Premila Pty Ltd v Monaghan
[2021] QCATA 86
•8 July 2021
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Premila Pty Ltd v Monaghan [2021] QCATA 86
PARTIES:
PREMILA PTY LTD ACN 606348190
(appellant)
v
PHILLIP MONAGHAN
(respondent)
APPLICATION NO/S:
APL333-20
ORIGINATING APPLICATION NO/S:
MCDO 65/20
MATTER TYPE:
Appeals
DELIVERED ON:
8 July 2021
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member Hughes
ORDERS:
1. Leave to appeal granted.
2. The appeal is allowed.
3. The Tribunal’s orders of 23 October 2020 are set aside.
4. The application is remitted for rehearing before a differently constituted Tribunal.
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – DENIAL OF NATURAL JUSTICE – where appellant and its lawyer did not attend a hearing adjourned at their request to a date convenient to them – where they did not inform the Tribunal they would not attend – where Tribunal led into error by awarding more than amount in application –– where errors of law for which leave should be granted to correct substantial injustice
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 13, s 28, s 64, s 142
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39
Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69
Cachia v Grech [2009] NSWCA 232
Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226
Crime and Corruption Commission v Deputy Commissioner Stephen Gollschewski [2014] QCAT 359
Exeter Nominees Pty Ltd v Roar Marketing Concepts Pty Ltd [2020] QCATA 118
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
Kioa v West (1985) 159 CLR 550
Laker Paint Company Pty Ltd v Bray [2013] QCATA 90
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
Nicholls & Anor v Kline Industries International Pty Ltd [2018] QCATA 123
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
The Pot Man Pty Ltd v Reaoch [2011] QCATA 318
Tilecorp Pty Ltd v Pinnacle Seal Pty Ltd [2011] QCAT 52
W&E Carlsen Builders v Tressider [2014] QCAT 131
Wimberley v Misevski [2013] QCATA 223REPRESENTATION:
Applicant:
D Evans of Evans Brandon Family Lawyers
Respondent:
Self-represented
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
What is this appeal about?
Premila Pty Ltd decided not to attend a hearing that had been adjourned at its request to a more convenient date.[1] It did not inform the Tribunal it would not attend the adjourned hearing. The Tribunal attempted to call Premila on the day of the hearing without success.[2] Premila has now applied for leave to appeal the Tribunal’s orders made in its absence.
[1]Letter Evans Brandon Family Lawyers dated 10 September 2020; Decision dated 11 September 2020.
[2]Transcript dated 23 October 2020, page 1-4, lines 5 to 9.
What obligations do parties have to the Tribunal and to each other?
Parties and their legal representatives[3] who unilaterally decide not to attend a hearing - without informing the Tribunal - not only risk adverse orders, but unnecessarily incur upon the Tribunal’s limited resources :
The statutory regime under which QCAT operates 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 are in high demand and serve, as the High Court has recently observed in relation to court resources, ‘… the public as a whole, not merely the parties to the proceedings’. Finality in litigation is highly desirable, because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties.[4]
[3]The Tribunal granted leave for both parties to be legally represented by Decision dated 11 August 2020.
[4]Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226, [13], citing with approval Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 217.
This is what has occurred here.
Premila provided no explanation for its failure to attend the hearing other than the following:
… parties make decisions about the conduct of their litigation based on the quantum of the claims, every day of the week, often on commercial terms and taking into account issues subjective to them, however, such a decision (if it is to be critiqued at all) was made when the total sum claimed was known to be less than $2,500 and where Premila Pty Ltd is based in Beaudesert, its lawyer at the Gold Coast and there being family law proceedings between its director and the Applicant’s son (who were married and where (sic) financial issues are before the Federal Circuit of Australia).[5]
[5]Written Submissions of Applicant for Stay dated 12 November 2020.
Apart from an apparent lack of courtesy in not notifying the Tribunal, this submission does not address the inconvenience to the Tribunal and other parties.[6] It does not consider the incursion upon the Tribunal’s limited resources due to the ongoing action that could have been curtailed, if not averted, at the original hearing had Premila attended. It does not align with the Tribunal’s statutory mandate to conduct proceedings in a way that is fair, just, economical, informal and quick.[7]
[6]See for example Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226; The Pot Man Pty Ltd v Reaoch [2011] QCATA 318; Harris v Foxworth Pty Ltd [2013] QCATA 133; Wimberley v Misevski [2013] QCATA 223; W&E Carlsen Builders v Tressider [2014] QCAT 131.
[7]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b).
The appeal process is not an opportunity for a party to again present their case.[8] The Tribunal has already determined that missing a date through inadvertence is not a reasonable excuse.[9] As the then President of the Tribunal, Justice Wilson, explained:
In the context of the legislation and the demands upon public resources like those which fund QCAT it is not unreasonable to impose, upon a party, an expectation and an obligation that it will ensure it acts in its own best interests, or accept the consequences; and that mistakes like those made here, while attracting sympathy, can no longer prevail over statutory and practical constraints on available resources for dispute resolution.
