Robertson v Airstrike Industrial Pty Ltd
[2011] QCAT 625
•6 December 2011
| CITATION: | Robertson and Anor v Airstrike Industrial Pty Ltd [2011] QCAT 625 |
| PARTIES: | Mrs Janice Robertson Mr Charles Robertson |
| v | |
| Airstrike Industrial Pty Ltd |
| APPLICATION NUMBER: | OCL041-10 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | 6 December 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Susan Gardiner, Member |
| DELIVERED ON: | 6 December 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | That the application for striking out or dismissal of the application is refused. |
| CATCHWORDS: | APPLICATION FOR DISMISSAL – where respondent alleges disadvantage procedurally and substantively – where no current procedural default and hearing date set 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
Airstrike Industrial Pty Ltd again seeks the dismissal of Janice and Charles Robertson’s claim referred to QCAT in May 2010 (made under the Property Dealers and Motor Agents Act 2000) under section 48 of the Queensland Civil and Administrative Tribunal Act 2009. The Robertsons’ claim is based on alleged representations made by representatives of Airstrike Industrial Pty Ltd in their purchase of a commercial property.
There have been numerous hearings during the course of this claim so far, both procedural and substantive, including two previous applications for striking out which have been refused.
In renewing its application on this occasion, Airstrike says this application is different from the previous applications because the Robertsons have conducted the proceedings in a way that unnecessarily disadvantages Airstrike by not complying with the Act, an enabling Act or the rules or by vexatiously conducting the proceedings[1].
[1] Queensland Civil and Administrative Tribunal Act2009, ss 48(1)(b) and (f).
Airstrike points to a long history of what it says is inaction either by the Robertsons themselves or solicitors on their behalf, so that Airstrike is now materially disadvantaged as witnesses must recall oral dealings which occurred over 5 years ago. Airstrike say that the failure of the Robertsons to provide a firm date for the delivery of the expert reports strengthens this submission and that no further indulgences should be afforded to the Robertsons.
Airstrike also raises substantive issues that go to the representations alleged to have been made, pointing to conflicts in the Robertsons’ claim that it says are illogical and unsustainable.
In reply, the Robertsons submit that to strike a matter out as vexatious, the conduct must be something more that mere delay on the part of one party to the proceedings[2]. The Robertsons say they are not currently in default of any Tribunal directions. The hearing of this matter is set to commence on 30 July 2012 and the Robertsons propose to file their expert evidence (the only remaining evidence in the submission of the applicants) by mid January 2012.
[2]O’Shea v Cameron [1996] QCA 037; Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 79 ALR 9; Leo v Paulsen [2010] QCAT 122.
I accept that matters relating to the substantive merits of the application are not relevant under section 48 of the QCAT Act[3]. Airstrike’s submission that evidence or submissions in the substantive matter before the Tribunal are illogical and unsustainable are, in my view, matters which go to the substantive matters and are irrelevant to this application.
[3] Robertson & Robertson v Airstrike Industrial Pty Ltd [2011] QCAT 120 at 12.
I also accept that since this matter has been on foot, both sides have had ample opportunities to commit to writing the recall of witnesses at an early stage in these proceedings. I fail to see how either party could be disadvantaged if prudent preparation was undertaken once the claim was made.
Despite the procedurally difficult gestation, it appears that this matter is now one step away from a hearing, the date for which is already set in the Tribunal’s calendar for next year. I accept that the Robertsons are not currently in default of any directions.
[10]With the proviso that both parties strictly abide by any further directions of this Tribunal, I see no reason why this matter should not now progress to a hearing of the substantive matters.
[11]Airstrike’s application is refused and the following directions are made:
i) Robertsons must file in the Tribunal one (1) copy and serve on Airstrike one (1) copy of an expert report, by: 4:00pm on 3 February 2012.
ii) Airstrike must file in the Tribunal one (1) copy and serve on the Robertsons one (1) copy of an expert report, by: 4:00pm on 2 March 2012.
iii) The Tribunal will determine on the papers, without oral hearing, whether an expert conclave is required, not before 16 March 2012.
iv) The matter is listed for Directions Hearing at 9:15am on 18 April 2012.
v) The matter is listed for a four (4) day Hearing at 9:30am on 30 and 31 July and 1 and 2 August 2012.
[12]I again remind the parties that strict compliance of these and any further directions of this Tribunal is expected.
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