ECQAS Pty Ltd and Ors v ARGO International Pty Ltd [2014] QCATA 273

CITATION: ECQAS Pty Ltd and Ors v ARGO International Pty Ltd [2014] QCATA 273 PARTIES: ECQAS Pty Ltd Graham Douglas Favell Scott Martell Robinson (Appellants) v ARGO International Pty Ltd (Respondent) APPLICATION NUMBER: APL352-14 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Acting Senior Member Paratz DELIVERED ON: 22 September 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Proceeding MCD 57/14 is to be reopened. 2. Proceeding MCD 57/14 is returned to the same Tribunal at Southport to be heard and decided again. 3. The application for a stay is dismissed. 4. The Application for extension of time filed in MCD 57/14 on 15 August 2014 is dismissed. 5. The Order made on 24 February 2014 in MCD 57/14 is suspended until further order of the Tribunal. CATCHWORDS: APPEAL – REOPENING –MINOR CIVIL DISPUTE – Where a proceeding was heard in the absence of the respondents – where the respondents had been given leave to appear on the hearing by telephone, but were not telephoned by the Tribunal – where a rehearing ground was established -- 1 of 6 -- 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 4(b), 59(2), 139(2), 140(2) ARGO International Pty Ltd v ECQAS Pty Ltd & Ors [2014] QCAT 184 Commissioner of Taxation (Cth) v The Myer Emporium Ltd (No 1) (1986) 160 CLR JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 2) [1983] 2 Qd R 255. Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 Wylie v Neal [2013] QCAT 166 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] ARGO International Pty Ltd (ARGO) lent money to Mr Favell and Mr Robinson for a business investment. The monies were deposited into an account of ECQAS Pty Ltd (ECQAS). [2] ARGO filed an “Application for minor civil dispute – minor debt” in the Tribunal at Coolangatta on 28 October 2013. The application was heard by an Adjudicator at Southport on 24 February 2014. The decision was delivered on 9 May 2014 and Mr Favell, Mr Robinson and ECQAS were ordered to pay $2,932.20 to ARGO within seven days. [3] Mr Favell, Mr Robinson and ECQAS filed an “Application for leave to appeal or appeal”, and an “Application to stay a decision” on 19 August 2014. They state that they received the decision on 19 July 2014. [4] The grounds of appeal in summary were that : (a) ARGO is deregistered. (b) Mr Robinson attended the Tribunal on 15 January 2014 and was advised by the Member that he and Mr Favell would be able to attend the hearing by phone, and were advised that they would be called on the phone numbers that were held on file. (c) They received a decision notice advising them that they were given leave to attend the hearing by phone. (d) No phone call was received. (e) They fumbled their way through as they were advised they were not allowed to have a lawyer act for them. -- 2 of 6 -- 3 [5] The grounds for the stay were that they were unable to present a defence, and they raise the same points as on the appeal. [6] Directions were made on 29 August 2014 that the application for leave to appeal and the appeal would be determined by the Appeals Tribunal as an application to reopen the Minor Civil Dispute Claim number 59/14; for the filing of submissions on the stay application; and for a decision on the papers on the stay application not before 9 September 2014. This is the decision on the papers on the reopening and the stay application. [7] In her decision, the learned Adjudicator noted that there was no appearance by Mr Favell, Mr Robinson and ECQAS. She noted that on 15 January 2014 they had requested an adjournment, and that the claims were transferred from Coolangatta to Southport. [8] It appears that there has been an unfortunate breakdown in communication between the Coolangatta and Southport registries of the Tribunal, in the issuing of written Orders after the hearing on 15 January 2014, and in proper notation on the file. [9] A copy of the Minor Civil Disputes file has been forwarded from the Southport registry. It contains a copy of the Adjudicator’s hand-written notes made on the mention on 15 January 2014 at Coolangatta (where it was known as Coolangatta Claim 125/13). It is noted that Appearances were made by Peter Rohan for ARGO, and by Scott Robinson for the other parties. The notes set out two Orders that were made:- 1. The Application is transferred to Southport for hearing urgently. 2. Graham Douglas Favell and Scott Martell Robinson are given leave to attend the hearing at their option, by phone. [10] The notes of the Learned Adjudicator made on 15 January 2014 support the contentions of Mr Favell, Mr Robinson and ECQAS that they were given leave to appear on the hearing by telephone. The expression “at their option” does not diminish the leave given. When they did not appear in person on the hearing, there was an obligation on the Tribunal to attempt to contact them by telephone, as the implication would be that they were exercising their option not to attend in person, and were therefore attending by telephone. [11] When the Tribunal file was forwarded from the Coolangatta Registry to the Southport Registry, the accompanying letter dated 16 January 2014 did not make any reference to the Order made by the Adjudicator on 15 January 2014 as to telephone attendance on the hearing. [12] The standard practice of the tribunal is that a written Decision Notice is then prepared and sent to the parties after a hearing. I cannot see any written Decision Notice on the Tribunal file. The registry for the Tribunal in this instance was the Magistrates Court Registry Coolangatta. There is reference in the Grounds of Appeal to a Decision Notice being received and being attached, but it is not in fact attached. -- 3 of 6 -- 4 [13] The learned Adjudicator proceeded to hear the matter on 24 February 2014 at Southport, apparently unaware that an order had been made allowing Mr Favell, Mr Robinson and ECQAS to attend the hearing by telephone. [14] It is also unfortunate that Mr Rohan, who was in attendance on both 15 January 2014 and on 24 February 2014, and who would have heard the Adjudicator make the orders on 15 January 2014, does not appear to have specifically brought to the learned Adjudicator’s attention that leave had been given for Mr Favell, Mr Robinson and ECQAS to attend by telephone, and that this would