Robertson and Robertson v Airstrike Industrial Pty Ltd
[2011] QCAT 120
•30 March 2011
| CITATION: | Robertson & Robertson v Airstrike Industrial Pty Ltd [2011] QCAT 120 |
| PARTIES: | Mrs Janice Robertson and Mr Charles Robertson |
| v | |
| Airstrike Industrial Pty Ltd |
| APPLICATION NUMBER: | OCL041-10 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | 25 February 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Ms Michelle Howard, Member |
| DELIVERED ON: | 30 March 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | That the respondent’s application for dismissal of the application under section 48 of the Queensland Civil and Administrative Tribunal Act 2009 is refused. |
| CATCHWORDS: | APPLICATION FOR DISMISSAL – where non-compliance with a tribunal direction – where reasonable excuse Queensland Civil and Administrative Tribunal Act 2009, s 48 |
APPEARANCES and REPRESENTATION (if any):
The application was heard on the papers in the absence of the parties pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
The respondent seeks the dismissal of the applicants’ claim under section 48(2) of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act), together with costs. Both parties have provided written submissions about the application for dismissal. Directions were made for the application for dismissal to be decided by the tribunal on the papers.
The applicants’ claim arises from representations allegedly made to them by representatives of Airstrike Industrial Pty Ltd before the purchase of a commercial property under a contract entered into in October 2006. The contract settled in October 2007. The applicants made a claim through the Office of Fair Trading (OFT) for loss occasioned to them as a result of the alleged misrepresentations. OFT referred the claim to the tribunal in May 2010.
The tribunal subsequently held several directions hearings and a jurisdictional hearing. On 18 October 2010, I made directions including that the applicant file and serve any amended application by 9 December 2010.
Both parties acknowledge events as follows. An amended application was not filed and served by 9 December. On 14 December 2010, the respondent’s lawyers wrote to the applicants’ lawyers asking for the amended application. Telephone calls were also made by them on 16 and 17 December seeking a response to that letter. Further correspondence dated 21 December from the respondent’s lawyers to the applicants’ lawyers stated that if any amended application was not provided by close of business on 23 December 2010, further directions would be sought from the tribunal. A response from the applicant’s solicitors advised that the amended application would be provided by 23 December. However, it was not. On 5 January 2011, the respondent’s lawyers wrote to the tribunal, resulting in the listing of the directions hearing on 31 January 2011. On 31 January, the applicants advised the respondent’s lawyers that the amended application would be delivered by 14 February 2011. At the directions hearing, this application to dismiss the claim was made.
Section 48 of the QCAT Act
Section 48 of the QCAT Act applies if the tribunal considers that a party to the proceedings is acting in a manner that unnecessarily disadvantages another party to the proceeding.[1] Causing unnecessary disadvantage may occur in circumstances, among others, when a party does not comply with a tribunal order without reasonable excuse;[2] does not comply with the Act, an enabling Act or the rules;[3] asks for an adjournment as a result of doing either of these things;[4] causes an adjournment;[5] or vexatiously conducts the proceeding.[6]
[1] Section 48(1).
[2] Section 48(1)(a).
[3] Section 48(1)(b).
[4] Section 48(1)(c).
[5] Section 48(1)(d).
[6] Section 48(1)(f).
If the party causing the disadvantage is the applicant, the tribunal may order that the proceeding be dismissed or struck out[7] or make an order for costs to compensate the other party for any reasonable costs incurred unnecessarily.[8] The tribunal must consider the extent to which the party causing disadvantage is familiar with its practices; the capacity of the party causing disadvantage to act on the tribunal’s orders and directions; and whether the party is acting deliberately.[9]
[7] Section 48(2).
[8] Section 48(2)(c).
[9] Section 48(3).
Submissions of the Parties
The respondent makes a number of submissions to support its application for dismissal. These include that the directions of 18 October provided a generous timeframe for the filing of the amended application; that there was no warning from the applicants of difficulties complying and no proper explanation for the failure to comply, despite legal representation. It submits that the tribunal must consider whether a reasonable excuse has been provided by the applicants for the non-compliance. The respondent submits that the applicants have not done so.
The respondent also submits that having regard to the protracted history of the claim dating back to 2006 and, it seems, because the OFT did not investigate the claim before referring it to the tribunal, that the matter should not proceed to hearing as to allow it to do so would be ‘unsafe, unjust and contrary to the objects of the QCAT Act’. The respondent argues prejudice as a result of the applicants’ failure to diligently prosecute their claim and that the tribunal should consider the merits of the applicants claim ‘in considering whether to grant the applicants’ leave to continue to prosecute this claim’.
The applicants submit that the matter only became a proceeding upon the referral from OFT in May 2010 and that any delay before referral from OFT is irrelevant to this application. Subsequently, several preliminary issues including the respondent’s application to strike out the application for lack of jurisdiction, had to be dealt with. Responding to the jurisdiction application required significant work for the applicants, who find it difficult to afford legal representation, largely as a result of the circumstances giving rise to their claim. They submit that investigating and taking detailed instructions for the amended application took longer than anticipated and resulted in significant legal costs. With their submissions, the applicants provided the amended statement of claim which they propose to file.
Further, the applicants submit that if the application is struck out, they are unlikely to be able to make a further claim resulting in significant prejudice to them which is out of proportion to the extent of any non-compliance.
Discussion and Decision
Under section 48(2) of the QCAT Act, the tribunal may, in its discretion, dismiss or strike out an application. All of the examples of causing unnecessary disadvantage referred to in section 48(1), are things that may occur during the conduct of a proceeding. The matters to be taken into account under section 48(3) support this interpretation. As a matter of statutory construction, it is clear that section 48 applies in respect of causing unnecessary disadvantage in the course of conducting proceedings before the tribunal.
Accordingly, the submissions of both parties which relate to matters occurring prior to the commencement of the proceedings, including any alleged delay in making the claim, are irrelevant and are not considered further.
The matters specified in section 48(1), which may provide a basis for a finding that a party is causing unnecessary disadvantage, relate to conduct which may cause disadvantage rather than a consideration of the merits of the application. As a matter of statutory construction, other matters of conduct may also be relevant. However, matters relating to the substantive merits of the application are not relevant under section 48. Accordingly, the respondent’s arguments that the claim should not be able to proceed for reasons related to the merits of the claim are irrelevant and will not be considered further.
The applicants’ non-compliance with the direction of 18 October 2010 to file and serve any amended application by 9 December and the reasons why they did not do so are relevant. The applicants suggest that this failure flowed from a need to fully investigate and take instructions in circumstances where lawyers had become involved to act for the applicants in this claim of some complexity.
The proposed amended application was provided to the tribunal on 8 February 2011, some 2 months after it was to be filed and served. However, the Christmas and New Year Holiday period and the associated office closures intervened. The excuse given by the applicants for the delay is not set out in detail having regard to the time frames involved. However, it provides an explanation for the delay.
Having regard to the nature of the claim, it is apparent that it involves issues of some complexity which may have reasonably extended the time frames for investigating and taking instructions. In the circumstances, I am satisfied that the applicants have provided reasonable excuse for the non-compliance.
The respondent does not raise any other matters which may provide grounds for dismissal under section 48.
I refuse the respondent’s application to dismiss the proceeding under section 48(2) of the QCAT Act.
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