Danes and Anor v Sulman [2012] QCATA 81

CITATION: Danes and Anor v Sulman [2012] QCATA 81 PARTIES: Colleen Danes Australian Sportsline Pty Ltd (Applicants/Appellants) v Michael James Sulman (Respondent) APPLICATION NUMBER: APL411-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Dr J R Forbes, Member DELIVERED ON: 18 May 2012 DELIVERED AT: Brisbane ORDERS MADE: 1 Extension of time to appeal refused. 2 Leave to appeal refused. 3 There is no order as to costs. CATCHWORDS: Minor civil dispute – solicitor’s costs – decision in default of appearance at hearing – application for extension of time to appeal – lengthy delay – application for leave to appeal – applications refused Queensland Civil and Administrative Tribunal Act 2009, ss 3, 4, 50, 51, 61, 93, 122, 123, 142(3)(a)(i), Schedule 3 Legal Profession Act 2007, s 322 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 (QCAT Act). REASONS FOR DECISION [1] The family of Colleen Danes has been associated with Rugby League football for many years. She developed a talent for devising internet websites, operating a business known as Australian Sportsline Pty Ltd, of which she is sole director. In more successful times her clientele included the South Sydney Leagues Club and the NSW Rugby League Club. -- 1 of 8 -- 2 [2] In early 2009 Danes suspected that rival businesses, Sporting Pulse (ANZ) Pty Ltd and ARLD Pty Ltd were infringing copyright in her (or her company’s) websites. So she consulted the Respondent Michael Sulman, who advertises his firm as intellectual property lawyers, patent and trade mark attorneys. [3] In February 2010 Sulman commenced proceedings for Australian Sportsline against Sporting Pulse in the Federal Court of Australia. However, some five months later, those proceedings were abandoned for lack of funds. Sulman delivered his final account, addressed to “Colleen and Michael Danes”, on 28 July 2010, claiming a balance of $12,008.34. The claim is based on a costs agreement of the kind now recognised by law.1 As appears below, the main issue in this case is whether Colleen Danes is bound by the form of agreement, several copies of which are in evidence. [4] Sulman’s final account remains unpaid. On 20 October 2010 he moved to recover it in this Tribunal, naming Danes as sole Respondent. [5] It appears to be settled that a solicitor’s unpaid and overdue costs are a debt or liquidated demand, within the meaning of the first limb of the definition of “Minor civil dispute”.2 [6] The form of agreement in evidence is expressed to be between Sulman and Colleen Danes, Michael Danes, and Australian Sportsline Pty Ltd. (However, it is now common ground that Matthew Danes is not a party.) The document appears to be signed “for and on behalf of the client” by C Danes, on 5 April 2009. [7] Danes denies liability. She agrees that she received the draft agreement in April 2009, but says that she returned it unsigned, with a request that her husband’s name be deleted, as in fact it was. Sulman swears that, when returned, the document was already signed by Mrs Danes.3 Danes admits that she signed and returned a copy of the final page in August 2010, but insists that this was not acceptance, but was merely to assist Sulman to satisfy auditors from the Law Society.4 It is her case that Australian Sportsline Pty Ltd is the only proper respondent.5 Performance of the services detailed in the subject bill, and the amounts charged are not in dispute. [8] The Response, belatedly filed on 8 December 2010, was followed by Sulman’s Reply on 31 January 2011. 1 Legal Profession Act 2007, s 322. 2 Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), Schedule 3; Morales v Murray Lyons Solicitors (a firm) [2010] QCATA 87 at [29]; Davy v Ryter Planning Pty Ltd [2010] QCATA 96 at [9]; Wiley v Ross Lawyers [2012] QCATA 22. 3 Affidavit of Matthew James Sulman sworn and filed 13 January 2011, paragraph 29. 4 Response by Danes filed 8 December 2010 paragraphs 2.2-2.4; email Sulman to Danes 12 August 2010. 5 Further submissions of the Appellant filed 19 December 2011 paragraph 60. -- 2 of 8 -- 3 Variations on the Title of the Proceedings [9] In Part A of the Application only the name “Colleen Danes” appears in the box labelled “Respondent’s name”. Then – still in the Part entitled “Respondent’s Details” – in boxes enigmatically labelled “Company/Partnership/other” and “Business Name”, the name “Australian Sportsline Pty Ltd” is inserted. I suspect that this arrangement of Part A has something to do with inconsistent naming of parties, and confusion of corporate entities with natural persons, in several cases I have lately seen. Perhaps Form 3 could be revised to make it clearer, particularly to litigants in person, that all intended respondents must be named in the