Dixonbuild Pty Ltd v North Quay Lending Pty Ltd [2014] QCAT 489

CITATION: Dixonbuild Pty Ltd v North Quay Lending Pty Ltd [2014] QCAT 489 PARTIES: Dixonbuild Pty Ltd (Applicant) v North Quay Lending Pty Ltd (Respondent) APPLICATION NUMBER: REO010-14 MATTER TYPE: Building Matter HEARD AT: On the papers DECISION OF: Member White DELIVERED ON: 1 October 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. That the application to reopen proceeding is dismissed. CATCHWORDS: REOPENING – where applicant failed to attend a final hearing – where applicant’s clerical error concerning the diarising of the hearing date – where the applicant failed to file any statements of evidence or witness statements – where the applicant failed to comply with Directions – where Tribunal then proceeded to decide the proceeding on a final basis under s 72 of the Queensland Civil and Administrative Tribunal Act 2009 – whether reopening ground exists – whether matter could conveniently be dealt with by way of reopening Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 3 (b), 61, 93, 137, 139 Breezeway Develpments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69, [13] Lillas & Loel Lawyers Pty Ltd v Celona & Ors [2014] VSCA 19 Aon Risk Services Australia Limited v Australian National University [2009] 239 CLR 175 at 217 -- 1 of 8 -- 2 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] The Applicant, Dixonbuild Pty Ltd failed to appear at a final hearing, which was set down for 2 May 2014. The Respondent, North Quay Lending Pty Ltd appeared. The Tribunal dismissed the Application and determined North Quay Lending’s Counter Claim. The Tribunal ordered Dixonbuild to pay North Quay Lending liquidated damages in the sum of $13,200.00 and the balance of the deposit for work to be carried out by Dixonbuild for North Quay Lending under Building Contracts date 23 May 201 and 13 August 2010 in the sum of $4,158.13 plus accruals, to North Quay Lending. [2] Dixonbuild did not file or serve any statements of evidence or witness statements as directed by the Tribunal on 6 February 2014 and 28 March 2014. At the above Directions Hearing, the proceedings were set down for hearing on 2 May 2014. There is no contest that both parties were notified of the hearing date. [3] Although North Quay Lending did not file any statements of evidence or witness statements prior to the hearing, North Quay Lending had served on its statements of evidence and witness statements on Dixonbuild at 3.13 p.m. on 1 May 2014. [4] The Tribunal granted North Quay Lending leave to file its statements of evidence and witness statements on 2 May 2014. [5] Dixonbuild now seeks orders reopening the proceedings.1 North Quay Lending opposes the Application. [6] Dixonbuild relies upon its Submissions and the affidavits by Timothy Bartholomaeus, Jason Fraser, Rhyannan Alic Chaseling, Kylie Maree Thornton, Andrea Roudenko and Peter Chucherko in support of the Application for Re-Opening. These affidavits include evidence about not only the reopening application but also the initiating application. [7] Dixonbuild submits: (a) That it has a reasonable excuse for not attending the hearing, due to: (i) a complete breakdown in the management of the proceedings; (ii) the deadlines relevant to the matter not being entered in its diary; and (iii) the solicitor who usually attended to these sorts of matters had withdrawn at a very late stage due to a fiduciary conflict. 1 An application for reopening may be made by a party: QCAT Act s 138. -- 2 of 8 -- 3 (b) That there is a serious issue to be tried and there are triable issues to be dealt with in the hearing. (c) That there were non-compliance of Tribunal Orders by both Dixonbuild and North Quay Lending. (d) That the Tribunal must afford and be seen to afford natural justice to Dixonbuild, free from any suggestion or actual or apprehended bias. [8] North Quay Lending relies upon its Submissions and submits: (a) That the reasons for not appearing at the hearing are not a reasonable excuse; (b) That as a result of the failure of Dixonbuild in not filing any statements of evidence and witnesses, North Quay Lending had to disclose its entire case before Dixonbuild had filed any evidence; (c) That there was no new evidence filed by Dixonbuild in respect to the current Application for Re-Opening, as Dixonbuild had not filed any evidence prior