When these matters are appreciated, it will be seen that a party’s own fundamental error in misreading a document cannot be categorised as a ‘reasonable excuse’ for the purpose of revisiting proceedings which were otherwise correctly and legitimately brought to an end.[10]
[8]Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39, [9].
[9]Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69; Tilecorp Pty Ltd v Pinnacle Seal Pty Ltd [2011] QCAT 52; Laker Paint Company Pty Ltd v Bray [2013] QCATA 90. See also Crime and Corruption Commission v Deputy Commissioner Stephen Gollschewski [2014] QCAT 359, [35] where the Tribunal reopened the application but specifically declined to decide whether the application would have succeeded on administrative error alone.
[10]Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69, [12] - [13].
His Honour’s rationale applies a fortiori where a party’s failure to engage with the Tribunal process is the result of a deliberate choice. Premila could have alerted the Tribunal to its concerns in its initial request for an adjournment. Alternatively, its concerns could have been addressed by applying to attend remotely. At the very least, Premila could have notified the Tribunal. However, it did none of these.
Premila’s failure to seek to attend the hearing by alternative means, or at least notify the Tribunal of its intention to not attend, is without valid reason.
Should the Tribunal grant leave to appeal?
After Premila did not attend the adjourned hearing, the Tribunal made these Orders about Phillip Monaghan’s claim under a loan agreement with Premila:
1. The parties to the loan agreement the subject of these proceedings are the Applicant and the Respondent.
2. By 4 November 2020 the Respondent is to pay the Applicant the sum of $6,497.72, being the loan payments due for the months of June, July, August, September, October, November and filing fee.
3. If the Respondent fails to comply with the above order the balance of the loan is due and payable by the Respondent to the Applicant in the amount of $18,997.22.
Unfortunately, without the benefit of Premila attending, the Tribunal was led into error by awarding more than the amount claimed. Mr Monaghan’s application claimed $2,124.84 and added:
I want the overdue payments bought (sic) up to date and the monthly payments reinstated or alternatively the debt paid out. I know that the company has in excess of $40,000 in the bank account.[11]
[11]Application for minor civil dispute – minor debt dated 7 July 2020.
Because this is an appeal from a minor civil dispute, leave is required.[12] In determining whether to grant leave, the Tribunal will consider established principles:
(a)whether there is a reasonably arguable case of error in the primary decision;[13]
(b)whether the appellant has a reasonable prospect of substantive relief;[14]
(c)whether leave is needed to correct a substantial injustice caused by some error;[15] and
(d)whether there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.[16]
[12]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a).
[13]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[14]Cachia v Grech [2009] NSWCA 232, 2.
[15]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[16]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 577, 580.
The Tribunal must act fairly and according to the substantial merits[17] of the case and observe procedural fairness.[18] Although the notion of procedural fairness is flexible, it fundamentally requires that a party is entitled to know the case against them and be given a reasonable opportunity to respond.[19] The Appeal Tribunal does not accept Mr Monaghan’s submission that his application was broad enough to put Premila on notice. Premila did not attend a hearing it believed was to determine a claim for an amount owing at the date of filing the application - not for later alleged defaults.
[17]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(2).
[18]Ibid, s 28(3)(a).
[19]Kioa v West (1985) 159 CLR 550; Nicholls & Anor v Kline Industries International Pty Ltd [2018] QCATA 123.
The alleged amount owing as at the date of filing the application was $2,124.84. Before making awards exceeding this, the Tribunal would need to amend the amount claimed to encompass later alleged defaults upon application or on its own initiative.[20] The Tribunal must also allow the parties to make submissions. In doing neither, the Tribunal was led into error by denying Premila procedural fairness:
Whilst Tribunal resources are finite and it is expected that hearings will be concluded in a single sitting if possible, in circumstances where there is a substantial increase in claim made without explanation why the amendment is brought so late and why the other party has not been apprised of that before hearing, usually enquiry will be warranted to ensure the respondent has not been caught by surprise.[21]
[20]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 64.
[21]Exeter Nominees Pty Ltd v Roar Marketing Concepts Pty Ltd [2020] QCATA 118, [20].
The award of $18,997.22 was not owing as a liquidated amount. It was erroneously awarded as accelerated “damages” payment, based on a contingent future event without an acceleration clause.[22] The Tribunal was also led into error by combining two orders for a total of more than the prescribed jurisdictional limit of $25,000.00.[23]
[22]Transcript dated 23 October 2020, page 1-9, lines 21 to 46; page 1-10, lines 1 to 14.
[23]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 13(2).
Leave should be granted to correct a substantial injustice from these errors of law. Of course, Premila’s attendance at the original hearing may well have attenuated the need for this appeal and resulting rehearing with attendant costs. Instead, it could simply have made its submissions in this appeal at the original hearing.
Leave to appeal is granted and the appeal is allowed. The matter is remitted for rehearing before a differently constituted Tribunal.
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