box labelled “Respondent/s” and that the following two boxes (if retained in Part A) do not have the effect of joining additional or alternative respondents. A stricter regime of identifying parties clearly and consistently, at all stages of a proceeding, may serve to avoid the embarrassment of a misnomer at some critical stage. [10] These observations, I suggest, are pertinent to this case. Colleen Danes appears as the sole Respondent in Sulman’s Application and in Danes’ Response, while the title of Sulman’s Reply names two Respondents – the company and Colleen Danes. In the Notice of Mediation the same two Respondents appear, but in the Notice of Hearing and transcript of hearing the sole Respondent is Australian Sportsline Pty Ltd. However, Colleen Danes returns to the record as second Respondent in the default judgment entered on 29 March 2011. Danes appears as sole Appellant in the application for leave to appeal on 10 November 2011, and in the application for extension of time dated 25 November 2011. Despite these permutations and combinations Colleen Danes is on the record as Sulman’s judgment debtor to the tune of $12,699.00. Is an Appeal the Proper Procedure? [11] In several challenges to default judgments the Tribunal has pointed out that the correct procedure is not an appeal, but rather, an application to set the decision aside.6 But those cases were concerned with judgments in default of pleading, while this case concerns default of appearance at trial.7 In the former case, a specific remedy is provided,8 but in the latter the Act is less specific. As a lawful decision after non-appearance at the hearing is a decision on the merits, I consider an appeal to be the appropriate procedure.9 If I am wrong, I grant the Appellant any necessary relief from procedural requirements.10 Preliminary Questions 6 See e.g. Ziegeler t/a Ziegco Pty Ltd v Recochem Incorporated [2010] QCATA 78; O'Loughlin v Vintage Aeroplane Services [2010] QCATA 103; Kilpatrick v Tighnabruaich Properties Pty Ltd [2011] QCATA 208 at [7]. 7 See QCAT Act, s 93 (Deciding in absence of person). 8 QCAT Act, s 51 (application to set aside). 9 Carrie v State of Queensland through the Department of Communities (Housing and Homelessness Services) [2010] QCATA 22; Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 6. 10 QCAT Act, s 61(1)(c). -- 3 of 8 -- 4 [12] Before the substance of her appeal is considered, Mrs Danes faces two threshold issues: should time be extended to allow her application for leave to be heard? If so, should leave be granted? Extension of Time [13] Section 61 of the QCAT Act materially provides that the Tribunal may extend a time limit fixed by “this Act” or the rules, but may not do so if an extension would cause detriment to another party that is unable to be remedied by an order for costs or damages. [14] Normally an application for leave to appeal should be filed within 28 days of service of the decision challenged.11 Here the default judgment was entered on 29 March 2011. According to registry endorsements, notice of that step was given to Danes, in the ordinary course of post, on or about 4 April 2011. The Adjudicator gave an oral decision with reasons; it was electronically recorded. Danes’ email to the Tribunal on 18 April 2011 shows that she was aware of the decision by that time. She did not ask the Tribunal for written reasons, as she was entitled to do.12 I consider that the time for appeal should be deemed to commence on 18 April 2011, or at best (from the Appellant’s viewpoint) 14 days thereafter. The Appellant accepts that an extension of time is required, and in my view that is the correct approach. Otherwise a party subject to a default decision could extend the time for appeal indefinitely, simply by ensuring that he or she does not receive reasons for it. [15] The application for leave to appeal was filed on 10 November 2011, that is, some 6 months late. Such a delay distinguishes this case from others where extensions of a few days or weeks have been granted.13 Certainly a review of decisions on section 61 does not encourage a view that the Tribunal’s ideals of fairness, informality and expedition require lengthy extensions of time to be granted as a matter of course.14 [16] When an extension of time is sought these considerations, taken singly or in combination, are relevant: (a) Whether a satisfactory explanation for the delay is given; (b) The strength of the case the Applicant wishes to make; (c) The likelihood of prejudice to adverse parties; 11 QCAT Act, ss 143(3) and (5). 12 Such a request is to be made within 14 days (s 122) and a copy of an audio recording is sufficient (s 123). This was a consideration in Futur3 Studios Pty Ltd v A Sweet Memory Photography [2011] QCATA 312. 