Sheppard and the residents of Urimbirra Retirement Village v Milstern Retirement Services Pty Ltd
[2010] QCAT 278
•18 June 2010
CITATION: Sheppard and the residents of Urimbirra Retirement Village v Milstern Retirement Services Pty Ltd [2010] QCAT 278
PARTIES: Mr John William Sheppard and the residents of Urimbirra Retirement Village v Milstern Retirement Services Pty Ltd
APPLICATION NUMBER: VH009-09
MATTER TYPE: Other civil dispute matters
HEARING DATE: 15 June 2010
HEARD AT: Brisbane
DECISION OF: Richard Oliver, Senior Member
DELIVERED ON: 18 June 2010
DELIVERED AT: Brisbane
ORDERS MADE:
1. That the decision dated 17 May 2010 is stayed
2. That the application be listed for hearing on 2 August 2010
CATCHWORDS : Failure to attend a compulsory conference; Decision made in the absence of a party; section 72(1)(b)9ii) and section 137 of the QCAT Act considered; Stay Decision pending final hearing. APPEARANCES and REPRESENTATION (if any):
APPLICANT: Mr John William Sheppard and the residents of Urimbirra Retirement Village as listed in the application lodged 4 September 2009 represented by Mr Boyce of Butler McDermott, solicitors
RESPONDENT: Milstern Retirement Services Pty Ltd represented by Hopgood Ganim Lawyers.
REASONS FOR DECISION
On 26 March 2010 “Notice of Compulsory Conference” (“the Notice”) was sent to the Applicant and the Respondent nominating a date for a compulsory conference to be conducted at the Caloundra Court House at 9:30am on 15 April 2010. Of relevance, the Notice enclosed a document titled “An overview of compulsory conferences”. This is a document generated by the Tribunal to assist parties attending a compulsory conference to better understand the nature and purpose of the compulsory conference. The Notice itself also contains a warning that if a party fails to appear at the Compulsory Conference “the conference may proceed and the person presiding over the conference may make orders” in the parties absence.
As it transpired the conference did not proceed on 15 April 2010 but was adjourned to 17 May 2010 and a fresh Notice were sent to the parties with the new date.
The Respondent (“Milstern”) does not dispute receiving the Notice and made arrangements to attend the Compulsory Conference through its sole director Millia Phillips.
It is not contested that Ms Phillips failed to attend the Compulsory Conference at the appointed time and in her absence, consistent with the powers contained in section 72(1)(b)(i) of the QCAT Act the Tribunal member conducting the conference made a Decision adverse to the absent party and also made orders about costs.
After publication of the Decision, Milstern wrote to the Tribunal advising that Ms Phillips attended the Caloundra Court on 18 May 2010 as opposed to 17 May. She stated in her letter:
“Unfortunately the notice of hearing did not mention the day of the week – just the date. My lack of awareness is due to my having torn 6 tendons in my right arm. This follows tearing the muscle in the arm some years ago. Consequently nothing supports my right arm. Bone grates on bone. It causes severe pain alleviated by medication. Regretably the pain killers fog my mind and I function with difficulty”.
The letter effectively sought that the Decision be set aside and the application be reopened and considered afresh at a final hearing.
On 15 June 2010 an application to reopen was filed in the Tribunal and supported by an affidavit of Ms Phillips and written submissions by her solicitors.
In anticipation of the reopening application being made, and on being made aswar of the excuse set out in the letter from the respondent, the Applicant’s solicitors sought further evidence going to the genuineness of Ms Phillilps reasons for not attending the conference which included, documentation in support of her trip from Sydney to the Sunshine Coast. Certain documents were produced which included a booking sheet from Virgin Blue, and an Avis rental car invoice.
In addition to that evidence, Ms Phillips has produced a report from Chatswood Diagnostic Centre which confirms that she attened that centre on 20 May 2010 to have an ultrasound of her right shoulder. This ultrasound confirms injury to the soft tissue in and around her right shoulder.
