Martin v Gosdchan
[2011] QCATA 71
•28 March 2011
| CITATION: | Martin v Gosdchan [2011] QCATA 071 |
| PARTIES: | Bradley Martin (Applicant/Appellant) |
| v | |
| Petra Gosdschan (Respondent) |
| APPLICATION NUMBER: | APL251-10 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 28 March 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Both parties are granted leave to be legally represented before the Appeal Tribunal. 2. The applicant’s application for an extension of time to file his application for leave to appeal (and his appeal if leave is granted) is granted. 3. The time for filing of the applicant’s application for leave to appeal is extended to the date upon which his application to appeal was filed in October 2010. 4. The application for leave to appeal (and the appeal if leave is granted) will be determined on the papers. 5. The applicant will file one copy and give one copy of all of his submissions in support of his application for leave to appeal (and his appeal if leave is granted) to the respondent’s legal representative by 4:00pm on 11 April 2011. 6. The respondent will file and give the applicant’s legal representative a copy of her submissions in response by 4:00 pm on 25 April 2011. |
| CATCHWORDS : | APPEAL – LEAVE TO APPEAL – LEAVE TO BE REPRESENTED – where the respondent was legally represented at first instance – where the applicant seeks leave to be represented at the appeal – where the respondent has not sought leave to be legally represented at the appeal – where the parties submit that the matter involves complex questions of law and fact – whether it is in the interests of justice for the parties to be represented APPEAL – LEAVE TO APPEAL – EXTENSION OF TIME FOR FILING SUBMISSIONS – where the applicant’s appeal material was filed either one or three days out of time or, if not, within time having regard to the ‘relevant day’ for filing – whether it is fair and just for an extension of time to be granted APPEAL – LEAVE TO APPEAL – PROCEDURE – STRIKING OUT PROCEEDINGS – where the respondent alleges that the proceedings should be struck out as the applicant did not seek leave to appeal, as is required by the legislation – whether the application to strike out is misconceived Queensland Civil and Administrative Tribunal Act 2009, ss 3, 28, 32, 43, 45, 61, 142 |
APPEARANCES and REPRESENTATION (if any):
The 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
The proceedings before the Appeal Tribunal arise out of Mr Martin’s application for leave to appeal a decision of a QCAT Adjudicator in a building matter, after a hearing in July 2010. In the original proceedings Mr Martin claimed $12,000 for the value of building work he had allegedly performed for Ms Gosdschan. She counterclaimed for money she alleged was overpaid to Mr Martin.
After a lengthy hearing the presiding Member calculated that the value of work and materials for which Mr Martin could legitimately claim was $52,494.33, which he then offset against Ms Gosdschan’s counterclaim. After some adjustments, it was ordered that Mr Martin pay her $48,020.07.
The learned Member gave his reasons orally, immediately at the conclusion of the hearing.
On 13 October 2010 Mr Martin filed an application for leave to appeal that decision. On 18 October 2010, the Deputy President ordered that the parties exchange submissions on a timetable, and that the matter then be considered at a Directions Hearing. On 15 November Ms Gosdschan’s solicitor filed an application to strike out or dismiss Mr Martin’s appeal. On 22 November Mr Martin sought an extension of time for submitting appeal documents under the timetable ordered on 18 October. On 24 November his application seeking an extension of time and Ms Gosdschan’s application to strike out a proceeding were ordered to be determined on the papers – that is by written submissions from the parties, without oral argument. A new timetable for submissions, for that purpose, was set.
On 5 January 2011, Mr Martin filed an application for leave to be legally represented. On 8 March 2011 Mr Martin’s lawyers wrote advising that their submissions in respect of the application for leave to appeal would be delivered shortly, and asked for more time over and above the timetable set in October 2010.
The excuse advanced by Mr Martin’s lawyers for non-compliance is delay in obtaining a copy of the recording or transcript of the original hearing (which took place on 15 July 2010) and, then, some technical difficulties since a recording was obtained on 25 February 2011. It is unclear why Mr Martin and his lawyers have encountered all these difficulties. A typed copy of the transcript has been available to the Appeal Tribunal since December 2010.
This array of applications and the events which have happened in the matter (like non-compliance with simple orders) is highly unsatisfactory, and has needlessly complicated the relatively simple process envisaged for appeals in the QCAT Act.
The conduct of the parties and their lawyers flies in the face of the spirit and intention of the Act.
Section 45 of the Act places a general obligation upon parties to act quickly in any dealings relevant to a proceeding. Section 4(c) requires that the Tribunal ensure that proceedings are conducted in an informal way that minimises cost to parties, and is as quick as is consistent with achieving justice. Section 28(3)(d) requires that the Tribunal, in conducting a proceeding, must act with as little formality and technicality and with as much speed as the legislation and rules, and a proper consideration of the matters before the Tribunal, will permit. These provisions are to be read under the overarching requirement, in s 3, that the Tribunal must deal with matters in a way that is accessible, fair, just, economical, informal and quick.
