Rigney v Murdoch

[2010] QCATA 81

CITATION: Rigney v Murdoch [2010] QCATA 81

PARTIES:	Christopher Rigney (Applicant/Appellant)
v
Grahame Murdoch  (Respondent)

APPLICATION NUMBER:            APL155-10               

MATTER TYPE: Appeals

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON:   22 November 2010

DELIVERED AT:   Brisbane

ORDERS MADE:  Application for leave to appeal is refused

CATCHWORDS : 

MINOR CIVIL DISPUTE – LEGAL REPRESENTATION – LEAVE TO APPEAL INTERLOCUTORY ORDER –  where appellant alleges he was contracted to render services for the respondent – where the respondent is overseas – where leave was granted for the respondent to be legally represented – where appellant alleges he will be disadvantaged – whether adjudicator erred in exercising discretion to grant legal representation to respondent

Queensland Civil and Administrative Tribunal Act 2009, s 142(3)

APPEARANCES and REPRESENTATION (if any):

By direction the matter was dealt with on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009

REASONS FOR DECISION

1. Mr Rigney commenced proceedings in QCAT’s Minor Civil Disputes jurisdiction alleging that Mr Murdoch owed him over $24,000.00 pursuant to an invoice rendered on 28 December 2009 for ‘consultative services’ relating to the provision of a ‘…complete network installation at an asset management business located in Bern, Switzerland’ in which Mr Murdoch is said to hold an interest.

1. Initially there was, apparently, some difficulty serving Mr Murdoch and an order for substituted service was made on 26 March 2010. In early May 2010 lawyers acting for Mr Murdoch filed a response to Mr Rigney’s claim, denying receipt of the invoice or any indebtedness under it, or otherwise.

1. An application was also filed by Mr Murdoch’s lawyers seeking leave to represent him, supported by an affidavit to the effect that he lives in Switzerland and is unable to return to Australia because he is ‘…currently caring for his ill partner’.

1. An order granting leave to Mr Murdoch to be represented in the Minor Civil Disputes proceedings was made by an adjudicator on 15 June 2010.

1. The matter subsequently went to mediation in late July 2010; the process was unsuccessful and since then the action has been ready to be set down for hearing.

1. Actual hearing has been delayed, however, by Mr Rigney’s application for leave to appeal the decision to allow Mr Murdoch to be represented. Mr Rigney has filed lengthy submissions seeking orders that the ‘…leave granted to the respondent be revoked’. He also sought a stay of the order appointing the representative. That application was refused. Other directions were made for an exchange of written submissions. Mr Rigney has complied, but neither Mr Murdoch nor his lawyers have filed anything.

1. This is, then, an application for leave to appeal an interlocutory order, in a Minor Civil Dispute proceeding. Under s 142(3) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) a decision that is not the Tribunal’s final decision in a proceeding, and a decision in a proceeding for a Minor Civil Dispute, cannot proceed to an appeal without leave. The decision here was not, of course, QCAT’s final decision – in the Minor Civil Dispute. The attempt to appeal faces, then, two statutory hurdles.

1. Section 43 of the QCAT Act provides that, in QCAT proceedings, parties will represent themselves unless the interest of justice require otherwise. Here, the learned adjudicator was presented with an affidavit in which a solicitor swore that his client resides in Switzerland; has been living there for approximately 32 years; and, is unable to return to Australia because of a need to care for his ill partner.

1. Mr Rigney has filed lengthy submissions in his support of his application for leave to appeal disputing these allegations. He also alleges that he was denied natural justice because he did not have the opportunity to respond to the application by Mr Murdoch’s solicitor.

1. Mr Rigney’s conduct for the proceeding, apparent from the documents he has filed himself in the Minor Civil Dispute proceedings and in the current application for leave to appeal, is surprising. His claim could have gone on to a hearing promptly after 29 July 2010 but he has chosen not to prosecute it at all and, in his appeal documents, has signified that he has quite content not to proceed with the matter unless and until Mr Murdoch returns to Australia. He also claims that he will be disadvantaged if the matter proceeds to a hearing and Mr Murdoch is legally represented but his submissions refer in some detail to the QCAT Act, and previous decisions of this Appeal Tribunal and of the High Court. In circumstances where the only issue in the Minor Civil Dispute proceedings appears to involve a simple question of credit – was there, or was there not, a contract between the parties? – it is very difficult to see how any disadvantage arises.

1. None of these factors warrant, or attract, a grant of leave to appeal. The obvious ground for the adjudicator’s decision granting leave to the respondent to be represented was his absence overseas, and that is a fact which Mr Rigney does not dispute. In light of that circumstance, no principle of natural justice has been offended.  Leave for legal representation is, in those circumstances, unsurprising. Leave to appeal is refused.