Wimberley v Misevski
[2013] QCATA 223
•31 July 2013
| CITATION: | Wimberley v Misevski [2013] QCATA 223 |
| PARTIES: | Terry Wimberley (Appellant) |
| v | |
| Stevo Misevski (Respondent) |
| APPLICATION NUMBER: | APL157-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 25 July 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr J R Forbes, Member |
| DELIVERED ON: | 31 July 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal is refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where decision in default of appearance at hearing – where adjournment sought at short notice – where adjournment refused – whether reasonable excuse for non-attendance at hearing – whether applicants took reasonable care in own interests – whether error shown – whether leave should be granted – application for leave to appeal dismissed Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 32, 93, 137, 142 Brown v Northside First National [2011] QCATA 119 Harris v Foxworth Pty Ltd [2013] QCATA 133 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257 House v The King (1936) 55 CLR 499 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
This is an application for leave to appeal[1] from an Adjudicator’s decision, made on 25 March 2013, to award $9,113.80, including interest and filing fee, to the respondent Stevo Misevski.
[1] QCAT Act s 142(3)(a)(i).
Misevski claimed $8,684 against the appellant and his wife Trish Wimberley, being the balance of moneys due for building and painting work done at, and materials supplied to the Wimberleys’ premises at Advancetown, in the Gold Coast hinterland.
The Wimberleys filed a response[2] alleging incomplete and defective workmanship, but, as the Adjudicator found, the Wimberleys prevented Misevski from completing a small amount of work that remained to be done, and she awarded the full amount of the claim.
[2] On 15 October 2012.
Judgment was given against both Mr and Mrs Wimberley. However, only Terry Wimberley is on the record as appellant, while Trish Wimberley is named as his “representative”.[3]
[3] Application for leave to appeal filed 11 April 2013, part “A”.
The judgment against the Wimberleys was entered in default of their appearance at the hearing.[4] They do not claim that that they were unaware of the adjourned hearing date, namely 25 March 2013 at 2 pm. The record shows that a formal notice of that date and time was posted to their address for service on 21 December 2012, as shown in the affidavit of service of Royston Patience, sworn on the same day.
[4] QCAT Act s 93(2).
The application for leave to appeal is effectively an application for reopening on the ground that the Wimberleys had a reasonable excuse for not attending the hearing[5] and I shall consider the appeal on that basis,[6] subject to this proviso: As they have chosen to appeal instead of seeking a reopening, they must demonstrate error in the Adjudicator’s decision to finalise the matter in their absence.[7]
[5] QCAT Act s 137(a).
[6] Brown v Northside First National [2011] QCATA 119 at [4].
[7] Laing v Jacobson [2011] QCATA 37 at [12].
Trish Wimberley is said to be “an expert on the movement and distribution patterns of flying foxes”[8] and it appears that she and her husband conduct, a not-for-profit association known as the Australian Bat Clinic and Wildlife Trauma Centre at Advancetown.
[8] Email Terry Wimberley to Southport court house 20 March 2013.
On 20 March 2013 at 4.21 pm Terry Wimberley sent an email to the Southport Courthouse, where the hearing was to be held five days later, seeking an adjournment on these grounds:
We requested a shift in dates before and unfortunately must do so again. My wife Trish Wimberley ... has been called away to southern Sydney ... to attend to a colony of Flying Foxes in the Fairfield area. She doubts she will be back for at least two weeks as her last assignment at Warwick took about that time. Unfortunately the government has allowed permits to shift the [bat] camps ... Hopefully winter is when things settle down so we respectively [sic] request to shift the Court date to the week of 20 May if that is possible.
There is no evidence that the opponent was given notice of that application.
As acknowledged in their email of 20 March, the Wimberleys had already sought, and received, an adjournment of the original hearing date, namely 17 January 2013. On that occasion, at least, they gave the Tribunal more time to consider to their request, which reads in part:
We are requesting a change of date to the last week of March due to our work load at the Australian Bat Clinic that we run as a not for profit charity ... Our busiest time of the year runs from October thru mid-March ... At the moment we have in excess of 300 admissions that need medical attention and the babies need to be fed every four hours round the clock.[9]
[9] Email Wimberleys to Southport Courthouse 19 December 2012.
Responding favourably to that application, in the interests of ailing bats and “babies”, the Tribunal rescheduled the hearing to take place at the very time requested – 25 March 2013, in “the last week of March”, whereupon Mr Misevski’s patience for payment allegedly due in or about December 2011 was extended for two months.
The Tribunal’s reply to the second request for adjournment was sent just 21 minutes after the Wimberleys’ email arrived.[10] It told them that their request would be “put before the adjudicator and you will be notified of the outcome in due course”.
[10] Email Southport registry to Wimberleys, 20 March 2013 at 4.42 pm.
On 21 March 2013 the tribunal refused a further adjournment, thus confirming that the hearing would proceed on 25 March. A notice of that decision was posted to the Wimberleys’ address for service on 22 March 2013.[11]
[11] Certificate of registrar, Southport, 22 March 2013.
The Tribunal’s rules provide that a document required to be given to a party (other than an application for a minor debt claim) may be given by sending it by post to the relevant address.[12] “Relevant address” means, inter alia, “the service address in the [party’s] address for service”.[13] The Wimberleys’ address for service is, and at all material times has been 118 Narrow Leaf Road, Advancetown – the address to which the notice of refusal of adjournment was sent.
[12] Queensland Civil and Administrative Tribunal Rules 2009 (“the Rules”) rule 39(1)(b).
[13] Ibid, rule 39(2)(a).
However, the Wimberleys say that they received the said notice “after the fact”,[14] that is, after judgment was given on 25 March 2013. That may be the case, because 22 March 2013 (when the notice was posted) was a Friday, and the hearing took place on the following Monday afternoon.
