Ormond v Simmons
[2011] QCATA 73
•4 April 2011
| CITATION: | Ormond v Simmons [2011] QCATA 073 |
| PARTIES: | Mr Wayne Rodney Ormond (Applicant/Appellant) |
| v | |
| Mr Sean Anderson Simmons (Respondent) |
APPLICATION NUMBER: APL278-10
| MATTER TYPE: | Appeals |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Richard Oliver, Senior Member |
DELIVERED ON: 4 April 2011
DELIVERED AT: Brisbane
ORDERS MADE: Leave to appeal is refused.
| CATCHWORDS: | Minor Civil Dispute – failure to attend hearing – decision in default of appearance – whether a denial of natural justice – no error demonstrated Queensland Civil and Administrative Tribunal Act 2009, ss 139(5); 142(3) QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Breezeway Developments Pty Ltd v ADG Hydrolics [2010] QCATA 69 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
The appellant is the owner of a Rolls Royce Corniche sedan motor vehicle. In or about January 2008 he asked Mr Simmons to carry out some restoration work on the vehicle. Mr Simmons agreed to do the work and when finished he sent an invoice to Mr Ormond for $13,000. Mr Ormond did not pay the invoice. Mr Simmons then commenced a proceeding in the Tribunal to recover the cost of the work done by him.
Mr Ormond did not file a response to the minor civil dispute proceeding and as a consequence, Mr Simmons applied for and obtained a decision in default. However after an application was filed on 9 July to set it aside, the Tribunal ordered that the default decision be set aside and that a response be filed. Subsequent to this response being filed, the parties, in the usual way, were required to attend a mediation. The matter was not resolved at mediation and hearing notices were issued.
Mr Ormond did not attend the hearing and the proceeding was heard in his absence. As a consequence, the Tribunal made an order on 8 October 2010 that Mr Ormond pay to Mr Simmons the sum of $13,000 together with a filing fee of $250.
Mr Ormond then applied to have the proceeding reopened pursuant to section 138 of the QCAT Act. That application was considered by a Tribunal Member on 22 October 2010 and was refused. That decision is not, and cannot be the subject of appeal.[1] Mr Ormond then filed an application for leave to appeal or appeal on 26 October 2010. Leave is necessary.[2] It is the Tribunal’s decision of 8 October 2010 ordering Mr Ormond to pay Mr Simmons $13,250 which is the subject of this appeal.
[1] QCAT Act, s 139(5).
[2] QCAT Act, s 142(3).
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 [13].
[5] QUYD Pty Ltd v Marvass Pty Ltd (supra).
[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.
The grounds of appeal prepared by Mr Ormond’s solicitors fail to identify any error on the part of the Tribunal Member who made the decision on 8 October 2010. The grounds seek to argue the substantive defence to the claim and contend that Mr Simmons overcharged for the work done and was negligent in the performance of that work. The grounds also contend that Mr Ormond was not given an opportunity to be heard at the hearing, suggesting a denial of natural justice. It is only the last ground that could constitute an error of law resulting in a grant of leave.
Has there been a denial of natural justice? The Notice of Hearing forwarded to Mr Ormond’s address states:
“If you do not attend the hearing, the Tribunal may hear and decide the matter in your absence, including making orders against you.”
Both parties are warned by this notice of the consequences of not attending the hearing. A similar warning is issued on the notice to attend mediation.
Even though Mr Ormond contends all mail should have been addressed to his solicitor’s address noted on the Response, the minor civil dispute file indicates that all other notices were sent to his home address, which he has obviously received, including the default decision, notice of meditation and the decision setting aside the default decision. Mr Ormond’s only excuse for not attending the hearing is that notice of the hearing should have gone to his solicitors and not to his home address. These were matters considered on the application to reopen. This of itself does not constitute a denial of natural justice because Mr Ormond ought to have known of the hearing date. As the President observed in Breezeway Developments Pty Ltd v ADG Hydrolics[7] the statutory regime[8] places obligations upon parties themselves: to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’s resources for the resolution of disputes serve, as the High Court has recently observed ‘…the public as a whole, not merely the parties to the proceedings’.
[7] [2010] QCATA 69.
[8] The QCAT Act.
The decision arrived at by the learned Tribunal Member was clearly open on the material before him in the minor civil dispute file and therefore, no error has been demonstrated in arriving at the decision he did. Mr Ormond was given sufficient notice of the hearing and it was his responsibility to attend. What Mr Ormond is now seeking to do, through the appeal process, is to have the substantive application considered on its merits to have it remitted back for hearing. Although this approach is appropriate for setting aside a default decision, it does not meet the test for obtaining leave to appeal. Mr Ormond had his opportunity to attend the hearing and did not avail himself of it.
As the grounds of appeal, on their face, do not identify any procedural error, or error of law on the part of the Tribunal, nor is any apparent, leave to appeal must be refused.
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