Laing v Jacobson
[2011] QCATA 37
•28 February 2011
| 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 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 Mr Jacobson. Mr Jacobson opposed the adjournment and told the learned Adjudicator that he had travelled 1,000 kilometres from Richmond in New South Wales to attend the hearing that day. Further there had been considerable delay since he first demanded payment.
Consideration was then given to the reasons for non attendance by Ms Laing or her lawyers as well as Mr Jacobson’s circumstances. Ms Laing made no attempt to contact the Tribunal at the nominated hearing time of 2pm. The letter did not disclose what time the funeral service was to be conducted on 18 November, it remains unknown. I point that out because knowing that the adjournment had not been granted, it was incumbent on either Ms Laing or her solicitor to make contact with the Tribunal on the day of the hearing preferably at the allocated time. That was not done.
In the absence of any appearance by Ms Laing or a representative the Tribunal Member, as he was entitled to do proceeded with the hearing. At the conclusion of the hearing it was ordered that Ms Laing pay to Mr Jacobson the sum of $2,412.40.
From that decision, Ms Laing appealed and filed an application for leave to appeal or appeal in the Tribunal on 2 December 2010. Leave is necessary[1]. The grounds of appeal are that Ms Laing was denied natural justice and not given an opportunity to be heard at the minor civil dispute hearing. The grounds further contend that as the Tribunal was advised on 16 November 2010 of the circumstances of the applicant the hearing ought to have been adjourned, obviously without regard to the views of Mr Jacobson.
[1] QCAT Act, s 142(3).
In the absence of any confirmation that the proceeding would be adjourned, it was incumbent upon Ms Laing to attend the hearing. It seems that the solicitors assumed, wrongly, that the application for the adjournment would be granted and therefore there was no need to attend. There was no basis for the applicant’s solicitors to make such an assumption or that it was a foregone conclusion that the proceeding would be adjourned.
The Tribunal can proceed to hearing and determine the application in the absence of a party[2]. There is also an obligation on the Tribunal to dispose of matters in a way that is efficient and timely consistent with achieving justice.[3] Here, Ms Laing was given notice of the hearing but chose not to attend.
[2] QCAT Act, s 93.
[3] QCAT Act, ss 3(b) and 4(c).
Here the learned Adjudicator decided to proceed after giving consideration to the circumstances of the applicant and the lack of particularity with respect of the request for an adjournment as to the time when the applicant would be unavailable. The decision made to proceed was clearly open to him as an exercise of discretion.
The applicant’s submissions in support of the appeal reiterate the circumstances of her non attendance, but then go on to argue the merits of her defence to Mr Jacobson’s application. However, it is not my function to determine where the truth lay as between the various versions given by the parties[4] but to determine if there has been an error of law on the part of the learned Adjudicator in coming to the conclusion that he did.
[4] Fox v Percy [2003] HCA 22 at 32.
The learned Adjudicator balanced the circumstances of Ms Laing and those of the Mr Jacobson and decided to proceed in the knowledge that Mrs Laing had the right to apply to reopen a minor civil dispute application[5] providing she satisfied the criteria set out in sections 137(a) and (b). She has chosen not to do that but instead, appeal the decision and in doing so is obliged to identify error on the part of the learned Adjudicator.
[5] QCAT Act, s 138.
Her complaint is that she could not attend and had a reasonable excuse. That is, of itself, not a ground of appeal founded on error. Error must be identified in the exercise of discretion.
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?[6] Is there a reasonable prospect that the applicant will obtain substantive relief?[7] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[8] 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?[9]
[6] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[7] Cachia v Grech [2009] NSWCA 232 at [13].
[8] QUYD Pty Ltd v Marvass Pty Ltd (supra).
[9]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 my view, having considered the submissions and the transcript of evidence, no error can be identified in the learned adjudicator’s exercise of discretion[10] to proceed. There is no error on his finding in the circumstances of Ms Laing’s indebtness to Mr Jacobson. Nor would there be a substantial injustice if leave to appeal was not granted in this matter. Therefore, leave to appeal is refused.
[10] House v R (1936) 55 CLR 499.
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