who has not already dealt with it. 3. No order as to costs. |
| CATCHWORDS: | PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – OTHER MATTERS – where party failed to appear – where judgement entered in default of appearance – where appellant not aware of date of adjourned hearing – whether satisfactory reason for non-appearance Acts Interpretation Act 1954, s 39A Dr FA v Medical Board of Queensland [2012] QCAT 110 Yankee Doodles Pty Ltd v Blemvale Pty Ltd [1999] QSC 134 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 |
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
On 14 June 2012 the Tribunal, sitting at Southport, ordered the Appellant Richard John to pay $3,701.50 to Wastestream Corporation Pty Ltd (‘Wastestream’) for the manufacture and installation of fencing and screens on John’s Oxenford property in September 2011.
That decision was made in default of John’s appearance at the hearing.[1]
[1] Queensland Civil and Administrative Tribunal Act 2009, s 93.
On 25 June 2012 John filed an application for leave to appeal, asking the Tribunal “to allow me to make my case and defend my position, as I have not had an opportunity to do so”. Wastestream has filed no submissions in response to that request.
John’s case, in that respect, is simply that he received no notice of the hearing on 14 June 2012, although, according to registry records, a notice was posted to his address for service on 11 May 2012. However, the presumption of receipt of a document served by post is rebuttable[2], and the QCAT Act and Rules contain nothing to the contrary. It would be passing strange if non-receipt of a notice of trial, well proved, could not be accepted as a reasonable explanation for non-appearance. John elaborates his initial claim of non-receipt in submissions filed on 24 July 2012 and in his affidavit of 17 September 2012. Understandably, he can give no definitive explanation for non-receipt of the notice. He says that his mail is occasionally delivered to neighbours in error, and that on a few occasions his letter box has been tampered with, and the contents strewn upon the road or his lawn, but he adds, fairly, that he recalls no such event in May 2012.
[2]Acts Interpretation Act 1954, s 39A(1)(b); Yankee Doodles Pty Ltd v Blemvale Pty Ltd [1999] QSC 134 at [20]. Cases suggesting otherwise, based on Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87, and Gem Po-Chioh Cheong v Webster; Ex parte Gem Po-Chioh Cheong [1986] 2 Qd R 374 overlook the fact that s 39A of the Acts Interpretation Act 1954 was inserted after those cases were decided. See s 35 of the Acts Interpretation Amendment Act 1991.
I propose to treat the application for leave to appeal as a request to set aside the default judgment and to reopen the proceedings[3] for re-hearing, on the ground that Dr John has “a reasonable excuse for not attending the hearing”[4]. I find support for this approach in sections 3(b)[5], 4(c)[6], 28(1), 28(2)[7] and 61[8] of the QCAT Act, as well as QCAT Rules 3(1)(a) and 3(2)(a)(ii). Documents drawn by non-lawyers are not to be subjected to the standards expected of lawyers’ pleadings in superior courts.[9] There is also the consideration – see [11] below – that in June 2012 the Southport registry gave John incorrect advice as to the form of application to use and did not correct that advice until some 10 weeks after he filed his appeal.
[3]Dr John deposes, and I accept, that when he contacted QCAT’s Southport office on 18 June 2012, he was told that his “only option was to appeal”, but on 12 September 2012 a member of staff at that office advised him that it would have been better to have applied for a reopening: Affidavit of Richard John, affirmed 17 September 2012, filed 18 September 2012, [10]-[11].
[4] Queensland Civil and Administrative Tribunal Act 2009, s 137. See also ss 138, 139.
[5]A prime object of the QCAT Act is “to have the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick”, as is recognised in many of its decisions, including Dr FA v Medical Board of Queensland [2012] QCAT 110 at [12].
[6]Section 61(3) of the Queensland Civil and Administrative Tribunal Act 2009 states: “To achieve the objects of this Act, the tribunal must ... ensure proceedings are conducted in an informal way that minimises costs to parties ...” See also s 28(3) of the Act and Rule 3 of the Queensland Civil and Administrative Tribunal Rules 2009. The Tribunal has a “positive mandate to attend to the substantial merits of a case”: Coker v Ray White Moranbah [2011] QCATA 206 at [8]; see also Island Development Group v Smith Development Pty Ltd [2012] QCATA 15 at [21]; Space Con Pty Ltd v Blue Star Pacific Pty Ltd [2011] QCATA 361 at [13].
[7]Subject to legislation, procedure is at the discretion of the Tribunal, and “formality and technicality” is to be minimised.
[8]Relief from procedural requirements. See eg Kordatos v Jackson [2011] QCATA 177 at [10].
