Zimmatore v Ayurveda College Pty Ltd
[2011] QCATA 132
•26 May 2011
| CITATION: | Zimmatore v Ayurveda College Pty Ltd [2011] QCATA 132 |
| PARTIES: | Mrs Noemi Zimmatore (Applicant/Appellant) |
| v | |
| Ayurveda College Pty Ltd (Respondent) |
| APPLICATION NUMBER: | APL282-10 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member |
| DELIVERED ON: | 26 May 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal refused. |
| CATCHWORDS: | Minor Civil Dispute – applicant failed to attend hearing but filed evidence in response to the claim – whether denial of natural justice – consideration by the Tribunal on the merits – no error or law or fact established Queensland Civil and Administrative Tribunal Act 2009, s 143(2) QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
In November 2007 Mrs Zimmatore paid the respondent $7,500.00 to undertake a Certificate IV in Lifestyle Consultation using the Ayurveda methodology. The course had duration of six (6) months and at the conclusion of the course, Mrs Zimmatore expected to be given the relevant certificate.
Mrs Zimmatore did not pass the final exams and then fell into dispute with the respondent. It was agreed she could resit the exams but when she did she found they were entirely different to the earlier exams and were in fact much harder. Again she failed. She then asked for a refund of the $7,500.00 and when that was not forthcoming, she filed an application for a Minor Civil Dispute in QCAT.
There were difficulties in the pre-hearing stages because the respondent’s representative, Mr Chandler, did not attend mediation and in fact did not attend the hearing. It also seems, from the perusal of the Minor Civil Dispute file that no response was filed.
In any event, when the matter came on for hearing the respondent had filed material which was described by the learned adjudicator as “voluminous” and she proceeded to hear the matter on the material that was before her. The decision was reserved and on 2 September 2010 compressive reasons were given and an order was made that the respondent pay to Mrs Zimmatore the sum of $7, 500.00.
Subsequent to that decision, on 8 September 2010 the respondent applied for a reopening. The grounds for the reopening were that Mr Chandler had surgery to his foot and he was unable to attend the hearing. Those matters were considered by a Tribunal member and an order was made dismissing the application to reopen on 15 October 2010.
After the application to reopen was dismissed, the respondent filed an application for leave to appeal or appeal on 20 October 2010. The grounds for appeal are similar to those set out in the application to reopen. Further, the respondent contends that by reason of Mr Chandler having had a reasonable excuse for not attending the Tribunal hearing, there was a denial of natural justice. The relief sought in the appeal was that the case be reopened and that the respondent be granted a “fair, unprejudiced, indiscriminative hearing”. Apart from the denial of natural justice, the application for leave to appeal does not attempt to identify any error on the part of the learned Tribunal adjudicator. There is of course no right of appeal from a refusal to reopen an application[1] therefore, for leave to be granted the applicant must identify some error on the part of the Tribunal member in coming to the decision that she did.
[1] QCAT Act, section 139 (5).
The question of whether or not leave to appeal should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?[2] Is there a reasonable prospect that the applicant will obtain substantive relief?[3] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[4] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[5]
[2] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[3] Cachia v Grech [2009] NSWCA 232 at [13].
[4] QUYD Pty Ltd v Marvass Pty Ltd (supra).
[5]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
The complaint made here is that the Tribunal should not have proceeded in Mr Chandler’s absence. It seems that the Tribunal member was aware of this circumstance and on the basis on the material filed by him, on behalf of the respondent, it was intended that the Tribunal would proceed to hear the matter in his absence. Mr Chandler could have arranged for a representative to attend the hearing in his absence if he so wished. There was nothing incorrect in the Tribunal’s decision to proceed in his absence under those circumstances. There is an obligation on the Tribunal to make orders that it considers to be fair and equitable to the parties[6] and the reasons given by the learned adjudicator demonstrate that she did take all matters into account in coming to her decision. There is an obligation, which is not unreasonable in the Minor Civil Dispute jurisdiction, that the parties will act in their own best interest. This could have easily been achieved by Mr Chandler if he wished, despite his personal circumstances.
[6] QCAT Act section 13 (1).
It seems to me, that despite the respondent’s contention, there has not been a denial of natural justice, even if Mr Chandler was present at the hearing, he could do no more than reiterate the case that he had presented in the documentation filed for the hearing.
More importantly, the respondent does not identify in the error on the part of the learned adjudicator, nor is any apparent. In those circumstances, leave to appeal must be refused.
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