Cox Industries (Australia) Pty Ltd v Burns [2015] QCATA 91

CITATION: Cox Industries (Australia) Pty Ltd v Burns [2015] QCATA 91 PARTIES: Cox Industries (Australia) Pty Ltd (Applicant/Appellant) v Neil Burns Maree Burns (Respondents) APPLICATION NUMBER: APL040-15 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: A/Deputy President Stilgoe OAM DELIVERED ON: 22 June 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 27 January 2015 is set aside. 4. The application for miscellaneous matters filed 20 January 2015 is dismissed. CATCHWORDS: APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – CONSUMER CLAIM – where claim for faulty product – where mediation – where agreement – where mediation agreement contained self-executing order – where self- executing order took effect – where application for miscellaneous matters after self-executing order took effect – where tribunal reinstated original claim – whether tribunal had power to reinstate claim - whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 3(b), 29, 85(5), 133, 135, 139 FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268. -- 1 of 4 -- 2 Rintoul v State of Queensland & Ors [2015] QCA 79 Pickering v McArthur [2005] QCA 294 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] On 23 December 2011, Neil and Maree Burns bought a Cox Garden Recycler. It came with a 12 month warranty from Cox Industries (Australia) Pty Ltd. [2] In 2013, Mr and Ms Burns formed the view that the recycler had a fault from manufacture. They returned the recycler to the supplier, who forwarded the problem on to Cox. Cox denied liability, claiming the fault was not covered by its warranty. [3] In 2014, Mr and Ms Burns confirmed to their satisfaction that the fault was a defect of manufacture. They filed a claim in the tribunal at Mareeba. [4] The tribunal referred the dispute to mediation. The parties resolved their differences. Under the terms of the settlement agreement Cox was to examine the recycler and provide a report by email within 2 business days of the report being available. They agreed that, if one party did not comply with the terms of the agreement, the other could apply to the tribunal for an order giving effect to the settlement pursuant to s 85(5) of the QCAT Act. [5] The agreement also contained this clause: Parties seek that the order for withdrawal is to take effect from the 30.11.14 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. [6] On 20 January 2015, Mr and Ms Burns filed an application asking that the claim be relisted for hearing, giving effect to the settlement and that Cox pay them their claim. [7] The tribunal listed the application for hearing on 12 January 0215. Cox did not appear at the hearing. The tribunal adjourned the hearing to 27 January 2015. Again, Cox did not appear. A Magistrate, sitting in the minor civil disputes jurisdiction of the tribunal, ordered Cox pay Mr and Ms Burns $1,755. [8] Cox wants to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is -- 2 of 4 -- 3 necessary.1 Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.2 [9] Cox says that it did comply with the terms of the settlement agreement but, because of an error in its transcription of Mr and Ms Burns’ email address, it did not send the email to the correct address. It is silent about its non- attendance at the hearing on 12 January 2015. It says that it received the notice of the adjourned hearing on 22 January 2015, only 2 business days before the hearing. It says that it contacted the tribunal’s 1300 number and was advised that its attendance at the hearing was not required. [10] None of the matters raised by Cox is a valid ground of appeal. Cox’s failure to correctly identify the email address, or to follow up Mr and Ms Burns with a phone call, is not an error of the tribunal. [11] The tribunal’s 1300 number does not give legal advice. It may give information on procedure, but it is of a general nature and is responsive to the information provided by the caller. The 1300 operators are in Brisbane. None of them would have any access to a file from Mareeba. Therefore, none of them could have advised Cox on the specific procedural problem it faced. Although the tribunal is obliged to ensure that parties have a proper understanding of the practices and procedures of the tribunal3, that obligation cannot extend to situations such as this where a commercial entity makes an inquiry on the general inquiry telephone number. [12] However, for another reason, leave to appeal should be granted. [13] The reason is a matter that the learned Magistrate touched on at the hearing on 27 January 20154. The agreement provided specifically that, unless a party notified the tribunal before 31 November 2014, an order withdrawing Mr and Ms Burns’ claim would take effect. It was a self-executing order that required nothing more from the parties or the tribunal to take effect. [14] Mr and Ms Burns did not notify the tribunal in writing prior to 30 November 2014. On 1 December 2014, the order took effect, the claim was withdrawn and the proceeding was finalised. The application for miscellaneous matters Mr and Ms Burns filed on 20 January 2015 was out of time and, because the proceedings were finalised, the tribunal had no jurisdiction to consider it. [15] The learned Magistrate treated Mr and Ms Burns’ application as an application to “reinstate” the original claim. The learned Magistrate does not articulate the source of his power to “reinstate” a claim that was regularly finalised. A party can apply to renew a final decision5 but that is not what Mr 1 QCAT Act s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294 at [3]. 3 QCAT Act s 29. 4 Transcript page 1-4, lines 4 – 6; 10 – 11. 5 QCAT Act s 133. -- 3 of 4 -- 4 and Ms Burns wanted to achieve. The tribunal may correct a mistake6, but it did not make a mistake. The tribunal may reopen a proceeding if there is a ground for reopening7 but neither of the reopening grounds apply. [16] The Court of Appeal has recently held8 that s 61 of the QCAT Act empowers the tribunal to reopen a proceeding, although it emphasised that the power should be exercised with caution. It referred to the decision of Wilson J in FAI General Insurance Co Ltd v Southern Cross Exploration NL9: It is a remedial provision which confers on a court a broad power to relieve against injustice. The discretion so conferred is not readily to be limited by judicial fiat. The fact that it manifestly is a power to be exercised with caution and, in the case of conditional orders, with due regard to the public policy centred in the finality of litigation does not warrant an arbitrary limitation of the power itself, not expressed in the words of the rule, so as to deny its capacity to apply to circumstances such as those which are to be found in the present case. It would be wrong to so read the rule as to deny to a court power to prevent injustice in circumstances where the party subject to a conditional order ought to be excused from non-compliance. [17] Mr and Ms Burns’ situation is not one which justifies the exercise of the remedial power to reopen the proceeding. The settlement agreement gave a time for action. They did not take action because they were overseas and not able to check their emails10. That is not a sufficient reason for the tribunal to intervene. Mr and Ms Burns had an obligation to protect their own interests in the agreement. [18] If they had filed an application prior to 30 November 2014, Mr and Ms Burns could have relied on s 85(5) of the QCAT Act to ask the tribunal to make orders necessary to give effect to the settlement. Because their application was out of time, such an order was no longer possible. The appropriate course for Mr and Ms Burns then was to sue on the agreement. The tribunal has no jurisdiction for actions for breach of agreement unless it is also a claim under the Australian Consumer Law. The settlement agreement was not such an agreement. [19] Leave to appeal should be granted and the appeal allowed. The decision of 27 January 2015 is set aside. The application for miscellaneous matters is dismissed. 6 QCAT Act s 135. 7 QCAT Act s 139. 8 Rintoul v State of Queensland & Ors [2015] QCA 79. 9 (1988) 165 CLR 268 at 283-284. 10 Transcript page 1-4, lines 28 – 31. -- 4 of 4 --