Nortask Pty Ltd v Inwood t/as Mt Isa Fleet Maintenance Services
[2014] QCATA 59
•1 April 2014
| CITATION: | Nortask Pty Ltd v Inwood t/as Mt Isa Fleet Maintenance Services [2014] QCATA 59 |
| PARTIES: | Nortask Pty Ltd (Appellant) |
| v | |
| Mr Dane Robert Inwood t/as Mt Isa Fleet Maintenance Services (Respondent) |
| APPLICATION NUMBER: | APL213-13 APL261-13 |
| MATTER TYPE: | Appeals – Miscellaneous Applications |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Thomas, President |
| DELIVERED ON: | 1 April 2014 |
| DELIVERED AT: | Brisbane |
| ORDER MADE: | The applications are refused. |
| CATCHWORDS: | APPEALS – PROCEDURE – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE – CORRECTION UNDER SLIP RULE – where applicant filed application for leave to appeal – where directions made requiring parties to file further materials, or notify tribunal if no further material was to be filed – where if directions weren’t complied with, direction made that the application for leave to appeal would be dismissed without further order – where the applicants failed to comply with directions and application dismissed – whether the decision to dismiss the application for leave to appeal is attended by error Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, 135 |
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 (Qld) (QCAT Act).
REASONS FOR DECISION
Background
An application for leave to appeal or appeal was filed by the applicant on 17 May 2013. The application contained, in part C, “grounds for appeal”, but no written submissions.
In paragraph 7, the “grounds for appeal” indicated that were the application for leave to appeal to proceed on documents rather than by oral argument, the applicant “seeks to file further written submissions in support”.
On 21 August 2013, Senior Member Peta Stilgoe OAM directed:
2.Nortask Pty Ltd must establish that the application for leave to appeal or appeal has been given to Mr Dane Robert Inwood t/as Mount Isa Fleet Maintenance Services in compliance with Rule 96 by filing an Affidavit of Service or a form of acknowledgement from each other by:
4:00pm on 30 August 2013.
3.Nortask Pty Ltd must file in the registry one (1) copy and deliver to Mr Dane Robert Inwood t/as Mount Isa Fleet Maintenance Services one (1) copy of all written submissions in support of the application for leave to appeal and any further submissions in support of the appeal that Nortask Pty Ltd wishes to rely upon party or advise that no further material will be filed, by:
4:00pm on 19 September 2013.
4.Mr Dane Robert Inwood t/as Mount Isa Fleet Maintenance Services must file in the registry one (1) copy and give to Nortask Pty Ltd one (1) copy of all submissions in reply to both the application for leave to appeal and any submissions filed in support of the appeal within 28 days after the receipt by Mr Dane Robert Inwood t/as Mount Isa Fleet Maintenance Services of Nortask Pty Ltd’s submissions.
5.If Nortask Pty Ltd does not comply with paragraphs 2 and 3, by the said date the application is dismissed without further order.
On 30 August 2013, an affidavit of service of Benjamin James Gouldson was filed, in compliance with Direction 2.
On 25 September 2013 Senior Member Peta Stilgoe OAM dismissed the leave to appeal or appeal in accordance with direction 5 of the directions made on 21 August 2013.
The applicant has filed an application for miscellaneous matters seeking the following directions:
1.That the decision of Senior Member Stilgoe on 25 September 2013 to dismiss the applicant’s application for leave to appeal or appeal be vacated.
2.That a fresh decision on the applicant’s application for leave to appeal or appeal be made on the basis that the applicant has complied with Senior Member Stilgoe’s directions 2 & 3 of 21 August 2013.
Applicant’s submissions
An affidavit of Harrison Jack Humphries was filed in support of this application for miscellaneous matters. The affidavit exhibits an email from Mr Harrison Humphries to QCAT which, according to the affidavit, is said to set out “the reasons why the directions sought should be made”.
On 25 February 2014, the applicant forwarded a further email to QCAT, setting out further submissions.
After reviewing each of those sources, it seems that the applicant’s submissions are:
1.In compliance with Direction 2, affidavits of service were filed by post and fax on 29 August 2013.
2.In partial compliance with Direction 3, the applicant filed the application for leave to appeal or appeal by post on or about 15 May 2013, and this application included written submissions in support of the application.
3.Due to an oversight only identified on 19 February 2014 the applicant did not expressly advise the Tribunal that no further material would be filed in support of the application for leave to appeal or appeal. It was the oversight of Clifford Gouldson Lawyers, not the applicant’s, that lead to the applicant’s partial compliance with Direction 3.
4.By the applicant not filing any further material by 19 September 2013 the Tribunal ought to have implied from the applicant’s silence that the applicant was relying solely on the material it had already filed (i.e. the grounds contained in the application for leave to appeal or appeal on or about 15 May 2013). Such implication would be consistent with the informality and flexibility prescribed by sections 3(b) and 4(c) of the Queensland Civil and Administrative Tribunal Act 2009 and section 3(1)(a) and 3(1)(b) and 3(2)(b)(ii) of the Queensland Civil and Administrative Tribunal Rules 2009.
5.There has been no prejudice to the respondent in either matter because of the applicant’s partial compliance with direction 3.
6.For all the reasons it was the oversight of Clifford Gouldson Lawyers and not the applicant’s that caused the partial compliance with Direction 3 and the applicant’s applications for leave to appeal or appeal and/or for miscellaneous matters should not be prejudiced by its representatives error.
Respondent’s submissions
In response, the respondent submits:
1.The applicant failed to comply with Direction 3 as the applicant failed to file and deliver to the respondent its written submissions in support of the application for leave to appeal, or advise that no further material would be filed by 4pm on 30 August 2013.
2.The grounds contained in the application itself are simply grounds of appeal – they are not detailed reasons supported by law, or adequate explanation capable of persuading the Senior Member. Such grounds cannot therefore be considered to be “written submissions” as claimed by the applicants solicitors.
Discussion
The applicant invited the Tribunal, on its own initiative, to correct the decisions of 25 September 2013 pursuant to section 135(2) of the QCAT Act, on the basis that the decisions contain one or more of the mistakes, errors and/or miscalculations stated in sections 135(1)(a), (b) and/or (c) of the QCAT Act.
Section 135 to which the applicant refers deals with correction of mistakes. Subsection (1) provides that:
(1)The tribunal may correct a decision made by it in a proceeding if the decision contains –
(a) A clerical mistake; or
(b) An error arising from an accidental slip or omission; or
(c) A material miscalculation of figures or a material mistake in the description of a matter, person or thing mentioned in the decision; or
(d) A defect of form.
The decision by Senior Member Stilgoe OAM was that leave to appeal or appeal be dismissed. The reasons for decision of 25 September 2013, and the prerequisites to the dismissal under Direction 5 relate to a failure to comply with Directions 2 and 3. Failure to comply with either of the Directions lead to dismissal of the applications pursuant to Direction 5.
The applicant admits that it did not, as required by Direction 3, advise that no further material would be filed. The grounds contained in the application were not written submissions as required by Direction 3. Failure to comply with Direction 3 was an adequate basis on which Senior Member Stilgoe OAM could make the decision.
Order
The applications are refused.
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