[10] This decision addresses the legal representation of each of the parties; Mr Martin’s application to extend time for his application for leave to appeal; and Ms Gosdschan’s application to strike out his application, and his appeal.
[11] Mr Martin has applied, through his lawyers, for leave to be legally represented in his application for leave to appeal (and the appeal if leave is granted). He was not legally represented at the original hearing. Ms Gosdschan was represented, and her lawyers have simply continued to act for her in the current proceedings before the Appeal Tribunal. The application before the Appeal Tribunal is a new, separate and distinct proceeding from the matter which was before the QCAT Tribunal at first instance. Mrs Gosdschan has no automatic right to legal representation before the Appeal Tribunal and, like Mr Martin, requires leave under s 43 of the QCAT Act.
[12] Section 43 provides that, in the ordinary case, parties will represent themselves unless ‘… the interests of justice require otherwise’. Mr Martin submits that the interests of justice will best be served if he is legally represented because the appeal is said to involve complex questions of fact or law; and because Ms Gosdschan is represented. For reasons just discussed, the last submission is incorrect – she has neither sought nor obtained leave to be represented before the Appeal Tribunal.
[13] What has happened here is that the lawyers have, on behalf of their respective clients, filed well over 100 pages of material and submissions about their various applications. In the result the matter is now, indubitably, complex.
[14] It is appropriate to remark, in passing, that it cannot have been the intention of the legislature or the drafters of s 43 that parties might obtain a grant of leave to be legally represented by, as here, filing excessively lengthy and unnecessary submissions about applications which are, themselves, contrary to the spirit and intendment of the QCAT Act.
[15] Unfortunately, however, if the parties are now deprived of their legal representation they might legitimately claim that they are so confused and uncertain about what ought to happen in the matter, and how it should be advanced, that they require assistance simply to proceed with it. The sheer volume of submissions filed by the lawyers would make a submission on those lines irresistible.
[16] In this disappointing and unsatisfactory state of affairs it seems that no sensible course is open but to allow the parties to continue with their present legal representation.
[17] The only material question arising out of the circumstances in which Mr Martin filed his application for leave to appeal is whether or not it was out of time, and whether or not he should have an extension.
[18] Under s 143(3) an application for leave to appeal must be filed within 28 days after the ‘relevant day’. Leave is required unless a party’s appeal is limited to a question or questions of law: s 142. Mr Martin and his lawyers appear to accept that – as the grounds advanced in his original application suggest – he seeks leave to appeal on questions of fact or, at best, mixed questions of law and fact, so leave is necessary.
[19] The ‘relevant day’ is the day ‘… the person is given written reasons for the decision being appealed against’. According to affidavit material filed on Mr Martin’s behalf his former lawyers obtained a copy of a transcript of part of the hearing including, at least, the part containing the Member’s reasons for his decision around 14 September 2010. Other evidence suggests, however, that the Tribunal sent the reasons to those former lawyers around 10 September 2010. The application for leave to appeal was received at QCAT, according to date stamps, on either 11 or 13 October 2010. If the ‘relevant day’ was 10 September then the appeal was one day, or perhaps three, out of time. If not, it was within the 28 days.
[20] Under s 61 QCAT has power to extend time limits, unless doing so would cause prejudice or detriment which cannot be remedied by an appropriate order for costs or damages. It is plain from the passages from the QCAT Act mentioned earlier that the legislature requires the Tribunal, including this Appeal Tribunal, to focus primarily upon issues of fairness and justice, in the context of economy, informality and speed.
[21] The delay here was brief – a matter, at worst, of a few days. If it is necessary, Mr Martin is granted an extension of time to file his application for leave to appeal.
[22] That is not, regrettably, the end of the matter. Ms Gosdschan’s lawyers advance another highly technical point, and assert that Mr Martin’s application should be struck out because leave to appeal was required but was not sought in Mr Martin’s original application which purported to be an actual appeal. He has since sought leave to amend the application, to seek leave.
[23] The application to strike out is misconceived, and contrary to the obvious spirit of the QCAT Act. It smacks of the worst kind of legalism in that it entirely ignores the justice of the proceeding or the real issues in it and focuses solely upon matters of process, and form – when, again, the prevailing legislation strongly turns its face against conduct of that kind.
[24] The proceeding must now be salvaged, and put back on a path which reflects the intention of the legislation. That must involve dealing with the application for leave to appeal in accordance with the tenor of the Act. That can be achieved by having Mr Martin file submissions in support of his application for leave to appeal (and his appeal, if leave is granted) and for the respondent to file hers in response. The orders made on the front sheet of this decision are directed to that end.
[25] Following that, the Appeal Tribunal will decide Mr Martin’s applications on the papers.[1]
[1]The phrase ‘on the papers’ means without any oral hearing, and solely on the strength of written submissions: QCAT Act, s 32.
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