Laing v Jacobson - [2011] QCATA 37

CITATION:

Laing v Jacobson [2011] QCATA 37

PARTIES:	Camelina Laing (Applicant/Appellant)
v
Mark Andrew Jacobson (Respondent)

APPLICATION NUMBER:

APL342-10

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Richard Oliver, Senior Member

DELIVERED ON:

28 February 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

Leave to appeal is refused.

CATCHWORDS:

Minor Civil Dispute – failure to appear at hearing – application for adjournment prior to hearing – exercise of discretion to proceed with hearing in absence of party – whether exercise of discretion miscarried

Queensland Civil and Administrative Tribunal Act 2009, ss 3, 4, 93, 138, 142(3)

Cachia v Grech [2009] NSWCA 232
Fox v Percy [2003] HCA 22
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

House v R (1936) 55 CLR 499

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

The respondent Mr Jacobson filed an application for a minor civil dispute – minor debt in the Ipswich Magistrates Court on 21 July 2010 claiming $2,250 for money owed to him by the applicant for work and labour done at her request.

The applicant filed a response to the application in which she contended that Mr Jacobson had already been paid for the debt and that Mr Jacobson’s claim was frivolous.

Ms Laing also filed an application for leave to be legally represented in the proceeding but that application was not determined prior to the hearing.

The application was listed for hearing on 17 November 2010. The day before the hearing, the Magistrates Court at Ipswich was contacted by Ms Laing’s lawyers to advise that they would be sending a letter to the Court stating that Ms Laing would not be able to attend the hearing on 17 November 2010. The solicitors were advised by the Registry staff that she could attend by telephone if she wished. That is not an unusual procedure adopted by the Tribunal when parties live some distance from the place of the hearing.

A letter was received by the Court which made its way to the minor civil dispute file which stated, inter alia, that:

“We understand that a hearing has been scheduled in this matter for tomorrow, 17 November 2010. As discussed with you, our client is unable to attend tomorrow as she and her son, Mr Trent Laing (director of the Laing Group) have a funeral to attend for a close personal friend…

The application for adjournment of the hearing is made on the basis of funeral (sic) that our client must attend tomorrow.”

The application was not adjourned prior to it coming on for hearing before the learned Adjudicator. The transcript reveals that he raised the issue of the adjournment with…

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.

Continue reading Laing v Jacobson

Details

AGLC: Laing v Jacobson [2011] QCATA 37
Case: [2011] QCATA 37
Decision Date: 28 February 2011

CaseChat Overview and Summary

The matter between Laing and Jacobson was brought before the court as a minor civil dispute. The case involved a failure of the respondent, Jacobson, to appear at the scheduled hearing. Prior to the hearing, Jacobson had applied for an adjournment, which was denied. The primary issue before the court was whether the denial of the adjournment application and the decision to proceed with the hearing in the absence of Jacobson constituted a misapplication of the court's discretion.

The court addressed the question of whether the trial judge exercised their discretion correctly by denying the adjournment and allowing the hearing to proceed without Jacobson. It was established that the decision to proceed with a hearing in the absence of a party is a discretionary one, and the court would only interfere if the exercise of that discretion was shown to be erroneous. The court examined the circumstances surrounding Jacobson's absence, the reasons provided for the adjournment request, and the impact of the absence on the fairness of the proceedings. The court concluded that the judge's decision was not a misapplication of discretion, as there were no procedural errors or evident unfairness in proceeding without Jacobson.

The court found that the trial judge's decision to proceed with the hearing in Jacobson's absence was justified under the circumstances. Consequently, the application for leave to appeal was refused. The court determined that the original decision was sound and there was no basis for the appeal to succeed. The orders of the court remained as initially determined, with no further appeal permitted.

Orders

Orders of the court

Leave to appeal is refused.

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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