Crawford v Commissioner of State Revenue [2014] QCAT 418

CITATION: Crawford v Commissioner of State Revenue [2014] QCAT 418 PARTIES: Daren Scott Crawford (Applicant) v Commissioner of State Revenue (Respondent) APPLICATION NUMBER: REO012-14 MATTER TYPE: General administrative review matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Hughes DELIVERED ON: 29 August 2014 DELIVERED AT: Brisbane ORDERS MADE: The application to reopen is dismissed. CATCHWORDS: APPLICATION TO REOPEN – where applicant did not attend compulsory conference – where self-executing orders made – whether proceeding heard and decided by Tribunal – where non-attendance at compulsory conference was not reason for dismissal - whether excuse for non-compliance with Tribunal direction is reopening ground - whether failing to understand document or receiving advice from Registry is reasonable excuse in any event - whether failure to attend compulsory conference due to diary erasure is reasonable excuse in any event - whether reopening ground established Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 28, 72, 136, 137, 138 and Schedule 3 Aon Risk Services Aust Ltd v. Australian National University (2009) 239 CLR 175 Breezeway Developments Pty Ltd v. ADG Hydraulics Pty Ltd [2010] QCATA 069 -- 1 of 7 -- 2 Creek v. Raine & Horne Real Estate Mossman [2011] QCATA 226 Crime and Corruption Commission v. Deputy Commissioner Stephan Gollschewski [2014] QCAT 359 Harris v. Foxworth Pty Ltd [2013] QCATA 133 Laker Paint Company Pty Ltd v. Bray [2013] QCATA 90 Mango Boulevard Pty Ltd v. Spencer & Ors [2010] QCA 207 Queensland Building Services Authority v. Queensland Civil and Administrative Tribunal & Anor [2013] QSC 167 Ramke Constructions Pty Ltd v. Queensland Building Services Authority [2012] QCAT 417 Rayner & Anor v. Trabme Pty Ltd t/as Elders Redcliffe [2013] QCATA 12 Ren v. Poolworld Pty Ltd [2011] QCAT 706 Rintoul v. State of Queensland & Ors (No. 2) [2014] QCAT 332 The Pot Man Pty Ltd v. Reaoch [2011] QCATA 318 Tilecorp Pty Ltd v. Pinnacle Seal Pty Ltd [2011] QCAT 52 W&E Carlsen Builders v. Tressider [2014] QCAT 131 Wimberley v. Misevski [2013] QCATA 223 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 (Qld). REASONS FOR DECISION What is this Application about? [1] Mr Daren Crawford did not comply with Tribunal directions. His application for review against the Commissioner of State Revenue was therefore dismissed. He now wants the Tribunal to reopen his application. Why was the Application dismissed? [2] On 14 February 2014, the Tribunal listed Mr Crawford’s review application for a compulsory conference on 3 June 2014.1 [3] Mr Crawford did not attend. 1 Directions dated 14 February 2014 at paragraph 7. -- 2 of 7 -- 3 [4] The Tribunal then directed Mr Crawford to file and deliver his response to the Commissioner’s statement of reasons and submissions by 17 June 2014.2 The Tribunal also directed that if Mr Crawford did not comply with this direction, then the application will be dismissed without further order of the Tribunal.3 [5] Mr Crawford did not file his response. [6] The President of the Tribunal recently confirmed that an application is dismissed upon non-compliance with a self-executing order: It is common practice of the tribunal that orders are made dismissing proceedings without further order for non-compliance with directions previously made. Such orders are referred to as “self-executing”, defined by the Oxford Dictionary as ‘operating or occurring automatically’, and take effect immediately on the lack of compliance with the relevant order.4 [7] Upon Mr Crawford’s failure to comply with the due date to file his response, his review application was dismissed without further order. [8] Mr Crawford’s review application was therefore automatically dismissed. Can Mr Crawford apply to reopen the Application? [9] A party to a proceeding may apply to the Tribunal to reopen the proceeding if a reopening ground exists.5 [10] A hearing of a proceeding includes a compulsory conference if the person presiding over the conference makes a decision adverse to the absent party and appropriate orders, including orders about costs.6 [11] The proceeding must have been heard and decided by the Tribunal.7 [12] The Tribunal made a decision at the compulsory conference to dismiss the review application in the event of non-compliance with a direction to Mr Crawford to file a response to the Commissioner’s statement of reasons and submissions.8 However, the Tribunal’s decision was not as a consequence of the matter being heard or decided by the Tribunal.9 [13] Rather, the order dismissing the review application is as a consequence of Mr Crawford’s procedural non-compliance being of sufficient gravity to warrant dismissal without being heard or decided by the Tribunal: 2 Directions dated 3 June 2014 at paragraph 3. 3 Directions dated 3 June 2014 at paragraph 4. 4 Rintoul v. State of Queensland & Ors (No. 2) [2014] QCAT 332 at paragraph [16]. 5 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 138(1). 6 Ibid s 137 and 72(1)(b)(i). 7 Ibid s 136. 