13 See e.g Litzow v Racing Queensland Pty Ltd [2010] QCAT 414 (8 days); Crime and Misconduct Commission v Chapman [2011] QCAT 229 (one day); Chief Executive, Department of Employment, Economic Development and Innovation v Fuchs [2011] QCAT 29 (one day); Surace v Commisso Enterprises Pty Ltd [2011] QCATA 271 (one week); The Body Corporate for No 9 Port Douglas Road v McEvoy [2011] QCATA 292 (1 month). Contrast ML & VF v Department of Communities (Child Safety Services) [2010] QCAT 229 (3 months late – refused); Benson v Ware [2012] QCATA 24 (refused). 14 QCAT Act, ss 3 and 4. -- 4 of 8 -- 5 (d) The length of the delay, considering that a short delay is usually easier to excuse than a lengthy one; (e) Overall, whether it is in the interests of justice to grant the extension.15 [17] When an application for extension of time relates to an application for leave to appeal, the pros and cons of each are intertwined, as those guidelines suggest.16 I propose to examine the merits of the proposed appeal before deciding the request for extension. The Application for Leave to Appeal [18] In a case of this kind there is no appeal as of right; leave to appeal must first be obtained.17 It is necessary to demonstrate an appellable error, or one that results in substantial injustice,18 or that the case raises a question of general importance, warranting consideration by higher authority.19 A subjective sense of injustice or disappointment is insufficient. Findings of fact that have rational, albeit debateable support in evidence will seldom be disturbed.20 Leave is not to be given where a party simply desires to re- argue the case, on existing or additional evidence. One clear purpose of a “leave” requirement is to preclude attempts to conduct retrials on the merits.21 No contract? [19] Danes returns repeatedly, not to say obsessively, to the claim that there is no relevant contract between herself and Sulman. She says that she signed no costs agreement until August 2010, and that when she then did so, her signature was not an acceptance, but merely a favour to help Sulman avoid possible difficulties with Law Society auditors. Sulman, for his part, claims that he had an agreement with Danes at all material times. The Adjudicator accepted an unsworn statement to that effect, and the statement was earlier confirmed on oath.22 It is not the function of an appeal tribunal to re-determine the relevant issues of fact and credit. [20] But in any event, a timely signature was not the only possible mode of acceptance. The document states that that the offer therein may be accepted by “giving us instructions after receiving this document”.23 That 15 Crime and Misconduct Commission v Chapman [2011] QCAT 229 at [9]; Hunter Valley Developments Pty Ltd v The Honourable Barry Cohen, Minister for Home Affairs (1984) 3 FCR 344. 16 As recognised in ML & VF v Department of Communities (Child Safety Services) [2010] QCAT 229; Benson v Ware [2012] QCATA 24 at [3]; Molier v Body Corporate for Q1 CTS 34498 [2012] QCATA 8; Gibson v Bordeaux Red Pty Ltd (trading as Elders Coomera) [2010] QCATA 72. 17 QCAT Act, s 142(3)(a)(i). 18 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; Drew v. Bundaberg Regional Council [2011] QCA 359 at [19]. 19 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580. 20 Fox v Percy (2003) 214 CLR 118 at 125-126. 21 Contrast QCAT Act, s 20 (review jurisdiction). 22 Affidavit of Matthew James Sulman sworn and filed 13 January 2011, paragraph 29. 23 Costs agreement clause 2.1(b). -- 5 of 8 -- 6 procedure is permitted by the Legal Profession Act 2007, which provides that a costs agreement may be accepted in writing or by other conduct.24 [21] Danes admittedly received the draft agreement in April 2009, and subsequently, without any clear indication by her that she was merely an agent for Australian Sportsline Pty Ltd, she instructed Sulman to advise her and to institute Federal Court proceedings. That is sufficient to dispose of her “past consideration” argument.25 It is highly improbable that an experienced practitioner would incur substantial costs and outlays without recourse against the person behind the private company in whose name litigation was to be instituted26, and in fact the costs agreement is addressed to Danes in her own right, as well as to the company. That being so, no need for a “personal guarantee” arose.27 The contention that Danes herself did not accept responsibility for costs is untenable. [22] Equally insubstantial are the Appellant’s submissions that “no case [is] pleaded against me in the QCAT claim” and that “until I received the QCAT decision in this matter ... I was not aware that I was a party to these proceedings”.28 As noted above, she is the sole respondent named in the originating