Smith v Taylor
[2014] QCATA 36
•3 January 2014
| CITATION: | Smith v Taylor [2014] QCATA 36 |
| PARTIES: | Colin Smith (Applicant/Appellant) |
| v | |
| Rae Taylor (Respondent) |
| APPLICATION NUMBER: | APL501-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 3 January 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Acting Senior Member Howard |
| DELIVERED ON: | 3 January 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for leave to appeal or appeal is dismissed for non-compliance with directions dated 26 November 2013. |
| CATCHWORDS: | APPLICATION FOR LEAVE TO APPEAL – where directions made for the service and filing of material and that application would be dismissed if applicant failed to comply with directions – where applicant did not comply with the directions by filing an affidavit of service and did not file either submissions or advice that he did not intend to file further submissions – whether application dismissed Queensland Civil and Administrative Tribunal Act 2009 s 48 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Mr Smith, a former tenant, had orders made against him in a minor civil dispute application filed by Ms Taylor, the landlord. He was ordered to pay her an amount totalling $728.40, of which $627 was to be paid from his rental bond monies held by the Residential Tenancies Authority, and the balance was to be paid by Mr Smith.
He filed an application seeking leave to appeal the decision made on the grounds of ‘points not fully considered’. He filed a submission with his application.
On 26 November 2013, Senior Member Stilgoe made directions as follows:
(1)The application for leave to appeal and the appeal (if the application for leave to appeal is granted) will be determined on the papers by written submissions from the parties; and without an oral hearing.
(2)Colin Smith must establish that the application for leave to appeal or appeal has been given to Rae Taylor in compliance with Rule 96 by filing an Affidavit of Service or a form of acknowledgement from each other by:
4:00pm on 5 December 2013.
(3)Colin Smith must file in the registry one (1) copy and deliver to Rae Taylor one (1) copy of all written submissions in support of the application for leave to appeal and any further submissions in support of the appeal that Colin Smith wishes to rely upon party or advise that no further material will be filed, by:
4:00pm on 17 December 2013.
(4)Rae Taylor must file in the registry one (1) copy and give to Colin Smith one (1) copy of all submissions in reply to both the application for leave to appeal and any submissions filed in support of the appeal within 28 days after the receipt by Rae Taylor of Colin Smith’s submissions.
(5)If Colin Smith does not comply with paragraphs 2 and 3, by the said date the application is dismissed without further order.
The file was referred to me by the registry on 19 December 2013. Mr Smith had not filed and/or provided the documents required by directions 2 and 3. I requested that registry, in effect, double check for any material from Mr Smith on 2 January 2014 and if none had been received to refer the file back to me.
When I again considered the file on 3 January 2014, neither the evidence of service (as required by direction 2) nor any other submissions or in the alternative, advice that no further material would be filed (as required by direction 3) had been received from Mr Smith.
Section 48 of the QCAT Act specifically provides for the dismissal of an application in circumstances where a party acts in a way which unnecessarily disadvantages another party, including when a party fails to comply with a Tribunal order or direction without reasonable excuse.
The objects of the QCAT Act include having the Tribunal deal with matters in a way that is, among other things, economical and quick.[1] To promote the objects of the QCAT Act and to have proceedings progress in a timely manner which does not disadvantage other parties to them, the Appeal Tribunal makes directions to ensure the efficient preparation of cases for the purpose of ensuring expeditious determination of applications for leave to appeal and appeal.
[1]QCAT Act s 3(b).
As the High Court of Australia observed in Aon Risk Services Australia Ltd v Australian National University, the ‘resolution of disputes serves the public as a whole, not merely the parties to proceedings’.[2] The decision concerned in that case involved an application for adjournment and amendments to pleadings. In allowing the appeal and refusing the amendments, the High Court clarified any misconception that case management considerations and questions of proper use of court (and by analogy, tribunal) resources are to be given little weight. Parties have an obligation to act responsibly and in their own interests in conducting proceedings.[3] If they do not do so, there may be consequences adverse to their interests.
[2](2009) 239 CLR 175, 217.
[3]Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39, esp at [21-22].
In this case, Mr Smith did not comply with the directions made on 26 November 2013. Mr Smith was on notice of the consequences of non-compliance: the directions included a specific direction that if he did not comply with the directions, then the application was dismissed without further order. He did not contact the registry to request more time to comply or to indicate he had any difficulty with the time frames within which he was required to comply.
I had regard to the matters in s 48(3). The proceeding is an appeal proceeding. Mr Smith has been involved in an earlier proceeding and I am satisfied that it is reasonable to infer that he understands that orders of the Tribunal are to be complied with. This is demonstrated by his appeal application in which he seeks to overturn the order of the Tribunal essentially so that he does not have to comply with it. I am also satisfied that Mr Smith has demonstrated the capacity to act on the Tribunal’s orders, having regard to the fact that he represented himself in the earlier proceeding and prepared an appeal application and submission. I am further satisfied that it is reasonable to infer that Mr Smith acted by not complying, whether deliberately or not, on notice of the consequences of non-compliance. In my view, the clear direction about the consequences of non-compliance is highly significant.
(Although on one view of direction 5 of 26 November 2013, Mr Smith’s application had already been dismissed because of his non-compliance with the orders), having regard to the matters discussed, I made orders which dismissed the application for non-compliance with the directions of 26 November 2013. These orders finalised the proceedings.
I make the following observations about events which occurred after my decision disposing of the proceeding.
The file discloses that Mr Smith subsequently wrote to the registry on 7 January 2014 responding to the directions made on 26 November 2013 and stating that if his appeal is not now allowed that he requests a refund of his filing fee. He asserts that all of the requirements of him had been met in November. It seems from what he says that, although he did not advise the Tribunal of this, he did not intend to file submissions in addition to those provided with his application. In the correspondence he also discusses steps he has taken to forward the application to Ms Taylor’s agent, asserting that his dispute was with the agent. It is apparent he had made no attempt to give the application to Ms Taylor personally or to ascertain whether the agent was able to provide an acknowledgment of service from Ms Taylor. The correspondence of 7 January 2014 was not referred to me as the proceeding had been finally determined.
On 29 January 2014, the registry wrote to Mr Smith about the filing fee, suggested he might wish to request reasons for the decision and pointed out that if he was unhappy with the decision made on 3 January 2014, he could take advice about any avenues to appeal the decision.
Mr Smith’s request for reasons for my decision was not received until 26 February 2014. It was accompanied by correspondence, essentially confirming his earlier correspondence, and again confirming that he had not advised the Tribunal as required by the directions of steps taken by him to attempt to serve the application. He does not suggest he advised the Tribunal, as directed, that he did not intend to provide further submissions. He appears to ask for the decision made by me to be reconsidered in some way. However, my decision of 3 January 2014 disposed of the proceedings.
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