10. During the course of the hearing to reopen on the afternoon of 15 June, Mr Boyce relied on his letter to the Tribunal of 10 June 2010 in the way of submissions and made further submissions concerning the credibility of Ms Phillips. In particular, herelied on the following:-
(a) No evidence has been produced of the type or nature of the drugs allegedly taken by Ms Phillips which cause her to become confused
(b) There is no medical evidence, other than the ultra sound, supporting the nature and extent of the injury nor the time when it is alleged to have occurred
(c) Her explanation for leaving Sydney on 16 May for a meeting on 18 May is improbable given that she knew a compulsory conferece was scheduled for 17 May.
(d) It is improbabe that the absence of the day of the week being specified on the Notice for the compulsory conference would cause confusion
(e) The Avis invoice produced by Ms Phillips does seem to indicate that the hire commenced on 18 May rather then a day when one could reasonably expect it to commence, being 16 May having regard to her evidence.
(f) The Respondent has failed to comply with l orders made by the former Commercial and Consumer Tribunal
(g) In an “amended defence” the Respondent acknowledges that those renting units in the retirement village have no entitlement to do so because it states:
“many residents currently renting are entering into an agreement to purchase the lease of the unit they occupy. Those who do not do so have been advised of the probability that the Tribunal will apply “the Act” and at the Ministers direction will be required to depart the village in a four week period. There are 32 renters residing in the village aged between 62 – 92”
11. It is a combintion of all the above submissions which, it is submitted by the Applicant, that the failure to attend the Compulsory Conference was nothing more than a delaying tactic on the part of the Respondent to avoid confronting the reality of the application which, it is submitted, can not succeed.
12. The Respondent, on the other hand submits that it took all reasonable steps to attend the compulsory conference and it was only by reason of Ms Phillips ill health that confusion arose concerning the actual day of the compulsory conference. In fact she says that when she did attend the Caloundra Court she attempted to contact QCAT, but it is curious she made no attempt to contact Mr Boyce.
13. In support of this contention, I am at least prepared to find that Ms Phillips did travel from Sydney to the Sunshine Coast although I cannot be sure on what day she arrived at the Sunshine Coast given the discrepancy with the Avis car hire date. Ms Phillips did not have an opportunity to respond to these submissions in detail.
14. I am also satisfied, quite obviously, that Ms Phillips had notice of the hearing date. The absence of any evidence as to medication taken which might have resulted in confusion is troubling. I am also conscious of the fact that the Respondent itself believes that its response to the Applicant’s claim is not likely to meet with success.
15. There is no doubt that the Tribunal member conducting the compulsory conference acted correctly and consistent with the objects of the QCAT Act in making the orders with a view of finalizing the application.
16. The application to reopen is made pursuant to section 138 of the QCAT Act. Subsection 1 provides:
“A party to a proceeding may apply to the tribunal for the proceeding to be reopened if the party considers a reopening ground exists for the party.”
17. Section 72(3) treats the Compulsory Conference as if it were a proceeding before the Tribunal when final orders are made and therefore section 138 is applicable to final orders made at a compulsory conference.
18. The grounds relied on in section 137 are that:
(a) The party did not appear at the hearing of the proceeding and had a reasonable excuse for not attending the hearing.
19. The question here is whether or not the Respondent had a “reasonable excuse”.
20. It is reasonable, in my view, to give Milstern the benefit of the doubt’ however the points made by Mr Boyce certainly carry weight in considering whether or not the excuse proffered by the Respondent is “reasonable”.
21. Despite those reservations, I am also conscious of the need to ensure that there has been procedural fairness. To deny a party an opportunity to be heard is a serious matter.
22. Although not completely satisfied with the excuse proffered by Ms Phillips, I have come to the view on balance, that the interests of justice will be best served if the Respondent was given an opportunity to be heard at a final hearing. Rather than set aside the Decision made on 17 May 2010 I propose to stay it so that that the stay can be lifted if there is any further non appearance by the Respondent or non compliance with Tribunal orders.
23. Therefore the orders of the Tribunal will be:
1. That the decision dated 17 May 2010 is stayed
2.That the application be listed for hearing on 2 August 2010
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