[9] See Chivers v State of Queensland [2011] QCAT 357 at [15].
Section 61(3) of the QCAT Act[10] is not an obstacle here; the “leave” application served on or about 17 July 2012[11] and subsequent submissions by Dr John clearly allege an absence of notice, which Wastestream has not put in issue. Dr John cannot be held responsible for the difficulty that has arisen. Wastestream appeared by a lay advocate on 14 June 2012, and it is reasonable to assume that it will do so at a rehearing.
[10]Section 61(3) of the QCAT Act states: “The tribunal can not extend or shorten a time limit or waive compliance with another procedural requirement if to do so would cause prejudice or detriment, not able to be remedied by an appropriate order for costs or damages ...”
[11] Affidavit of service by Kylie Catterall, sworn 17 July 2012 and filed the same day.
On 11 September 2012 I directed John to confirm his claim of non-receipt on oath, and he has promptly and fully complied with that direction.[12] In particular, he repeats the claim that he received no notice of the hearing on 14 June 2012, and that he first became aware of the default judgment on 18 June 2012 when he telephoned the Southport registry of the Tribunal to ask whether a new hearing date had been set.[13] He says that the formal notice of the Tribunal’s decision did not arrive until 19 June 2012.
[12] Affidavit of Richard John affirmed 17 September 2012, filed 18 September 2012.
[13] Affidavit of Richard John, [7].
I have no hesitation in accepting, on the balance of probabilities, that John did not receive notice of the hearing on 14 June 2012.
There is considerable circumstantial evidence to support John’s sworn and uncontradicted evidence to that effect, including these considerations:
(i) The matter first came on for hearing on 27 April 2012, when the Appellant John was present, and commenced a vigorous and evidently well-prepared defence to the claim; as the second Adjudicator colourfully put it, he was “all hot to trot”[14];
(ii) He had already attended a mediation conference;
(iii) After an hour of discussion on 27 April 2012, the matter was adjourned to “the next available hearing date”, the Adjudicator adding vaguely: “You’ll be advised, I don’t know myself, hopefully before Christmas.[15]
(iv) Official records of telephone calls from the Dr John’s workplace, Griffith University, show that on 18 June 2012 at 9.33 am, a call lasting some 7 minutes was made from the University to the Southport courthouse.[16]
(v) On 12 September 2012 a member of QCAT staff, Southport, told John that in June 2012 phone calls to that office, concerning Tribunal proceedings, were not regularly diarised.[17]
(vi) There is no suggestion that John received informal notice of the hearing on 14 June 2012. When the Adjudicator, on that day, asked Wastestream’s representative whether he had had any discussions with his opponent, the unequivocal answer was “No, not at all”.[18]
[14] Transcript of hearing 14 June 2012 page 1.
[15] Transcript of hearing 27 April 2012 page 20.
[16]Affidavit of Richard John, at [7]-[10], and annexed copy of telephone record from Griffith University, Gold Coast Campus for 18-21 June 2012.
[17] Affidavit of Richard John, at [8].
[18] Transcript of hearing 14 June 2012, page 1.
When John failed to appear on 14 June 2012, inquiries about his absence appear to have been somewhat perfunctory, considering his earlier appearances, and the detailed material he had already filed. It may be doubted whether “satisfaction” as to service, within the meaning of s 93(1), should have been arrived at on the basis of the following brief exchange, without some further inquiry to, or through, the registry:
Adjudicator: Mr Bath[19], where’s Mr John? Have you had any discussions with him?
Bath: No, not at all.
Adjudicator: Well, I don’t understand it. He was all hot to trot last time ... I don’t know. Well, we’ll proceed in his absence. You want your full claim...”[20]
[19] Wastestream’s representative.
[20] Transcript of hearing 14 June 2012, page 1.
It also appears that the Southport registry, doubtless in good faith, advised John, a non-lawyer, that his remedy lay in an application for leave to appeal, when the more appropriate procedure was a reopening application. The correct advice was not given by the local registry until 12 September 2012, some ten weeks after the present application was filed.[21]
[21] Affidavit of Richard John, at [10] and [11].
No doubt the Adjudicator would have taken a different course had all this material been before him on 14 June 2012. It is clear that a serious injustice would occur if Dr John were denied an opportunity to contest this case on its merits. A reopening order must be made. At the same time I emphasise that this decision implies no judgment of the merits of the substantive claim. That is a matter for the person conducting the rehearing.
ORDERS
The decision of the Tribunal made on 14 June 2012 is set aside.
This dispute is remitted to the Tribunal to be reheard by a Member or Adjudicator who has not already dealt with it.
No order as to costs.