[14] Application for leave to appeal Part C.
The Acts Interpretation Act 1954 (“AIA”) provides that, where an Act[15] requires or permits a document to be served on a person, it may be served by sending it by post to the place of residence or business of that person last known to the person serving the document.[16] The AIA goes on to provide that, where the law allows service by post, service is taken to have been effected at the time at which the letter would be delivered in the ordinary course of post, unless the contrary is proved.[17] According to standard maps of the Gold Coast area, Advancetown is approximately 21 kms from Southport. The only evidence of non-receipt is an unsworn assertion in the appeal application, but it is quite possible, if not probable, that the notice posted on 22 March 2013 did not arrive at the Wimberleys’ address before the hearing. However, as will be seen, the present decision does not turn upon an assumption that it did.
[15] “Act” includes subordinate legislation: AIA s 7(1).
[16] AIA s 39(1)(a)(ii).
[17] Ibid s 39A(1)(b).
Ultimately the Tribunal must be satisfied that the Wimberleys had a reasonable excuse for their non-attendance. If the notice did arrive late, as they assert, then, for all they knew, the hearing was proceeding on 25 March 2013. The explanation for their absence was an unsworn, unsupported email to the Tribunal just five days before the hearing, with a weekend intervening. That email claimed that Mrs Wimberley was engaged on volunteer work in Sydney, but did not indicate that Mr Wimberley was with her. In any event, the Wimberleys were told of the hearing date – already postponed at their request – three months in advance.[18] It is unacceptable that they should take the Tribunal’s further indulgence for granted, just three business days before the crucial time. It should have been obvious to them that the Tribunal would have considerable difficulty in considering their adjournment application, and communicating its decision to them in less than two business days (remembering that the request was made after 4 pm on Thursday 20 March, and the hearing was listed for 2 pm on the following Monday).
[18] Material on file shows that the notice of hearing on 25 March 2013 was posted to the
Wimberleys on 21 December 2012.
Further, the vague, unsworn assertion of Mrs Wimberley’s absence in Sydney does not demonstrate that her husband could not attend the hearing, even if his attendance was only to seek an adjournment once again. Given three months’ notice of a hearing date that had already been postponed for a further two months for their convenience, their assumption that Mrs Wimberley’s worthy volunteer work with flying foxes was a reasonable excuse for preferring that engagement to the Tribunal’s and Mr Misevski’s convenience is simply not acceptable.
Notice or no notice of the refusal of a second adjournment, it was incumbent upon the Wimberleys to establish close contact with the Southport registry, so as to ensure, on hearing that their application had been dismissed, that at least one of them was before the Tribunal on the afternoon of 25 March. Absent confirmation of another adjournment, one or both of them should have attended at the appointed hour.
In the circumstances, their passivity is quite unsatisfactory. The Tribunal has repeatedly made the point that parties must be active and astute to ensure that their case is carried forward. As the President observed in Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd[19]:
The Minor Civil Disputes jurisdiction, in particular, is one in which the Tribunal has a broad jurisdiction to make orders that it considers fair and equitable, including, importantly, orders dismissing an application if it considers that course to be appropriate. It is common knowledge that the jurisdiction is a busy and demanding one, in which parties are expected to present their own cases, and act in their own interests ... That statutory regime places obligations upon parties themselves: to take care in their dealings with Tribunal matters, and to act in their own best interests.
[19] [2010] QCATA 69 at [9] - [10].
The Tribunal has frequently repeated that warning and advice[20], sometimes relying on the dicta of the High Court in Aon Risk Services Australia Limited v Australian National University[21]:
Statements ... which suggest only a limited application for case management do not rest upon a principle that has been carefully worked out ... On the contrary, [those] statements are not consonant with this Court’s earlier recognition of the effects of delay, not only on the parties to the proceedings in question, but upon the court and other litigants.
[20] See for examples Harris v Foxworth Pty Ltd [2013] QCATA 133 at [18]; Creeke v Raine
and Horne Real Estate Mossman [2011] QCATA 226 at [13]; Smallwood v Ross Island Hotel [2012] QCAT 651 at [18]-[19]; Davis v Blocksidge [2012] QCAT 211 at [28]; The Pot Man Pty Ltd v Reaoch [2011] QCATA 318 at [8]; Brown v Northside First National [2011] QCATA 119 at [7].
[21] (2009) 239 CLR 175 at 217 per Gummow, Hayne, Crennan, Kiefel and Bell JJ.
Instead of merely sending a presumptuous email to the Tribunal at the eleventh hour, and then adopting the passive philosophy that no news was good news, the Wimberleys should have contacted the Southport registry on Friday 22 March 2013, and again, early on the following Monday, to ascertain whether their presence was still required on the latter day.
As it was, the Adjudicator had a lawful discretion to enter judgment in their absence. She was entitled to take the view that they were simply trying “to postpone the evil day.”[22] On an application for leave to appeal it falls to the applicant to show, arguably at least, that the discretion was exercised erroneously, thus causing a substantial miscarriage of justice[23], or raising a question of public importance. Appeals against discretionary decisions face searching legal tests[24], and I am satisfied that, if leave were granted, the present appellants would have no reasonable prospect of success.
[22] Audio recording of hearing 25 March 2013 (Adjudicator).
[23] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257 at [6]; Drew v
Bundaberg Regional Council [2012] QPELR 350; [2011] QCA 359 at [18].
[24] House v The King (1936) 55 CLR 499; Sassoon v Rose [2013] NSWCA 220; D'Amore
v Independent Commission Against Corruption [2013] NSWCA 187 at [86].
Accordingly, leave to appeal will be refused.
ORDER
Leave to appeal is refused.
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