Australian Workout Publications Pty Ltd & Anor v Dougherty [2015] QCATA 74

CITATION: Australian Workout Publications Pty Ltd & anor v Dougherty [2015] QCATA 74 PARTIES: Australian Workout Publications Pty Ltd Muscle Up Media Pty Ltd (Applicants/Appellants) v Noramn Dougherty (Respondent) APPLICATION NUMBER: APL093 -15 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe OAM DELIVERED ON: 10 June 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 23 February 2015 is set aside. 4. The claim is remitted to the tribunal for rehearing. CATCHWORDS: APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – where tribunal hearing – where decision reserved – where adjudicator did not deliver decision before appointment expired – where tribunal ordered fresh hearing – where reasons for fresh hearing not communicated to parties – where respondent failed to attend fresh hearing – whether procedural fairness - whether grounds for leave to appeal 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). -- 1 of 2 -- 2 REASONS FOR DECISION [1] Norman Dougherty claims that he was terminated from his employment without notice. He filed a minor debt claim for $5,280. [2] The tribunal heard Mr Dougherty’s claim on 29 October 2014 and reserved its decision. Unfortunately, the Adjudicator who presided at that hearing did not publish a decision before her term as Adjudicator expired on 1 December 2015. [3] The tribunal determined that it should re-hear Mr Dougherty’s claim. It listed the dispute for a further hearing, issued notices, but did not explain the reason why it was relisted. Mr Dougherty attended the fresh hearing. Australian Workout Publications Pty Ltd and Muscle Up Media Pty Ltd did not attend. The tribunal ordered Australian Workout Publications Pty Ltd and Muscle Up Media Pty Ltd pay Mr Dougherty $5,105.00 [4] Australian Workout Publications Pty Ltd and Muscle Up Media Pty Ltd want to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is 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 [5] The applicants submit that they had no knowledge of the new hearing, did not understand why there was a new hearing because they thought the decision was reserved, and would have attended if they had known. [6] Mr Dougherty points out that he received the same notice and he understood that he was required to attend the fresh hearing. That may be so but the appellants should not be penalised by the tribunal’s failure to deliver a decision from the first hearing or its failure to explain adequately the reason why the second hearing was necessary. The learned Adjudicator who conducted the second hearing did so properly but the brevity of the tribunal notices resulted in a failure to provide procedural fairness. [7] Regrettably, as this dispute has already been heard twice, leave to appeal should be granted, the appeal allowed and the decision of 23 February 2015 set aside. For efficiency, the matter should be reheard before the same Adjudicator who presided on 23 February 2015 and it should be listed for hearing as soon as possible. 1 QCAT Act, s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294 at [3]. -- 2 of 2 --