to the hearing; (d) That it is irrelevant that a serious issue had to be tried; and (e) That the ground of Tribunal bias is illogical and scandalous. The basis for reopening of proceedings [9] The Tribunal may grant a reopening on the application of a party only if it considers a reopening ground exists2 and that it can be effectively and conveniently dealt with by reopening.3 Reopening grounds are defined4: (a) If a party does not appear at a hearing, do they have a reasonable excuse for not attending?5 (b) Would the party suffer substantial injustice if reopening was refused because of significant new evidence, which was not available when the proceeding was first heard and decided?6 Does a reopening ground exist: s 139(4)(a)? Does Dixonbuild have a reasonable excuse for not attending the hearing? [10] The only evidence on this point is that of the Managing Director of Dixonbuild, Mr Bartholomaeus in his statement of 29 May 2014. [11] He states: Due to a clerical error within my office the important dates in relevance to this case were not entered into my diary and therefore I failed to attend to this case accordingly and to have some person attend before the tribunal on 2nd May 2014 at 9.30 a.m. 2 QCAT Act s 139(4)(a). 3 QCAT Act s 139(4)(b). 4 QCAT Act Schedule 3, reopening ground. 5 QCAT Act Schedule 3, reopening ground (a). 6 QCAT Act Schedule 3, reopening ground (b). -- 3 of 8 -- 4 The solicitor I would usually use to attend to these matters removed himself from the case at a very late date due to a stated conflict of interest which also added to my confusion of time frames regarding this case. [12] Mr Bartholomaeus does not provide an explanation as how the clerical error actually happened. [13] Dixonbuild was present at two direction hearings on 6 February 2014 and 28 March 2014 when the hearing date was set down. The Tribunal by way of Notice of Hearing also notified Dixonbuild of the hearing date on 6 February 2014. [14] The Directions Orders also directed the parties file statements of evidence and witness statements by certain dates and no party would be allowed to present any evidence at the hearing that is not contained in the written statements without justifying the need to such additional evidence to the Tribunal. [15] The Notice of 6 February 2014 also stated that should a party fail to appear at the hearing, the Tribunal may proceed and make orders in their absence. [16] It was therefore very clear that the filing of statements and appearing could have significant consequences should there be non-compliance. [17] I find that Dixonbuild would have known the importance of failing to file statements and not appearing on the hearing date. [18] To accept that this was a clerical error, Dixonbuild would need to explain why the hearing date was not noted in its diary following the Directions Hearings on 6 February 2014 and 28 March 2014, and after being notified of the hearing date by the Tribunal. Dixonbuild has not provided any explanation. [19] Dixonbuild through the evidence of Ms Chaseling and Thornton provides an explanation of the events of 1 & 2 May 2014. The documents, which were delivered by North Quay Lending on 1 May 2014, were received by Ms Thornton, who delivered them to Ms Chaseling. Ms Chaseling brought them to the attention of Mr Bartholomaeus, the Managing Director of Dixonbuild. An email was sent to Dixonbuild’s Solicitors, Cardew Salmon at 8.29 a.m. on 2 May 2014, advising them that the folder had been delivered. The folder was never couriered to the solicitors. The reason given by Ms Chaseling was that the QCAT hearing had already commenced at 9.30 a.m. Ms Chaseling stated: The folder was never couriered that day due to the QCAT hearing already commencing on Friday the 2nd May 2014 at 9.30 a.m. [20] I do not accept that Dixonbuild was not aware of the date and time of the hearing. Dixonbuild was advised of the hearing date at the Directions Hearings and the Notice sent by the QCAT Registry. Also, a number of people in the employ of Dixonbuild were aware of documents having been served on 1 May 2014, including the Managing Director, -- 4 of 8 -- 5 Mr Bartholomaeus. Dixonbuild’s lawyers, Cardew Salmon were also advised. It seems extraordinary that no one took any steps to contact the Tribunal to clarify the status of the proceedings or to appear at the hearing either at 9.30 a.m. or