McColl v Synergy Living Cooroy Pty Ltd
[2013] QCAT 498
| CITATION: | McColl & Others v Synergy Living Cooroy Pty Ltd [2013] QCAT 498 |
| PARTIES: | Graham McColl Catherine Tyrie Walter Peacey Patricia Davies Dulcie Stevens Rodney Knell Elaine Knell Dennis Holmes Margaret Holmes Elizabeth Hudson Ken Lyell Rita Lyell Kathleen Davenport (Applicants) |
| V | |
| Synergy Living Cooroy Pty Ltd (Respondent) |
| APPLICATION NUMBER: | OCL093-12 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr B Cullen, Member |
| DELIVERED ON: | 18 September 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Applications for a direction requiring another party to produce a document or thing is refused. 2. The application for miscellaneous matters to replenish the applicant base is refused. 3. The application for a right of reply to a further submission is refused. 4. The venue for the hearing is changed from Brisbane to Maroochydore. 5. The matter is listed for hearing at Maroochydore at 9.30am on 3 October 2013. |
| CATCHWORDS: | MANUFACTURED HOMES SITE AGREEMENT DISPUTE – no entitlement to “replenish applicant pool”; the Tribunal does not require proof of identity of respondents to QCAT applications; there is no entitlement to a further-further reply. |
APPEARANCES and REPRESENTATION (if any):
This 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
On 9 August 2013 the Tribunal refused an application made by the applicants in a manufactured homes dispute to “replenish the applicant base;” to provide for a further right of reply; and to require the respondents in the matter to produce a document. The Tribunal has been asked to provide reasons for this decision.
On 18 July 2013, following a lengthy directions hearing, the Tribunal made directions providing for the exchange of statements of evidence, the exchange and filing of a list of witnesses required for cross examination, and then listed the matter for hearing.
Initially, the hearing was listed in Brisbane on 20 September 2013. However, as the applicants reside closer to Maroochydore, the Tribunal thereafter changed the venue for hearing to Maroochydore, and the date of the hearing to 3 October 2013.
There is no entitlement to “replenish the applicant base”
With regard to the application to “replenish the applicant base,” the Tribunal considers that it is an important matter of procedural fairness that the parties are identified at an early juncture in the proceedings. If the applicants wish to drum up support within the community to become parties to particular proceedings (and they are entitled to do so), the time to do so is prior to commencement of the proceedings, or early-on, not on the eve of hearing.
It is not uncommon in litigation for parties to withdraw, or even die, during the course of the proceedings. That has happened in these proceedings.
The desire to acquire further applicants appears to be motivated by a belief that more applicants will improve prospects. The Tribunal is only interested in the correct application of the law to a given set of facts, and any view that the numbers of applicants is somehow relevant to this process is misguided.
There is no entitlement to a “further-further” reply
When the Tribunal lists a matter for hearing, and provides directions, it should signify to the parties a need to gather all of their evidence, and provide it to both the Tribunal and the opposing party within the timeframe provided. The exchange of material between parties cannot continue indefinitely, and must come to a conclusion at some point prior to the hearing, such that both parties are on notice of the matters that each must respond to at the hearing.
In refusing to allow the applicants a further right of reply, I note that the applicants were ordered by the Tribunal to provide the respondent with copies of any further claims they sought to have heard no latter than 7 February 2013. The Tribunal then provided the applicants with an opportunity to reply to the respondents’ material filed in response, to be filed and served no later than 21 March 2013.
It is difficult then to see how, nearly 6-months down the track, the applicants have an entitlement to file further material in reply. It is now apparent that this matter will not resolve other than by way of a hearing, and the time has come for the parties to simply make their arguments, and for the applicants to run their case, as it has been presented.
It is arguable that, if the Tribunal were to allow the applicants the opportunity to file a further reply, that the respondent would be disadvantaged, as this would inevitably delay the hearing.
The Applicant’s suspicions about the Respondents’ identity
The applicants have rather unusually persisted with an argument relating to the identity of the respondent, suspicious that the respondent (and its representatives) is not who the respondent claims to be. The application made by the applicants seeking further disclosure of documents by the respondents relating to the respondents identity is, at best, ill-conceived. In their request, the applicants sought the following:
“Hitherto, the only statements of ownership have been Verbal, from Frances Wolff, purporting to be the Owner – and from Neville Dunne substantiating this. Despite Residents/Applicants requests for proof of ownership since 2009, none has been forthcoming. Transparency on this issue has been purposely blocked. Applicants are Home Owners at the Park; they have the right of transparency in this regard. Furthermore, this information would have a bearing on which Witnesses Applicants may call to a Final Hearing.
With respect, we submit that Affadavits (sic) in place of actual Certified Documents of Ownership, will not suffice.”
The dispute in this matter relates to, generally at least, the maintenance of common areas of the manufactured homes park in which the applicants reside. There are several other matters that have been raised - including issues relating to the security gate, water pump facility, maintenance of trees, mail service and waste collection.
The respondent in this matter, Synergy Living Cooroy Pty Ltd, has appeared at, and taken part in, the Tribunal process from the time that they were served with the QCAT application. The representative for the applicants, Mr Graham McColl, has made several demands for the respondents to produce identification documents at directions hearings in this matter, in addition to filing this application seeking proof of identity. That is, Mr McColl wants the Tribunal to order the respondent to prove that it really is the park owner.
When a responding party appears in the Tribunal in response to an application served on it, the Tribunal does not then confirm that they are actually the respondent. That they have appeared in response to the application is sufficient for the Tribunal’s purposes to assume that they are the party named in the application.
If there is a question relating to the identity of a respondent, such that an order of the Tribunal may prove difficult to enforce, that is a matter for the applicants to consider. Whilst the Tribunal might require disclosure in these sorts of circumstances, here the applicants point to nothing except their own suspicions.
For the Tribunal’s purposes, it is sufficient that the respondent has appeared, and has identified itself as the park owner, and has participated in the QCAT process. If the respondent was not properly a party to this application, then common sense would indicate that it would neither incur the expense of appearing before the Tribunal, nor would it be keen to invest its time in advancing this matter toward a final hearing. Mr McColl’s suspicions are, in this regard, counterintuitive.
Although the QCAT rules provide that, in the ordinary course of events, parties are to bear their own costs, these applications afford an example of the sorts of circumstances where the Tribunal might consider departing from section 100 of the QCAT Act.
Whilst the Tribunal recognises that the applicants are a group of self-represented people doing their level best to make a complaint in relation to their site agreements, in so doing, they should advance only the actual issues which the Tribunal can resolve. Otherwise, they put the respondent to unnecessary expense, in circumstances where they seek to obtain information which the Tribunal has already indicated at a directions hearing that they are not entitled to.
In other words, applicants must endeavour to focus on the main issues, and not allow the Tribunal process to become mired down in sideline disputes that ultimately increase the costs to the parties, and delay the resolution of the proceedings.
Orders
The Applications for a direction requiring another party to produce a document or thing is refused.
The application for miscellaneous matters to replenish the applicant base is refused.
The application for a right of reply to a further submission is refused.
The venue for the hearing is changed from Brisbane to Maroochydore.
The matter is listed for hearing at Maroochydore at 9.30am on 3 October 2013.
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