8 Directions dated 3 June 2014 at paragraphs 3 and 4. 9 Queensland Building Services Authority v. Queensland Civil and Administrative Tribunal & Anor [2013] QSC 167; Ramke Constructions Pty Ltd v. Queensland Building Services Authority [2012] QCAT 417 at paragraphs [13] to [17]. -- 3 of 7 -- 4 (Orders to dismiss for want of prosecution and judgment for non- compliance with obligations to disclose documents under procedural rules or pursuant to an order for disclosure) have a common foundation in conduct by a party which is so procedurally deficient as to justify summary termination of the proceeding without regard to the merits. Plainly such judgments do not involve any actual determination on the merits and I see no reasonable basis for treating them as determining the merits of any issue.10 [14] This means that the proceeding has not been “heard and decided by the Tribunal”. The review application therefore cannot be reopened. [15] This alone suffices to dismiss the application to reopen. If Mr Crawford could apply to reopen the Application, is there a re- opening ground? Excuse for non-compliance with Tribunal Direction is not a reopening ground [16] Even if the proceeding could be reopened, a party must still establish a reopening ground - a reasonable excuse for not attending the hearing or significant new evidence since the proceeding was first heard and decided.11 [17] Mr Crawford’s non-attendance at the conference is not the precursor to dismissing his review application. It is his subsequent non-compliance with a direction from the conference that led to dismissal. [18] Mr Crawford’s reason for non-compliance with the directions is therefore not material to his application to reopen. This is because an excuse for non-compliance with a direction, even if reasonable, is not a reopening ground.12 Failing to understand document and receiving advice from Registry is not reasonable excuse for non-compliance with Tribunal Direction [19] Even if the Tribunal could consider Mr Crawford’s excuse for non- compliance with the Direction, in deciding whether to reopen the application, the Tribunal considers delay, wasted costs, the legitimate concerns of proper case management and the proper use of public resources.13 [20] Mr Crawford proffers the following as an excuse for not complying with the Tribunal’s direction: 10 Mango Boulevard Pty Ltd v. Spencer & Ors [2010] QCA 207, per Fraser JA at paragraph [116]. 11 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 138(1) and Schedule 3 definition of ‘reopening ground’. 12 Queensland Civil and Administrative Tribunal Act 2009 (Qld) Schedule 3 definition of ‘reopening ground’. 13 Ren v. Poolworld Pty Ltd [2011] QCAT 706 at paragraph [8], citing with approval Aon Risk Services Aust Ltd v. Australian National University (2009) 239 CLR 175. -- 4 of 7 -- 5 I have since received a directions letter from QCAT which I did not understand so I attended QCAT in person for someone to explain the contents to me. After speaking to two people I was advised the statement of reasons and submissions would be the original documents/paperwork which I submitted. A couple of days later I decided to call the case manager to confirm the information was correct and was advised as I had not submitted the statement of reasons and submissions as requested the matter was now closed.14 [21] The Tribunal must act fairly15 and according to principles of natural justice16 with as little formality and as much speed as matters permit.17 Incorrect advice from the Registry, if given, is not a denial of procedural fairness.18 [22] This is because Mr Crawford has an obligation to act in his own best interests: The statutory regime under which QCAT operates 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 the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, ‘… the public as a whole, not merely the parties to the proceedings’. Finality in litigation is highly desirable, because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties.19 [23] The onus is always upon Mr Crawford to present his case and comply with Tribunal directions.20 He cannot shift that personal responsibility to the Tribunal Registry.21 [24] Following his absence from the compulsory conference, the Tribunal did not dismiss Mr Crawford’s application. Instead, the Tribunal provided Mr Crawford with two weeks to comply with a single direction that read: Darren (sic) Crawford must file in the Tribunal two (2) copies and deliver to the Commissioner of State Revenue one (1) copy of their response to the statement of reasons and submissions of the Commissioner by 4.00pm on 17 June 2014.22 14 Application for reopening, correction, renewal or amendment filed 23 June 2014 at page 2. 15 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28(2). 16 Ibid s 28(3)(a). 17 ibid s 28(3)(d). 18 Rayner & Anor v. Trabme Pty Ltd t/as Elders Redcliffe [2013] QCATA 12 at [43]. 19 Creek v. Raine & Horne Mossman [2011] QCATA 226 at paragraph [13], citing with approval Aon Risk Services Australia Ltd v. Australian National University (20090 239 CLR 175, 217. 