Mepham v Lonestar Earthmoving Pty Ltd
[2012] QCATA 170
•10 September 2012
| CITATION: | Mepham v Lonestar Earthmoving Pty Ltd [2012] QCATA 170 |
| PARTIES: | Derek Mepham (Applicant/Appellant) |
| v | |
| Lonestar Earthmoving Pty Ltd trading as HSS Highland Spraying Services (Respondent) |
| APPLICATION NUMBER: | APL372-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 10 September 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – Whether spraying work performed satisfactorily – Whether monies owing for work performed – Whether Tribunal had jurisdiction to hear a counter claim for a minor debt – where party failed to attend hearing and provided no explanation as to why – no procedural defect – leave to appeal not granted Queensland Civil and Administrative Tribunal Act 2009 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Cachia v Grech [2009] NSWCA 232 |
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
Highland Spraying Services[1] undertook some spraying work for Mr Mepham. It claimed he did not pay for the work in full and brought proceedings in QCAT’s minor civil disputes jurisdiction for the balance of $11,522.50.
[1] The former trading name of Lonestar Earthmoving Pty Ltd.
The matter came on for hearing before a Magistrate, sitting as a QCAT Member, in Emerald on 22 August 2011. Mr Mepham, who had earlier filed a Response denying liability and alleging that, in truth, Highland owed him money, did not appear at the hearing.
After taking evidence from Highland’s representatives the learned Magistrate found that the work had been performed satisfactorily and the money was due and owing and ordered that Mr Mepham pay $11,777.50, plus costs.
Mr Mepham has sought leave to appeal that decision. By direction of the Appeal Tribunal his application for leave (and the appeal, if leave is granted) are to be determined on the papers and both parties have filed and exchanged written submissions.
Mr Mepham’s submissions repeat, in considerable detail, claims he made in the Response he filed in the original proceedings. They are accompanied by large bundles of photographs which, he says, show that Highland did not perform the spraying work satisfactorily. His grounds of appeal assert that he was unable to attend the hearing because he was involved in Family Court proceedings.
He also says that because he was unable to lodge a counter-claim he began proceedings against Highland for $22,522.50, plus interest – in effect, for the full amount of Highland’s invoice.
Counter-claims, in the form of counter-applications, can be brought in QCAT proceedings but not in claims for minor debts: QCAT Rule 48. The learned Magistrate could not, therefore, deal with Mr Mepham’s purported counter-application in the course, or at the hearing, of Highland’s minor debt application.
There is nothing in the file to indicate that Mr Mepham has brought separate proceedings against Highland – something he would of course, be entitled to do if he wished to pursue his claim against the firm.
The requirement, in the minor civil disputes jurisdiction, that a party wishing to appeal the original decision must first obtain leave[2] reflects the Queensland’s Parliament clear intention that the jurisdiction should produce speedy and final determinations, and that parties should not have an automatic right of appeal. That is why Parliament inserted this additional provision, requiring that a party dissatisfied with the original decision could not appeal without first establishing a proper ground for a grant of leave to appeal.
[2] QCAT Act, s 142(3)(a)(i).
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?[3] Is there a reasonable prospect that the applicant will obtain substantive relief?[4] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[5] 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?[6]
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4] Cachia v Grech [2009] NSWCA 232 at 2.
[5] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[6]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.
Mr Mepham’s written submissions do not attempt to address these matters. Rather, he does no more than raise, again, the factual disputes and assertions he might have put before the learned Magistrate had he appeared at the hearing.
Importantly, he makes no attempt to explain why he did not attend. The Court file shows that he received a notice of the hearing which was posted to him on 26 July 2011, just under a month before the scheduled hearing date. He does not claim that he did not receive the notice. He took no steps to seek an adjournment, or to appear remotely by telephone. The QCAT Act, Rules and Practice Directions (and website) contain provisions and information which would have alerted him to those alternatives, had he consulted them.
The QCAT website also contains detailed information about these matters, including reference to forms he might have completed and filed seeking an adjournment or to appear by telephone. There is no evidence he did any of these things, and he does not claim to have done so.
The transcript of the proceedings before the learned Magistrate shows that he took careful steps to ensure that Highland proved its claim to the necessary degree, and at the end of the hearing he gave oral reasons for his decision which properly align with that evidence.
It cannot be said, in short, that there was any procedural defect arising in connection with hearing or Mr Mepham’s non-attendance which might give rise to a concern that ordinary principles of natural justice, or procedural fairness, were denied to him.
Otherwise, as can be seen from the discussion of the principles which are considered in an application for leave to appeal, he has raised no grounds warranting a grant of leave. The fact that he is dissatisfied with the decision and believes he can produce evidence in support of his claim that Highland’s work was not performed satisfactorily is not, in the circumstances surrounding this matter, a proper ground upon which he can obtain a grant of leave to appeal.
The application for leave to appeal must be refused.
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