later. [21] I do not accept that Dixonbuild did not appear due to a clerical error. [22] In addition, Dixonbuild must take responsibility for the way in which it managed and conducted its case. Justice Wilson, in Breezeway Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd7emphasised: [10] 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. QCAT’s resources for resolution of disputes serve, as the High Court has recently observed ‘….the public as a whole, not merely the parties to the proceedings’8 [12] In the context of the legislation and the demands upon public resources like those which fund QCAT it is not unreasonably to impose, upon a party, an expectation and an obligation that it will ensure it acts in its own best interest, or accept the consequences… [23] Accordingly, Dixonbuild should have acted in its own best interest. It ultimately bears the responsibility and the consequences for failing to appear at the hearing, and not complying with the Tribunal’s Directions. I discuss this later in my decision. [24] Irrespective of the alleged clerical error concerning notations in a diary, Dixonbuild has not explained or provided any evidence why it failed to file any statements of evidence or witness statements as directed by the Tribunal. [25] Dixonbuild submits that North Quay Lending should have followed it up when it failed to file its statements of evidence and witness statements by the due date. It submits that this should have been done as a matter of courtesy. There is no obligation on a party to extend such courtesy. Dixonbuild should have been well aware of its obligations and the consequences of not complying with Tribunal Directions9. The due date for filing these documents was 4 April 2014, almost one month prior to the hearing date. [26] Dixonbuild submits that the solicitor who usually attended to these matters had withdrawn at a very late stage due to a fiduciary conflict. There is no evidence to support this submission. [27] Dixonbuild relied upon the same reason to extend the Directions for the filing of statements of evidence and submission, on 28 March 2014. In its Application dated 19 March 2014 Dixonbuild stated: 7 Breezeway Develpments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69, [10]. 8 Aon Risk Services Australia Limited v Australian National University [2009] 239 CLR 175, at 217, para [113]. 9 Paragraph 22 & 23. -- 5 of 8 -- 6 The appointed Solicitor on behalf of the Applicant has advised that they are unable to represent the Applicant as they have previously acted on behalf of the Respondent in other matters and would result in a conflict of interest. [28] I find that Dixonbuild was afforded sufficient time to prepare its case notwithstanding a change of solicitors. [29] This is not a case where Dixonbuild submits that it simply forgot. Had that been the case, than I may have been persuaded to allow the application10. [30] I have considered the evidence and submissions of Dixonbuild and having perused the transcript, taking into account all of the above matters, I find that Dixonbuild has not provided a reasonable excuse for not attending the hearing. It was reasonable for the Tribunal to proceed on 2 May 2014. Dixonbuild did not attend and Tribunal having been satisfied that proper notice had been given to Dixonbuild, proceeded with the hearing pursuant to s 93 of the Act11. [31] Would Dixonbuild suffer a substantial injustice because of significant new evidence? [32] Although Dixonbuild has not made any submission on this point, I consider that I am duty bound to turn my mind to this issue, as this is the only other ground to consider the reopening of the initial Application. Dixonbuild’s other submissions are not relevant considerations. [33] Dixonbuild has now filed statements of evidence, witness’s statements and exhibited documents in support of its case. I accept this is the evidence, which it would have relied upon at the hearing on 2 May 2014. Had Dixonbuild filed these statements at the proper time, the Tribunal would have considered them in determining the matters in dispute between the parties. It may be the case that there are triable issues, however that does not constitute a proper ground for reopening. [34] The question, which emerges, is whether the Tribunal should give Dixonbuild a further opportunity to put its case, taking into account that