20 Rayner & Anor v. Trabme Pty Ltd t/as Elders Redcliffe [2013] QCATA 12 at paragraph [47]; Harris v. Foxworth Pty Ltd [2013] QCATA 133 at paragraph [18]. Breezeway Developments Pty Ltd v. ADG Hydraulics Pty Ltd [2010] QCATA 69 at [18] 21 W&E Carlsen Builders v. Tressider [2014] QCAT 131 at paragraph [21]. 22 Directions dated 3 October 2013 at paragraph 3. -- 5 of 7 -- 6 [25] It is not clear from Mr Crawford’s application to reopen those parts of this direction he does not understand. The direction does not contain legal jargon and may fairly be described as plain and logical: respond to the Commissioner’s case. If unsure of its meaning, Mr Crawford was given sufficient opportunity to procure legal advice. [26] Mr Crawford’s purported lack of understanding of a document is therefore not a sufficient explanation for his failure to comply with the Tribunal’s direction.23 Diary erasure is not reasonable excuse for non-attendance at compulsory conference [27] Even if Mr Crawford’s non-attendance at the compulsory conference had led to the dismissal of his review application, his excuse for non- attendance must be reasonable to consider reopening the review application. [28] Mr Crawford proffers the following as an excuse for not attending the compulsory conference: Unfortunately due to the change over of my business models my electronic diary was erased and I missed the compulsory conference scheduled for 9.30am on June 3, 2014. I spoke to a person from QCAT on the day and said I was able to attend but was informed the matter was now closed.24 [29] The Tribunal has already determined that missing a date through inadvertence is not a reasonable excuse.25 The rationale is consistent26 and clear: In the context of the legislation and the demands upon public resources like those which fund QCAT it is not unreasonable to impose, upon a party, an expectation and an obligation that it will ensure it acts in its own best interests, or accept the consequences; and that mistakes like those made here, while attracting sympathy, can no longer prevail over statutory and practical constraints on available resources for dispute resolution. When these matters are appreciated, it will be seen that a party’s own fundamental error in misreading a document cannot be categorised as a 23 Harris v. Foxworth Pty Ltd [2013] QCATA 133 at paragraphs [18] to [20]; Breezeway Developments Pty Ltd v. ADG Hydraulics Pty Ltd [2010] QCATA 69 at paragraph [13]. 24 Application for reopening, correction, renewal or amendment filed 23 June 2014 at page 2. 25 Breezeway Developments Pty Ltd v. ADG Hydraulics Pty Ltd [2010] QCATA 069; Tilecorp Pty Ltd v. Pinnacle Seal Pty Ltd [2011] QCAT 52; Laker Paint Company Pty Ltd v. Bray [2013] QCATA 90. See also Crime and Corruption Commission v. Deputy Commissioner Stephan Gollschewski [2014] QCAT 359 at paragraph [35] where the Tribunal reopened the application but specifically declined to decide whether the application would have succeeded on administrative error alone. 26 See for example Creek v. Raine & Horne Mossman [2011] QCATA 226; The Pot Man Pty Ltd v. Reaoch [2011] QCATA 318; Harris v.Foxworth Pty Ltd [2013] QCATA 133; Wimberley v. Misevski [2013] QCATA 223; W&E Carlsen Builders v. Tressider [2014] QCAT 131. -- 6 of 7 -- 7 ‘reasonable excuse’ for the purpose of revisiting proceedings which were otherwise correctly and legitimately brought to an end.27 [30] Mr Crawford considered his dispute sufficiently important to commence proceedings and file a review application. Prudence dictates it is therefore sufficiently important to not rely solely upon an electronic diary to record important dates in those proceedings. [31] Moreover, the Notice of a Compulsory Conference is dated 5 May 2014 – almost four weeks before the conference. There is a paucity of particulars of when his dairy was erased and when and how often he viewed his dairy and his efforts to act in his own best interests. It is therefore impossible to determine whether he took immediate steps to contact the Tribunal, whenever his diary was claimed to have been erased. [32] The catalyst for his contacting the Tribunal “on the day” is also unclear, given his diary is claimed to have been erased. If his diary was erased before the day of the compulsory conference, then he should have contacted the Tribunal earlier than “on the day”. If his diary was not erased until the day of the conference, then he already knew of the conference and should have attended. Preferring other engagements to the convenience of the Tribunal and the Commissioner is not acceptable.28 [33] Mr Crawford’s alleged diary misfortune is therefore not a reasonable excuse to not attend the compulsory conference. Conclusion [34] Mr Crawford has failed to establish any ground to reopen his application for review. What are the appropriate Orders? [35] The appropriate order is that the application to reopen is dismissed. 27 Breezeway Developments Pty Ltd v. ADG Hydraulics Pty Ltd [2010] QCATA 069 at Paragraphs [12] and [13]. 28 Wimberley v. Misevski [2013] QCATA 223 at paragraph [18]. -- 7 of 7 --