Universal Construction Group Pty Ltd v Vrhovac Enterprises Pty Ltd
[2011] QCATA 358
•14 December 2011
| CITATION: | Universal Construction Group Pty Ltd v Vrhovac Enterprises Pty Ltd [2011] QCATA 358 |
| PARTIES: | Universal Construction Group Pty Ltd |
| v | |
| Vrhovac Enterprises Pty Ltd |
APPLICATION NUMBER: APL260-11
| MATTER TYPE: | Appeals |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Richard Oliver, Acting Deputy President Peta Stilgoe, Member |
DELIVERED ON: 14 December 2011
DELIVERED AT: Brisbane
ORDERS MADE: Leave to appeal refused.
| CATCHWORDS: | APPEAL AGAINST LEAVE FOR REPRESENTATION – where companies represented by agents – where one agent a commercial agent – where previous order refusing representation – whether natural justice afforded Queensland Civil and Administrative Tribunal Act2009, ss 29, 43(4), 62 Grasso & Anor v CMG Consulting Engineers Pty Ltd [2011] QCATA 244 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Mr Oliver
In this matter the Appeal Tribunal consisted of Ms Stilgoe, QCAT Member and me. I have had the benefit of reading her reasons in draft. I agree with her reasons, and her conclusions, and the order she proposes.
Ms Stilgoe
On 14 March 2011, the tribunal made an order refusing Vrhovac Enterprises Pty Ltd leave to be represented in the proceeding.
The proceeding was set down for a directions conference on 28 June 2011. At that hearing, the learned Adjudicator set aside the order of 14 March 2011 and granted leave for both parties to be represented.
Universal has appealed the learned Adjudicator’s decision on a number of grounds. To summarise:
a) The learned Adjudicator thought that the order of 14 March 2011 should be set aside “on her own inclination”, without notice and without submissions.
b) The order of 14 March 2011 is the correct decision.
c) Nothing has changed since the order of 14 March 2011.
d) Vrhovac’s proposed agent is a “professional person” who possesses legal knowledge so Universal would be at a distinct disadvantage at the hearing.
e) Universal has been denied natural justice.
f) The learned Adjudicator had no jurisdiction to entertain the application.
Because this is an appeal from a decision of the tribunal in its minor civil dispute jurisdiction, leave is necessary. Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?
The proceeding was listed before the learned Adjudicator for a directions conference to allow the parties to confer and, if possible resolve the issue of representation. The tribunal has a general power to give a direction at any time in a proceeding and do whatever is necessary for the speedy and fair conduct of a proceeding.[1] The parties must have contemplated that the learned Adjudicator might set aside the previous order and substitute one of her own.
[1] Section 62 Queensland Civil and Administrative Tribunal Act 2009.
Both parties to this dispute are companies. Companies must appear by some sort of agent[2]. If the company appears through an officer of the company[3], leave is not necessary but neither company was represented by an officer at the directions conference. The learned Adjudicator gave the parties two options: either both companies were represented or neither was represented.[4]
[2] Rule 54 Queensland Civil and Administrative Tribunal Rules 2009.
[3] Rule 54(1).
[4] Transcript page 4, lines 10-11.
Universal’s representative Ms Politska candidly stated that the company intended that she be its representative at the hearing.[5] Once the learned Adjudicator was appraised of that fact, she took the sensible course of allowing both parties leave to be represented.
[5] Transcript page 4, lines 39-41.
If a proposed representative is not a legal practitioner, the tribunal must be satisfied that the person is an appropriate person to represent the company.[6] The learned Adjudicator determined that: Universal’s director was overseas and it was not economical to have him in Australia just for this proceeding; Universal’s usual agent – the licensee – would be a witness and should not, therefore, represent the company; and Mr Haberfield was the only other option. The learned Adjudicator was aware that Mr Haberfield was a commercial agent.
[6] Section 43(4) QCAT Act.
I apprehend Vrhovac’s submission about natural justice to be directed at Mr Haberfield’s superior skills because of his profession. Section 29 of the Queensland Civil and Administrative Tribunal Act2009 requires the tribunal to take all reasonable steps to ensure that each party understands the practices and procedures of the tribunal, the nature of the assertions against them and the nature of any decision. It is an obligation that the tribunal Members take very seriously.
I also note that Ms Politska was a confident and competent advocate at the directions hearing. I am confident that Vrhovac will receive a fair hearing.
This appeal concerns a challenge to the exercise of discretion. The approach to such questions was set out by the President, Justice Wilson SC in a recent decision[7]:
Where what is being appealed against is the way a Member exercised a discretion of this kind, the Appeal Tribunal will not interfere unless it can be shown that the Member acted upon a wrong principle, or made mistakes of fact which affected the decision, or was influenced by irrelevant matters. Just because the Appeal Tribunal might have exercised the discretion differently, that is not a basis for changing the decision: it must be shown that the decision is plainly unjust or unreasonable, and involved a clear misapplication of the discretion.
[7] Grasso & Anor v CMG Consulting Engineers Pty Ltd [2011] QCATA 244 at [31].
The learned Adjudicator was entitled to exercise her discretion as she did. I can find no mistake of principle or fact that affected the learned Adjudicator’s decision, nor can I find any evidence that she was affected by an irrelevant consideration. Her determination was not unjust or unreasonable.
There is no question of general importance that should be determined by the appeal tribunal; there is no reasonably arguable case that the learned Adjudicator was in error; there is no reasonable prospect of substantive relief on appeal; and there is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.
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