Dixonbuild was afforded every opportunity to do so previously. [35] I accept the submission of North Quay Lending that this is not new evidence. All of the statements of evidence and witness statements, which Dixonbuild now relies upon were available and could have been filed prior to the hearing. The Application was filed on 24 January 2014. Tribunal Directions were made on 6 February and 28 March 2014. The events the subject to the dispute between parties, date back to 2010. [36] Dixonbuild does not seek to put new evidence. It seeks to put its entire case, which if it had complied with the Tribunal Directions, would have been taken into account in the determination of this matter. In effect, Dixonbuild seeks to re-litigate the matter. 10 Breezeway Develpments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCARA 69, [13] & Lillas & Loel Lawyers Pty Ltd v Celona & Ors [2014] VSCA 19. 11 QCAT Act s 93. -- 6 of 8 -- 7 [37] The other question, which emerges, is whether Dixonbuild would suffer a substantial injustice if the application is not reopened. [38] This question must be read in conjunction with the issue of new evidence. As I have found there is no new evidence, which was not available at the hearing, then it follows that Dixonbuild would not suffer a substantial injustice for this reason. [39] Dixonbuild also submits, ‘the Tribunal must afford and be seen to afford natural justice to the Applicant, free from any suggestion or actual or apprehended bias’. This is a serious matter, which goes to the integrity of the Tribunal. The submission asserts that the Tribunal was bias because: (a) Mr Le Mass, a solicitor, Director of North Quay Lending and Member of this Tribunal, was allowed to appear; (b) Mr Le Mass was allowed to project himself into the decision making; (c) The Tribunal was dependent on Mr Le Mass’s expertise; and (d) The hearing proceeded in the absence of Dixonbuild. [40] The Tribunal is obliged under the Act to observe the rules of natural justice and to deal with matters in an accessible, fair, just, economical, informal and quick manner12. The Tribunal may also waive compliance with procedural requirements under the QCAT Act or the Rules13. [41] The transcript demonstrates that the Tribunal proceeded in a way, which was fair and just to Dixonbuild noting that it failed to appear and had not filed any statements of evidence or witness statements. At the time, it would have been a reasonable conclusion that Dixonbuild had abandoned its claim. I have already found on the evidence presented, Dixonbuild was given every opportunity to prosecute its case. [42] I reject Dixonbuild’s submission that the Tribunal allowed Mr Le Mass to project himself into the decision-making and was dependent on his expertise. The transcript demonstrates that the Tribunal questioned Mr Le Mass in respect to the facts and his submission. The Tribunal was able to identify the issues and evidence relevant to the dispute. Dixonbuild has misconceived the Tribunal’s acceptance of Mr Le Mass’s submission as relying upon his expertise. [43] I also find that Mr Le Mass was entitled to appear on behalf of North Quay Lending on the basis that he was a Director of North Quay Lending, notwithstanding that he was a solicitor and Member of the Tribunal. The Australian Solicitors Conduct Rules, on which Dixonbuild relies, do not apply in these circumstances. [44] It was fair and reasonable for the Tribunal to proceed in the absence of Dixonbuild, notwithstanding the service of the North Quay Lending’s 12 QCAT Act s 3(b) & 28(3)(a). 13 QCAT Act s 61. -- 7 of 8 -- 8 statements, the day before. Had Dixonbuild appeared, it could have made submissions concerning the admissibility of the statements. The issue of convenience: s 139(4)(b) [45] In light of my findings, it is not necessary to consider this section. Conclusions and Orders [46] Accordingly, I am satisfied that a reopening ground does not exist, in that Dixonbuild did not attend the hearing and did not have a reasonable excuse for not doing so. I am also satisfied that Dixonbuild would not suffer substantial injustice if reopening was refused because of significant new evidence, which was not available when the proceeding was first heard and decided. [47] I exercise my discretion not to grant the application for reopening. [48] Accordingly, the Application is dismissed. -- 8 of 8 --