Once Credit Pty Ltd v Alston

[2011] QCATA 109

CITATION: Once Credit Pty Ltd v Alston [2011] QCATA 109

PARTIES:	Once Credit Pty Ltd (Applicant/Appellant)
v
Ken Alston (Respondent)

APPLICATION NUMBER:   APL062-11

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON: 16 May 2011

DELIVERED AT: Brisbane

ORDERS MADE:    

Application for leave to appeal refused

CATCHWORDS: 

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where it was alleged that the respondent had defaulted in payments under a loan agreement – where the applicant did not send any documentation or information about the application and denied that he knew that the matter was coming on for hearing – where the Magistrate at first instance found that the applicant had given no proper basis for its inability to proceed and refused a request for an adjournment – where the Magistrate dismissed the claim – where the applicant now seeks leave to appeal that decision – whether leave to appeal should be granted  

Queensland Civil and Administrative Tribunal Act 2009, ss 3, 4, 13, 28, 29

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

1. Once Credit Pty Ltd began proceedings in QCAT’s Minor Civil Disputes jurisdiction at Cairns in August 2010, claiming over $6,000 from Mr Alston for monies allegedly lent to him under an agreement of 17 March 2010 the full particulars of which, the application form says, had already been supplied to him.  It is alleged that he defaulted in payments under the agreement.

2. Mr Alston filed a response in which he asserted that the application should be dismissed because of alleged misrepresentations, and fraud.

3. Later, a company called George Laurens (GC) Pty Ltd filed an application seeking leave to represent Once Credit.  Leave was granted, and the decision was notified to George Laurens by a letter from the Registrar of 23 November 2010.

4. While these things were occurring the Registry also sent both parties a notice advising that the hearing of the application would take place at 9 am on 9 December 2010; but, on 10 December, a notice was sent to both parties advising a new hearing date at 2:15 pm on 17 January 2011. 

5. An application had also been filed on behalf of Once Credit, the tribunal file shows, seeking leave to attend the hearing by telephone.  That application was also granted, and notified in a letter from the Registrar of 22 December 2010.

6. The original notice of hearing contained these words, prominently placed about the middle of the page:

   This matter will be heard by the Tribunal at the date and time stated in this notice.  If you do not attend the hearing, the Tribunal may hear and decide the matter in your absence, including making orders against you.

7. The matter came on for hearing before a Magistrate, sitting as a QCAT Ordinary Member at Cairns, at the appointed time of 2:15 pm on 17 January 2011.  In accordance with the arrangements for Once Credit to appear by telephone, a Mr Alford came on the telephone line to represent it. 

8. The transcript shows the learned Magistrate sought particulars of and information about the application including, in particular, any documents relative to Once Credit’s claim.  Mr Alford acknowledged he had not sent any but also, the transcript shows, denied that he knew the matter was coming on for hearing or that he was aware of any obligation to be in a position such that Once Credit could prove its case against Mr Alston.

9. The learned Magistrate, unsurprisingly, found the submission unimpressive and unpersuasive.  He reminded Mr Alford of the notices mentioned above.  He did not remind him, as he might have, that QCAT’s website gives detailed information about what will occur on the day of the hearing:

   Hearing
   The aim of the hearing is to make a final decision about your case. It is usually in your best interest to come to the hearing if the application has been made against you.

   Be prepared
   You need to bring every document, invoice, receipt, quotation and or other piece of evidence that you are relying on and give them to the members or adjudicators at the hearing.  Make sure that you are organised and have evidence to support the main points of your argument….

   During the hearing

   Evidence may be presented and submissions may be made.  You and your witnesses may be required to swear an oath on a bible or make an affirmation that you promise to tell the truth when you give evidence.

   You and your witnesses may also be asked questions, called cross-examination, by the other party.  Members or adjudicators who decide the matter may also ask you questions.

   The person who made the original application to QCAT (the applicant) and their witnesses will be heard first.  The other party (the respondent) will have the opportunity to cross-examine the applicant and the applicant’s witnesses.  The respondent may then present its own witnesses, who may then be cross-examined by the applicant.  If there is a good reason why a witness cannot come to the hearing, you should bring an affidavit sworn by the witness setting out the evidence.

[10]  Mr Alford then sought an adjournment, which Mr Alston opposed and the learned Magistrate refused, saying:

…the applicant has given no proper basis for its inability to proceed today, apart from the fact that it thought that the tribunal would assist in the preparation of this hearing today.  I am not satisfied that it’s an appropriate basis for an application for an adjournment of the hearing.  The application for an adjournment is refused.

[11]  There is no reason to doubt that Once Credit had notice of the hearing.  Mr Alford’s submission was, rather, (according to the transcript) that he had expected that Once Credit would have received a ‘…separate document advising how we need to respond’.[1] Nothing in the papers associated with the application, or the QCAT Act or Rules, provides any basis for that expectation. Rather, the forms themselves and QCAT’s published material make it clear that a party should, at a hearing, be ready to prove its case.

[1]        Transcript, p 7.

[12]  In any event there was no explanation how or why Once Credit did not understand – as it plainly should have – what would be required of it when the matter came on for a hearing.

[13] Section 29 of the QCAT Act does place an obligation upon the Tribunal to take all reasonable steps to ensure that parties understand its practices and procedures. In circumstances where the original notice of hearing contains the plain warnings set out earlier and the web site contains a full explanation of the hearing process the applicant here had, again, no reasonable or persuasive excuse for its failure to be ready.

[14]  The only question is whether or not the learned Magistrate was wrong when he exercised the discretion to refuse Once Credit’s request for an adjournment. 

[15] The way that discretion should be exercised is to be considered, here, in light of the QCAT Act and its application in the Minor Civil Disputes jurisdiction, including the emphasis the Act places upon economical, informal and quick procedures, and the early economical resolution of disputes: ss 3, 4 and 28. Under s 13(1) the Tribunal must also, in Minor Civil Dispute proceedings, make orders that it considers fair and equitable to the parties including, if the Tribunal considers it appropriate, orders dismissing the application.

[16]  In this statutory framework it cannot be said that the learned Magistrate’s decision to dismiss a request for an adjournment from an applicant who had simply ignored its obligation to be ready for its case to proceed at the appointed time for hearing, can be said to involve any error.

[17]  The application for leave to appeal is, for these reasons, refused.