explain their failure to appear. Reopening [15] The Application for leave to appeal is being treated by this Appeal Tribunal as a reopening application. A ”reopening ground” is defined in Schedule 3 of the QCAT Act as:- (a) the party did not appear at the hearing of the proceeding and had a reasonable excuse for not attending the hearing [16] The QCAT Act requires that each party to the proceeding must be given an opportunity to make submissions about the reopening application1. Directions were given on 29 August 2014 as to filing submissions on the stay application. All parties have made submissions as to the reopening in their submissions on the stay application. I am satisfied that all parties have made submissions on the reopening, and it is appropriate and in the interests of an early and economical resolution of the dispute2, for me to also determine the reopening application in this decision. [17] ARGO submitted that3 on the 24 February 2014:- Also the Court had tried to contact the Respondents that morning, by phone, without success. [18] Mr Favell, Mr Robinson and ECQAS allege in their grounds of appeal that they were waiting for a telephone call on the day of the hearing on 24 February 2014, and that their mobile phones were charged and kept free for the entire day, and that no phone call was received. [19] In their submissions4 they submit that:- Further, we were told we could attend by phone, and, as we have already advised the tribunal in writing, we were not contacted by the Courts. 1 QCAT Act s 139(2). 2 Ibid s 4(b). 3 Submissions RP Rohan filed 9 September 2014 p 3. 4 Submissions Graham Favell and Scott Robinson filed 10 September 2014 p 1. -- 4 of 6 -- 5 [20] The learned Adjudicator did canvass the issue of proceeding on the hearing in the absence of Mr Favell, Mr Robinson and ECQAS5:- [24] The trail of dealings on the court file seem to suggest that Mr Robinson and Mr Favell have done everything they could to delay this matter being heard, from requesting a transfer from one registry to another, for requesting an adjournment without any evidence to support their request, (although granted) and filed a response seeking the claim be dismissed and then failed to appear at the hearing. [25] I am satisfied that both Mr Favell and Mr Robinson were sent notices of hearing to attend the tribunal hearing as the address is the same one where they were served and consequently filed a response and corresponded with the registry regarding other interlocutory matters. That being said, I find that I am satisfied of service and I find that it is fair and equitable that the matter be heard and determined on an ex parte basis. [21] The learned Adjudicator makes no reference in her Reasons to the court having attempted to contact Mr Favell, Mr Robinson and ECQAS on the morning of the hearing by telephone without success. It is possible that this occurred without her knowledge. [22] However, as the learned adjudicator does not make any reference to Mr Favell, Mr Robinson and ECQAS being telephoned, and as there is no such record on the court file before me, and as they deny it, then there is only Mr Rohan’s assertion that this was done, before me. I cannot be satisfied that on the material before me that Mr Favell, Mr Robinson and ECQAS were in fact telephoned as directed. [23] Mr Favell, Mr Robinson and ECQAS clearly had a reasonable excuse for not attending the hearing, as they were under the belief that they would be telephoned as directed by the Tribunal on 15 January 2014. [24] The re-opening ground is therefore made out. It is an obvious breach of natural justice for the hearing to have proceeded without Mr Favell, Mr Robinson and ECQAS having an opportunity to appear and be heard. The application for reopening must therefore succeed. [25] If the Tribunal decides that a proceeding should be reopened, as I do, then the matter is returned to the Tribunal for a fresh hearing on the merits6. The Stay Application [26] This Tribunal has power to make an order staying the operation of a decision being appealed against, until that appeal is finally decided: Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 145(2). The normal rule is that a litigant is entitled to the ‘fruits’ of the litigation, a 5 ARGO International Pty Ltd v ECQAS Pty Ltd & Ors [2014] QCAT 184 at [24] and [25]. 6 QCAT Act s 140(2). -- 5 of 6 -- 6 phrase which typically includes a judgment.7 While it has been suggested that an applicant for a stay must establish ‘special circumstances’8 before an order will be made, it has also been said that the discretion is unfettered and that the applicant must demonstrate a basis for a stay, with particular emphasis upon such matters as the balance of convenience, and the competing rights of the parties.9 [27] In this instance the appeal is not being decided, so the stay provisions as to appeals do not apply. Similar principles will apply however, whilst the proceeding is being reopened. I consider that it is not appropriate that a decision made without hearing from the respondents should be enforced against them, as a matter of fairness, and that this constitutes “special circumstances”. [28] The Tribunal may make an interim order on its own initiative10, and an interim order should be made suspending enforcement of the decision made on 24 February 2014 until further or other order of the Tribunal11. [29] The stay application is dismissed, but an interim order to similar effect should be made. [30] An application was filed by Mr Favell, Mr Robinson and ECQAS on 15 August 2014 in MCD 57/14 seeking an extension of time to all time periods in the Order and any subsequent action. The application is misconceived, but unnecessary in any event in light of my other orders, and should be dismissed. Orders [31] I order that the Minor Civil Disputes proceeding be reopened; I return it to the same Tribunal for hearing again: I dismiss the stay application: and I make an interim order suspending the Order made on 24 February 2014. 7 Commissioner of Taxation (Cth) v The Myer Emporium Ltd (No 1) (1986) 160 CLR 220 at 222-3 per Dawson J. 8 JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 2) [1983] 2 Qd R 255 at 258. 9 Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694-5. 10 QCAT Act s 59(2). 11 Refer Wylie v Neal [2013] QCAT 166. -- 6 of 6 --