Upson v Purdie

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Upson v Purdie [2018] QCATA 164

PARTIES:

ROBERT JAMES UPSON
(appellant)
v

KEN PURDIE

(respondent)

APPLICATION NO/S:

APL410-17

ORIGINATING APPLICATION NO/S:

MCDO751-14 (Brisbane)

MATTER TYPE:

Appeals

DELIVERED ON:

8 November 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Browne
Member Gordon

ORDERS:

1.   Leave to appeal against the decision made on 17 October 2017 in MCDO751-14 (Brisbane) is granted.

2.   The appeal is allowed.

3.   The order made in MCDO751-14 on 17 October 2017 is set aside and the following decision is substituted:

The order made by the Tribunal on 18 November 2014 is revoked and it is declared that MCDO751-14 is not withdrawn and remains before the Tribunal for determination.

THE APPEAL TRIBUNAL DIRECTS THAT:

4.   MCDO751-14 is listed for hearing in the minor civil disputes list and the following issues will be heard as preliminary issues:

(a)   Whether the settlement and/or withdrawal agreements signed on 16 June 2014 ended the cause of action in MCDO751-14, or the right of Robert James Upson to bring that claim; and

(b)   Whether the tribunal has jurisdiction to hear the claim in MCDO751-14.

5.   Robert James Upson and Harris Sushames Lawyers must give to each other, and file in the tribunal a full copy of the settlement and withdrawal agreements signed on 16 June 2014, by: 4:00pm on 30 November 2018.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – where parties made a withdrawal agreement containing a condition subsequent – where the condition subsequent was satisfied so that there was no withdrawal – where the satisfaction of the condition subsequent was missed or overlooked by the tribunal which then refused to hear the proceedings – whether the error should be corrected on appeal

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 12, s 13, s 46, s 61, s 85, s, 122, s 142(3)(a), s 147, Schedule 3

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 57A, r 58

Cachia v Grech [2009] NSWCA 232
Early Property Group Pty Ltd t/a Early Group Valuers v Cavallaro [2010] QCATA 65
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
McDermott v Black (1940) 63 CLR 161
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
Singleton v KRG Conveyancing Centre trading as KRG Law [2010] QCAT 708

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

REPRESENTATION:

Appellant:

Self-represented

Respondent:

Self-represented

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

  1. On 4 April 2014, Mr Upson brought a claim in the Tribunal’s minor civil dispute jurisdiction against Harris Sushames Lawyers (‘the firm’) for between $10,000 and $20,000 which he says he paid to the firm on account of legal fees, but which should have been returned to him. Mr Upson’s claim was given the claim number…

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Details
Case
[2018] QCATA 164
Decision Date

CaseChat Overview and Summary

The parties in this case, Upson v Purdie, were involved in a minor civil dispute before the Queensland Civil and Administrative Tribunal (QCAT). The central dispute centred around the effect of a withdrawal agreement signed by the parties on 16 June 2014. The primary legal issue before the court was whether an error in the Tribunal's decision should be corrected on appeal. Specifically, the court needed to determine whether the satisfaction of a condition subsequent in the withdrawal agreement, which was missed or overlooked by the Tribunal, should result in the application being reinstated for determination.

The court's reasoning focused on the interpretation of the withdrawal agreement and the subsequent actions of the parties. Clause 6 of the withdrawal agreement stipulated that the application would be withdrawn on 15 November 2014 unless a party notified the Tribunal in writing prior to this date that the agreement had not been complied with. The Tribunal's error was in overlooking that Mr Upson had notified the Tribunal on 14 August 2014 of his objection to the material sent by the other party, indicating non-compliance with the underlying settlement agreement. This notification satisfied the condition subsequent, and thus Mr Upson was no longer withdrawing his application. The court held that an order stating 'application withdrawn' has no effect unless the application is indeed withdrawn, as this is the applicant's responsibility under the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). The Tribunal’s order of 18 November 2014, which stated that the application was withdrawn, was set aside, and it was declared that the matter remained before the Tribunal for determination.

In light of the findings, the court granted leave to appeal against the decision made on 17 October 2017 and allowed the appeal. The order made by the Tribunal on 17 October 2017 was set aside, and the order made on 18 November 2014 was revoked. The matter was listed for hearing in the minor civil disputes list, with preliminary issues to be determined regarding the effect of the agreements on the cause of action and the Tribunal's jurisdiction to hear the claim. The parties were directed to file full copies of the settlement and withdrawal agreements by a specified date.

Orders

Orders of the court

1. Leave to appeal against the decision made on 17 October 2017 in MCDO751-14 (Brisbane) is granted.

2. The appeal is allowed.

3. The order made in MCDO751-14 on 17 October 2017 is set aside and the following decision is substituted:

The order made by the Tribunal on 18 November 2014 is revoked and it is declared that MCDO751-14 is not withdrawn and remains before the Tribunal for determination.

THE APPEAL TRIBUNAL DIRECTS THAT:

4. MCDO751-14 is listed for hearing in the minor civil disputes list and the following issues will be heard as preliminary issues:

(a) Whether the settlement and/or withdrawal agreements signed on 16 June 2014 ended the cause of action in MCDO751-14, or the right of Robert James Upson to bring that claim; and

(b) Whether the tribunal has jurisdiction to hear the claim in MCDO751-14.