process. Notice of Hearing [23] The Appellant relies on the fact, already noted, that the notice of hearing did not include her name as a party to the proceedings. However, the original application plainly named her, and her alone, as the person against whom relief was sought. The same comment applies to her Response, filed on 8 December 2010. Further, she is recognised as a party in the Notice of Mediation, issued about seven weeks before the date of hearing. [24] The Appellant admits that she was present in person at the Tribunal at 2 pm on 29 March 2011, at the time fixed for hearing. She could then have appeared before the Adjudicator to submit that she was not properly a party to the proceedings. As it happened, the Adjudicator was part heard in another matter, and this case was not reached at 2 pm. At about 4 pm the Appellant left to board a flight to Fiji, apparently assuming that the hearing would be adjourned without any application for or on her behalf. [25] The Notice of Hearing was issued on 17 February 2011. It set a hearing date almost six weeks ahead. In mid-February, or at some time between that time and hearing date, the Appellant must have become aware that she was due to go overseas on 29 March 2011. She knew or should have known of the risk that a hearing set to commence at 2 pm that day might 24 LPA, s 322(3), emphasis added. 25 As put in paragraphs 41-44 of the Appellant’s further submissions filed 19 December 2011. 26 Sulman swears that from the outset he believed that Danes’s asset position was superior to the company’s: Affidavit of Matthew James Sulman sworn and filed 13 January 2011, paragraph 34. 27 Contrary to the submission in paragraph 43 of the affidavit of C A Danes sworn 16 December 2011 and paragraph 10 of the Appellant’s further submissions filed 19 December 2011. 28 Affidavit of C A Danes sworn 16 December 2011, paragraphs 45 and 35 respectively. -- 6 of 8 -- 7 well interfere with her plans for departure, even if it began at precisely that hour. The Appellant had access to legal advice, and her own documents clearly indicate that she is not an unsophisticated litigant. It was open to her to make an immediate, and if necessary, an urgent formal application for adjournment. She did not do so. It is incumbent upon parties, in their own interests, to take care in their dealings with the Tribunal, not taking special concessions for granted.29 [26] In the circumstances the Adjudicator exercised a lawful discretion to proceed in her absence.30 His decision to do so was authorised by statute, and was not, as she alleges, a denial of natural justice. He was satisfied that the prerequisites listed in Murray Lyons Solicitors (a firm)31 had been fulfilled, and there was documentary evidence to justify that finding. I discern no error of law in his decision. Conclusions [27] It follows, in my view, that the requirements for granting leave to appeal have not been satisfied. Furthermore, the prospects of a successful appeal and the explanation of no-appearance at the hearing are insufficiently strong to warrant so lengthy an extension of time as six months. [28] It will be recalled that two of the criteria for an extension of time are (i) the strength of the case the Applicant wishes to make; and (ii) the likelihood of prejudice to adverse parties.32 The caveat as to prejudice is reinforced by the Act,33 where the Tribunal is told that it “can not extend” time if to do so would cause prejudice or detriment, not able to be remedied by an appropriate order for costs or damages, to a party. It is obvious that Mr Sulman has already spent considerable time and expense in efforts to enforce his judgment. He registered it in the Magistrates Court and sought execution without avail, and he has also instituted bankruptcy proceedings. If an extension is granted, the costs of these actions may be thrown away. And if leave to appeal were granted, he will be subjected to further delays, and possibly to the expense of amending or augmenting his existing submissions. A warrant of execution has already proved fruitless, indicating that prejudice caused by an extension is unlikely to be remedied by an order for costs. [29] The applications for extension of time and for leave to appeal are refused. ORDERS [1] The application for extension of time to apply for leave to appeal is refused. [2] The application for leave to appeal is refused. 29 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 217; Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69; Discount 4 x 4 Pty Ltd v Purua [2012] QCATA 46. 30 QCAT Act, s 93. 31 [2010] QCATA 87. See also Wiley v Ross Lawyers [2012] QCATA 22 at [5]. 32 See note 14, above. 33 QCAT Act, s 61(3). -- 7 of 8 -- 8 [3] There is no order as to costs. -- 8 of 8 --