Voiceworks Australia Pty Ltd v Astor Hotel Motel Pty Ltd
[2012] QCAT 75
•10 February 2012
| CITATION: | Voiceworks Australia Pty Ltd v Astor Hotel Motel Pty Ltd [2012] QCAT 75 |
| PARTIES: | Voiceworks Australia Pty Ltd (Applicant) |
| v | |
| Astor Hotel Motel Pty Ltd (Respondent) |
| APPLICATION NUMBER: | MCDO2309-11 |
| MATTER TYPE: | Other minor civil disputes matters |
| HEARING DATE: | 10 February 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | John Bertelsen, Adjudicator |
| DELIVERED ON: | 10 February 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | [1] The application by the applicant filed 11 January 2012 to amend its application filed 9 August 2011 is allowed. [2] The application by the respondent filed 13 September 2011 to strike out the applicant’s application is refused. [3] The application is set for hearing on 16 April 2012 with a hearing notice to be furnished to the parties. |
| CATCHWORDS: | Minor civil dispute – application to strike out proceeding and application to amend application – doctrine of res judicata – whether application ought in any event be allowed to proceed |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
Prior Application 3653-10
By application filed on 24 December 2010 the applicant sought late payment and quarterly payments for provision of “message on hold” equipment pursuant to a written contract entered into between the applicant and the respondent on 6 August 2007 (application number 3653-10) as follows:
§ Invoice 00011971 dated 12 March 2010 for late payment of an overdue invoice $33.00
§ Invoice 00012842 dated 22 July 2010 for advertising on hold agreement quarterly paid in advance for period 6/8/2010 to 6/11/2010 $285.29;
§ Invoice 00013432 dated 22 October 2010 for advertising on hold agreement quarterly paid in advance for period 6/11/2010 to 6/2/2011 $285.29;
§ Total $603.58.
The written contract was for one year renewable yearly (and in the absence of any new agreement was deemed renewed for the following year).
The respondent asserted in that application that it had terminated the contract as of 2 October 2009; that if any of the applicant’s services remained operational that the applicant terminate such and remove its equipment in conjunction with the respondent’s contractors. The respondent further asserted that the applicant failed to provide quality message recordings and scripting to be chosen by the respondent; that on hold messaging was inaccurate (causing loss and damage); and that the termination of 2 October 2009 was in fact by agreement.
Mediation of that application was set down for 9 June 2011. The respondent appeared, the applicant did not. On 10 June 2011 the application was dismissed.
The applicant asserted by letter received by the Tribunal on 30 June 2011 that its representative had phoned the Tribunal a short time prior to mediation and that the Tribunal advised that “as I had called that was sufficient as mediation can be conducted by telephone” and that the application would be “set down for a hearing and we would hear in approx 3 weeks”.
In its form 43 application for reopening the applicant further asserted that it was informed “that this matter would be listed for hearing because the respondent had failed to appear”. The reopening application was heard and dismissed on 3 August 2011 with written reasons delivered 30 November 2011.
The current application
The current application filed on 9 August 2011 seeks late payment and quarterly payments on the same bases as that filed on 24 December 2010 as follows:
§ Invoice 00011971 dated 12 March 2010 for late payment of an overdue invoice $33.00;
§ Invoice 00012842 dated 22 July 2010 for advertising on hold agreement quarterly paid in advance for period 6/8/10 to 6/11/10 $285.29;
§ Invoice 00013432 dated 22 October 2010 for advertising on hold agreement quarterly paid in advance for period 6/11/10 to 6/2/11 $285.29;
§ Invoice 00013959 dated 17 January 2011 for advertising on hold agreement quarterly paid in advance for period 6/2/11 to 6/5/11 $285.29;
§ Invoice 00014473 dated 15 April 2011 for advertising on hold agreement quarterly paid in advance for period 6/5/11 to 6/8/11 $285.29;
§ Invoice 00014964 dated 15 July 2011 for advertising on hold agreement quarterly paid in advance for period 6/8/11 to 6/11/11 $285.29;
§ Total $1,459.45.
§ Invoices numbers 00011971, 00012842 and 00013432 were the subject of application 3653-10 previously dismissed.
On 8 September 2011 the applicant requested that a default decision be entered. Such request was rightly refused as three of the invoices referred to in the application were in fact identical to the three invoices forming the substance of application 3653-10. Leave was required pursuant to section 49(2) of the QCAT Act to proceed with the current application. On 11 October 2011 the Tribunal directed the applicant to make submissions in support of a grant of leave to start that part of the proceeding the subject of proceeding 3653-10 by 21 October 2011.
The respondent was directed to make submissions in response by 31 October 2011. The applicant made no submissions as directed.
On 17 November 2011 the Tribunal refused the applicant’s request for a default decision, accepted the respondent’s response filed 13 September 2011, directed service of that response and the respondent’s additional application to strike out the applicant’s claim also filed 13 September 2011 and to exchange submissions by 9 December 2011.
On 11 January 2012 the applicant made application to delete those three invoices the subject of application 3653-10 from this current application and add one further recent invoice. Additionally it sought dismissal of the respondent’s application to strike out the applicant’s claim. No submissions accompany the application.
Issues to be determined
Does the applicant’s application to amend (and if allowed by the Tribunal) serve to now preclude the operation of section 49(2) QCAT Act such that the applicant is entitled to proceed to hearing without leave.
Does the doctrine of res judicata apply such that the application ought properly be struck out in any event.
Determination of issues
Section 49 of the QCAT imposes a restriction, in this case, on the applicant bringing the same or partly the same application before the Tribunal where the applicant’s application has previously been dismissed. It is prescriptive. Section 49(2) of the QCAT Act makes it clear that this application “cannot be started before the Tribunal without the leave of the President or Deputy President”. The restriction applies where the cause of action has been determined or part of such cause of action determined previously. The prerequisite of leave is a condition precedent i.e. a safeguard that itself gives effect to the doctrine of res judicata (Latin for matter (already) judged) which states in its simplest form that a matter once adjudged cannot be raised again in the same Court or a different Court. This prevents injustice to parties in a case that is concluded. The doctrine is primarily a cause of action estoppel.
The Tribunal has the obligation to deal with matters in a way that is accessible, fair, just, economical, informal and quick.
Whilst it is the case that the respondent’s application to strike out this application predates the applicant’s application to amend it is the case also that the effect of the applicant’s amendment is to take its application outside the operation of section 49(2) of the QCAT Act i.e. the application as amended would not enliven the operation of section 49(2) nor the principle of res judicata which it embraces. To apply section 49(2) would not accord with the Tribunal’s obligation to be fair, just, economical and quick. No prejudice or irreparable harm is occasioned to the respondent rather, the application proceeds exclusive of those matters raised in application 3653-10. It is fair and just and only right that the issues raised in this application be determined particularly in circumstances where issues though similar have not been previously determined/struck out but rather dismissed for want of proper attendance.
The preclusion envisaged in section 49(2) of the QCAT Act and the doctrine of res judicata ought not apply where the remedy now sought is in respect of breaches other than those previously claimed.
Orders
The application by the applicant filed 11 January 2012 to amend its application filed 9 August 2011 is allowed.
The application by the respondent filed 13 September 2011 to strike out the applicant’s application is refused.
The application is set for hearing on 16th day of April 2012 with a hearing notice to be furnished to the parties.
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