Lindgren v Aaron Trigg Painting

[2011] QCATA 267

CITATION: Lindgren v Aaron Trigg Painting [2011] QCATA 267

APPELLANT:	Paula Catharina Lindgren (Applicant/Appellant)
v
RESPONDENT:	Aaron Trigg Painting  (Respondent)

APPLICATION NUMBER:   APL022-11

MATTER TYPE: Appeals

HEARING DATE:     On the papers

HEARD AT:  Brisbane

DECISION OF: Judge Fleur Kingham, Acting President

DELIVERED ON: 24 January 2011

DELIVERED AT:      Brisbane

ORDERS MADE:

1.   The Applicant is granted leave to apply for leave to appeal or appeal the Minor Civil Dispute decision in claim number 55-110 heard in Nambour.

2.   The application made in case number APL206-10 is accepted as that application and will proceed under case number APL022-11 and

(a)  Any procedural requirements in relation to filing a further application are waived; and

(b)  All material filed by either party in APL206-10 is accepted as material filed in case number APL022-11.

3.   The applicant will file in the registry one copy and deliver to the respondent one copy of her written submissions in support of the application for leave to appeal (and if successful in that application in support of the appeal), by 4.00pm on 14 February 2011.

4.   If the applicant complies with the direction in paragraph 3, the respondent may file in the registry one copy and deliver to the applicant one copy of its submissions in reply to both the application for leave to appeal and in support of the appeal within 21 days after receipt of the applicant’s submissions.

5.   If the applicant does not comply with the direction in paragraph 3, the Tribunal will proceed to determine the application on the papers.

CATCHWORDS:

APPEAL – Where application dismissed for non-compliance – where reasonable excuse – whether reopening available – leave granted to bring fresh application for leave to appeal and directions made

Queensland Civil and Administrative Tribunal Act 2009, ss 28, 48, 49, 136

REASONS FOR DECISION

1. Ms Lindgren applied for leave to appeal a decision made in a Minor Civil Dispute matter heard in Nambour in August 2010.  She did not comply with directions made on 21 October 2010 to file submissions in support of her application for leave to appeal, and if successful in that application, in support of her appeal.  Those directions provided that if she did not do so, her application would be dismissed without further notice.  On 16 November 2010, after the date for compliance, her application was dismissed.

1. Ms Lindgren has asked the Tribunal to reconsider that decision.  She has provided the Tribunal with a letter dated 13 September 2010 advising she would be overseas in October and November.  She says she sent it to the Tribunal on or about the date of the letter.  There is no record on the Tribunal’s file of the letter having been received.  That does not mean the Tribunal did not receive it.  This Tribunal receives a large volume of correspondence each day.  From time to time documents go astray and are filed incorrectly.  Sending a letter advising the Tribunal of her movements is consistent with Ms Lindgren’s conduct, otherwise, of her application.  By then, Ms Lindgren had already provided substantial information to the Tribunal, which indicated her intention to prosecute her application.  I accept Ms Lindgren sent the letter to the Tribunal.

1. Had I been aware of it, I would not have dismissed Ms Lindgren’s application.  In all proceedings, the Tribunal must act fairly and according to the substantial merits of the case[1].  Were the decision to dismiss the application to stand in the face of Ms Lindgren’s matter, it would not have achieved that objective.

   [1]        Queensland Civil and Administrative Tribunal Act 2009, s 28(2).

1. The Tribunal has the power to reopen proceedings in certain circumstances[2].  It is questionable whether that process is available here because it does not apply to an appeal heard and decided by the Tribunal[3].  It could be argued that, where the application has been dismissed for non compliance, it has not been heard and decided.

   [2]        Queensland Civil and Administrative Tribunal Act 2009, s 137.

   [3]        Queensland Civil and Administrative Tribunal Act 2009, s 136.

1. There is another course open, and that is for Ms Lindgren to commence a fresh application for leave to appeal.  Because her application was dismissed for non compliance with a procedural requirement, she may only commence a new application on the same ground with the leave of the President or Deputy President[4].  Leave can be granted if the President or Deputy President considers the interests of justice require leave to be given.

   [4]        Queensland Civil and Administrative Tribunal Act 2009, ss 48, 49.

1. I consider it is in the interests of justice for leave to be granted for Ms Lindgren to commence a new application for leave to appeal and to appeal.  Given the circumstances of the case it would be inappropriate to put Ms Lindgren to the trouble and expense of filing a new application.  This would also inconvenience the respondent who has already filed material and submissions in APL206-10.  The better course is to waive the procedural requirements which apply to an application and to accept the documents filed in APL206-10 as documents filed in a new application[5].  This will preserve both parties’ positions prior to the application being dismissed.

   [5]        Queensland Civil and Administrative Tribunal Act 2009, s 61.

1. The orders and directions I have made will progress the application from the stage it had formerly reached as APL206-10.  Ms Lindgren has been given a new date by which to provide her submissions[6].  Although the Respondent has already filed some submissions, he has been given a date by which he can respond to Ms Lindgren’s written submissions.  The application will then be determined on the papers, without an oral hearing.

   [6]Submissions are written arguments not evidence, in this case about why she should have leave to appeal and why the appeal should succeed.