Longmore v Price
[2022] QCATA 159
•2 November 2022
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Longmore v Price & Anor [2022] QCATA 159
PARTIES:
layne longmore and annie longmore (appellants)
v
Jason price (first respondent)
iinergy pty ltd (second respondent)
APPLICATION NO/S:
APL 157-22
ORIGINATING APPLICATION NO/S:
MCDO377-21
MATTER TYPE:
Appeals
DELIVERED ON:
2 November 2022
HEARING DATE:
2 November 2022
HEARD AT:
Brisbane
DECISION OF:
Judge Dann, Deputy President
ORDERS:
1. Pursuant to section 49 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), leave is granted to Layne Longmore and Annie Longmore to commence another proceeding against Jason Price and IInergy Pty Ltd in relation to the matters the subject of MCDO377-21, which was dismissed on 13 May 2022.
2. Layne Longmore and Annie Longmore must file a Notice of Withdrawal of Appeal in matter APL157-22 within 14 days of commencing another proceeding in the Tribunal.
CATCHWORDS:
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the appellants’ original proceeding was dismissed for failing to comply with directions – where the appellants sought to commence another proceeding of the same kind, relating to the same matter – where the Deputy President has power to grant leave if the interests of justice require leave to be given – whether leave should be granted
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28, 49
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
The issue in this proceeding is whether Mr and Mrs Longmore should have leave to start a proceeding of the same kind relating to the same matter as an earlier minor civil dispute proceeding MCDO 377-21 (Proceeding) they had filed in the Tribunal on 29 March 2021.
What happened before the Tribunal that gave rise to this appeal?
Mr and Mrs Longmore, the appellants, live in rural Queensland.
They have appealed against the dismissal of the Proceeding they brought against Mr Jason Price and, thereafter, IInergy Pty Ltd.
The Proceeding was dismissed because they failed to comply with directions of 4 November 2021. They say they did not receive those directions, which were posted to them. My review of the file in the Proceeding indicates that their subsequent actions are entirely consistent with that being so.
They received subsequent directions made on the papers on 30 March 2022 requiring them to comply with the 4 November 2021 directions by 15 April 2022, failing which, the claim would result in the application being dismissed without further notice.
Materials on the Tribunal’s file shows they queried those directions in an email of 8 April 2022 shortly after they received them. At that time they told the Tribunal they did not have a copy of the directions of 4 November 2021, they did not know that their matter was being dealt with that day and they had not been successful in making telephone contact with the Tribunal despite repeated efforts to do so. They asked for advice about what to do.
By email dated 19 April 2022, (that is, after the time for compliance with the 4 November 2021 directions had expired) the Tribunal first provided them with a copy of those directions and provided the link to the Tribunal’s website about how to obtain independent legal advice.
Unsurprisingly, a little over three weeks later, the Tribunal dismissed the Proceeding on 13 May 2022, based on the non compliance with the directions of 4 November 2021 and 30 March 2022. No parties were present at the hearing at which the Proceeding was dismissed.
The Longmores have sought leave to appeal against the dismissal of the Proceeding.
What was the Proceeding about?
The underlying dispute arises because Mr and Mrs Longmore entered into a contract to purchase a 9kw solar system from a representative of IInergy. Their case is that the representative of IInergy told them they would be able to sell power back into the grid, which would fund the borrowing they entered into to fund the purchase. In fact, however, they cannot do that because they only have single phase power to their home. To return the volume of power to the grid they had anticipated, they would need three phase power to their home, which would require them to spend more money to obtain the upgrade.
Initially they started the Proceeding against Mr Price only.
The Proceeding was listed for mediation in July 2021 but that did not occur because the then respondent, Mr Price, did not attend (despite having applied to attend by telephone).
Thereafter they applied to add IInergy Pty Ltd as a respondent to the Proceeding. The directions of 4 November 2021 granted that application and required that Mr and Mrs Longmore were to serve IInergy and file an ASIC search and an affidavit of service. These were the directions which were not received before the time for compliance had expired. They were not complied with.
What should the Tribunal do?
The application to appeal has been filed on the basis that the Proceeding was dismissed without the applicants being present.
Given the procedural history set out above, there is no proper ground for the appeal and there is no reopening ground.
However, the Tribunal has power under section 49(2) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) to grant leave for the Longmores to start another proceeding of the same kind, relating to the same matter as the earlier proceeding if the proceeding has been struck out under section 48 of the QCAT Act (as the Proceeding was).
The deputy president of the Tribunal may grant leave if the interests of justice require it to be given.
It is apparent that the Longmores have not been able to pursue the substance of their claim. The file in the Proceeding demonstrates that they have always been willing and anxious to pursue the Proceeding. In the face of the procedural history set out above, if the Longmores do not have the chance to have the Tribunal hear the claims they wish to make, the Tribunal will not be acting fairly and in accordance with the substantial merits of the case, as it is required to do by s 28(2) of the QCAT Act. In making that observation, the Tribunal is not expressing any view about the underlying merits of the Longmores’ claim; rather it is reflecting the importance of the Tribunal dealing with the real issues which the Longmores seek to raise before the Tribunal.
Orders
The orders of the Tribunal are as follows:
(a)the Tribunal will grant leave pursuant to section 49 of the QCAT Act to the Longmores to commence another proceeding against Jason Price and IInergy Pty Ltd in relation to the matters the subject of MCDO377-21 which was dismissed on 13 May 2022; and
(b)the Tribunal will also require the Longmores to file a notice of withdrawal of appeal in APL 157-22 within 14 days of commencing another proceeding in the Tribunal.
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