Solar Lord Pty Ltd v Angus

[2017] QCATA 58

CITATION: Solar Lord Pty Ltd v Angus [2017] QCATA 58  

PARTIES:	Solar Lord Pty Ltd (Applicant/Appellant)
v
Phillip Angus (Respondent)

APPLICATION NUMBER: APL376 -16

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member Stilgoe OAM

DELIVERED ON: 18 May 2017

DELIVERED AT: Brisbane

ORDERS MADE:

1.    Leave to appeal granted.

2.    Appeal allowed.

3.    The decision of 11 August 2016 is set aside.

4.    The proceeding is returned to the tribunal, differently constituted, for rehearing.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – PROCEDURE – STATE AND TERRITORY COURTS, POWERS AND GENERALLY – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – APPEARANCE OR NOTICE TO DEFEND – GENERALLY – where respondent applied to appear by telephone – where tribunal failed to deal with application – where tribunal did not telephone respondent for hearing – where hearing conducted in absence of respondent – whether failure to provide procedural fairness – whether grounds for leave to appeal

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 139(5), s 142(3)(a)(i)

Pickering v McArthur [2005] QCA 294

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 (Qld) (QCAT Act).

REASONS FOR DECISION

1. Phillip Angus bought a Solar Lord Pty Ltd hot water system in 2010. In 2015, Mr Angus noticed the tank was leaking from the collector and was showing signs of external rust. Mr Angus made a warranty claim against Solar Lord, which was refused.

2. Mr Angus filed a claim in the tribunal. It was listed for hearing on 11 August 2016 in Brisbane. Solar Lord operates from Melbourne. It filed an application for telephone attendance on 9 August 2016. For whatever reason, the application did not come to the tribunal’s attention. Solar Lord did not appear at the hearing by telephone.

3. Solar Lord applied to reopen the proceeding. That was refused on the grounds that there was no evidence on file of a request to appear by telephone.

4. Solar Lord wants to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]

   [1]QCAT Act, s 142(3)(a)(i).

   [2]Pickering v McArthur [2005] QCA 294 at [3].

5. Solar Lord’s sole ground of appeal is that it was not given an opportunity to put its case to the tribunal. If it is correct, that is a failure to provide procedural fairness, which is an error of law, for which leave to appeal should be granted.

A preliminary matter

1. Solar Lord wants to appeal the decision to refuse the reopening. A tribunal’s decision on a reopening is final and cannot be challenged or appealed.[3]

   [3]QCAT Act s 139(5).

2. Solar Lord can, however, appeal the original decision. The time for appealing the original decision is 28 days after an application for reopening is finally dealt with. The reopening was finally dealt with in 20 October 2016 and the application for leave to appeal was filed on 11 November 2016. The application for leave to appeal is within time. Given the unusual circumstances of this case, I am prepared to treat the application for leave to appeal as an application about the original decision.

Did the tribunal fail to provide procedural fairness?

1. The file clearly shows that Solar Lord is a company that operates from Melbourne. Solar Lord appeared at mediation by telephone.[4] It might be supposed that it was logical that Solar Lord would also appear at the hearing by telephone.

   [4]Transcript page 1-3, line 37.

1. Solar Lord did, in fact, apply to appear by telephone but the application was buried in the body of the file. Although the application was logged by the tribunal registry, there is no evidence that the tribunal dealt with the application before the hearing. Certainly, the learned Adjudicator hearing the proceeding was not aware of the application. The application was so well buried that it did not come to the learned Adjudicator’s attention when considering the application for reopening.

1. The tribunal was in error. Because of that error, Solar Lord was denied the opportunity to address the tribunal. Leave to appeal should be granted and the appeal allowed. The decision of 11 August 2016 is set aside and the proceeding should be returned to the tribunal, differently constituted, for rehearing.