5. Robert James Upson and Harris Sushames Lawyers must give to each other, and file in the tribunal a full copy of the settlement and withdrawal agreements signed on 16 June 2014, by: 4:00pm on 30 November 2018.

Background

Background to the litigation

In order to explain our reasons for reaching this conclusion we need to recite what happened in some detail.Background to the minor civil dispute proceedings One of the agreements signed during the mediation held on 16 June 2014 has been described as a ‘settlement agreement’. The Tribunal only has the second page of that agreement. It can be seen from this document however, that:-(a)The parties deleted standard terms referring to filing the settlement agreement in the Tribunal under s 85 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’);(b)The parties expressly agreed not to file the agreement in the Tribunal; and(c)The parties agreed to sign and file a separate withdrawal agreement in the Tribunal. No doubt pursuant to (c) above, there is a second agreement on the file. This is titled ‘Withdrawal Agreement’. This recites that the parties have agreed to resolve their dispute and that as a result the applicant (i.e. Mr Upson) agrees to withdraw the application, to which the respondent agrees, and that an order will be sought from the Tribunal giving leave for the application to be withdrawn. Then there is this clause:-6. Parties seek that the order for withdrawal is to take effect from the 15 November 2014 to allow for the agreed terms of settlement to be carried out. The application will be withdrawn on that date pursuant to this agreement unless a party notifies the tribunal in writing prior to this date that agreement has not been complied with. At this point we would point out that the references in the document referred to above, to seeking leave of the Tribunal for the application to be withdrawn suggest that the document was drafted with an earlier version of the QCAT Act and Rules in mind than were in existence at the time it was signed. Effective from 1 January 2014 the method of withdrawal for minor civil disputes in the tribunal was changed. Prior to that date, all applications for withdrawal required leave of the tribunal. A withdrawal would be effected by an application on the approved form seeking leave to withdraw and providing copies to the other party. Then upon the tribunal giving leave, the withdrawal would take effect.[2][2]See s 46 of the QCAT Act and Rule 58 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (‘the QCAT Rules’) as they then stood. After the amendments to the QCAT Act and Rules, the need to apply for leave to withdraw was removed in most cases. The new procedure was that an applicant does not have to apply for leave to withdraw; instead the applicant merely withdraws the application. The withdrawal may be done ‘in the way stated in the rules’.[3] The relevant rule states that the withdrawal may be done by filing a notice in the approved form (Form 58) and giving it to all other parties.[4][3]See s 46 of the QCAT Act, as amended. See s 46(2) that provides however that if the application or referral is made under certain legislation (as provided) then leave of the tribunal is required.[4]See rule 57A of the QCAT Rules.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 18 September 2017, Mr Upson filed the Form 40 application for miscellaneous matters in the Tribunal. Appeal ground: error of fact in the Tribunal’s decision Mr Upson says that Mr Purdie ‘did not comply with QCAT’.[5] In his recent affidavit filed in this appeal, Mr Upson says that on 14 August 2014 he emailed the firm and the Tribunal stating that he objected to the material sent by the firm on the basis that it failed to comply with the relevant ‘General Agreement’.[6] Mr Upson says that since that time (i.e. 14 August 2014) and up to the filing of his Form 40 application on 18 September 2017 he was trying to find out what had happened to his claim.[7][5]Application for leave to appeal or appeal filed on 12 December 2017.[6]Affidavit of Robert John Upson filed 15 June 2018.[7]See affidavit of Robert John Upson filed 15 June 2018. We accept Mr Upson’s ground of appeal that identifies an error of fact has been established. The record shows that after the Tribunal received Mr Upson’s Form 40 application, the matter was referred to an Adjudicator who dismissed it, having considered it ‘on the papers’.[8] The Adjudicator was asked by Mr Upson to give reasons for the decision and this was done subsequently under the provisions which permit reasons to be requested and given afterwards.[9] The Adjudicator decided he was functus officio (having fulfilled the function) because of the Tribunal’s order of 18 November 2014. The Adjudicator decided that Mr Upson’s application was withdrawn pursuant to a withdrawal agreement signed by the parties on 16 June 2014, which was the product of an unpublished underlying settlement agreement between the parties. The Adjudicator found that the dispute having been compromised or settled, and the withdrawal order having been made, ‘there is simply no longer any proceeding on foot in this matter in which the Tribunal can make any further orders’.[10] [8]Tribunal decision dated 17 October 2017.[9]QCAT Act, s 122.[10]Tribunal’s reasons dated 3 November 2017. The Adjudicator who decided on 17 October 2017 to refuse the Form 40 application was clearly misled by the earlier incorrect order recording that the application had been withdrawn. Overall, the Tribunal made an error of fact on 17 October 2017. This is because there was the condition subsequent in clause 6 of the withdrawal agreement that was satisfied by Mr Upson’s email to the Tribunal of 14 August 2014. In that email Mr Upson notified the Tribunal that the other party had not complied with the settlement agreement. This meant that Mr Upson was no longer withdrawing his application. We consider that an order of the tribunal stating ‘application withdrawn’ has no effect unless the application is indeed withdrawn. This is because the tribunal cannot withdraw an application, as this is for the applicant to do in accordance with s 46 of the QCAT Act. The most such an order may do in an appropriate case is to record the fact of a withdrawal. In doing so it may impliedly dispense with the usual procedural requirements required for a withdrawal.[11] [11]As may be done under s 61 of the QCAT Act.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.