Breffny Investments Pty Ltd v Clean Space Australia Pty Ltd [2011] QCATA 63

CITATION: Breffny Investments Pty Ltd v Clean Space Australia Pty Ltd [2011] QCATA 63 PARTIES: Breffny Investments Pty Ltd (Applicant/Appellant) v Clean Space Australia Pty Ltd (Respondent) APPLICATION NUMBER: APL016-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member DELIVERED ON: 4 April 2011 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal is refused. CATCHWORDS: Minor Civil Dispute – failure to attend mediation – where application proceeded to final determination – where applicant did not apply for reopening – failure to explain not attendance – whether denial of natural justice Queensland Civil and Administrative Tribunal Act 2009, ss 137,138 and 142(3) QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Cachia v Grech [2009] NSWCA 232 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Breezeway Developments v ADG Hydraulics Pty Ltd [2010] QCATA 69 Aon Risk Services Australia Limited v Australian National University [2009] 239 CLR 175 -- 1 of 5 -- 2 APPEARANCES and REPRESENTATION (if any): This matter was heard on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] On 23 September 2010 Clean Space Australia Pty Ltd commenced proceedings in the Tribunal against Breffny Investments Pty Ltd to recover a debt for the supply of cleaning services in the sum of $5,966.92. [2] Breffny responded to that claim and asked the Tribunal to order that Breffny pay to Clean Space $3,314.39 in full satisfaction of the claim. [3] Prior to the commencement of proceedings there had been some negotiation between the parties concerning the outstanding amount which, at that time was $5,340.84. Breffny said this in an open email to Clean Space on 26 May 2010: “I would be looking at $1,000 EX GST reduction adjustment on the commercial clean. If this adjustment is agreed to, we will make payment promptly on receipt of revised invoice.” [4] That may have been a commercial decision to try and resolve the impasse but what it does establish is that at all material times, Breffny acknowledged that they were indebted to Clean Space for an amount of money between $3,300 and $4,300. In the usual way1, the application was listed for mediation on 8 December 2010 at 10am. The notice of mediation provides: “Both parties are required to attend the mediation. If you do not attend at the mediation then the application may proceed immediately to a hearing, where the application may be determined on the evidence provided or directions made about and evidence with you in the event that the other party does not attend the mediation.” [5] Breffny engaged solicitors to act on its behalf and on 18 November 2010 the solicitors filed an application for leave to represent their client in the proceeding. That application was refused. [6] Then, on 6 December 2010, the solicitors faxed a letter to the Tribunal requesting an adjournment of the mediation. In that letter they said: “We are instructed that our client is not able to attend the mediation as listed. In the circumstances, we respectfully request 1 Practice direction 6 of 2010. -- 2 of 5 -- 3 the mediation be adjourned until a date after Monday, 17 January 2011.” [7] There was a follow up email subsequent to that letter on 7 December 2010 in which they again sought an adjournment and simply said: “We confirm our instructions that our client is not able to attend tomorrow’s mediation.” [8] On 7 December 2010 a decision was made to refuse the application for an adjournment of the mediation and the applicant’s solicitors were advised of that on the afternoon of 7 December 2010. [9] At the appointed time of the mediation, the record reveals, and the learned Member observed, the mediator contacted Breffny, spoke to the personal assistant of Mr O’Rourke who advised that they were aware that the mediation had been listed for that day. A message was left on Mr O’Rourke’s mobile phone asking for reasons for his non-availability and there was no response. The solicitors for Breffny were also called but the particular lawyer was not available. It was only then that, in accordance with the Practice Direction the matter was referred to the member for consideration. [10] The observations made above were considered by the Tribunal Member in coming to the conclusion that an order ought be made in favour of Clean Space. [11] From that order, Breffny has filed an application for leave to appeal or appeal. As this is an appeal from a minor civil dispute leave is necessary2. In support of the application for leave to appeal Breffny’s solicitors filed written submissions. They have properly identified that leave to appeal will only be granted in circumstances where there is a reasonably arguable case of error in the primary decision; there is a prospect that the applicant will obtain substantive relief; to correct a substantial injustice caused by some error and there is a question of general importance upon which further argument and decision would be to the public advantage.3 [12] Therefore, the onus is on Breffny to identify error on the part of the Tribunal Member in adopting the course that he did. [13] As the President observed in Breezeway Developments Pty Ltd v ADG Hydraulics4 the options open to a party who does not appear at a hearing 2 QCAT Act, s 142(3). 3 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 3 Cachia v Grech [2009] NSWCA 232 at [13]. 3 QUYD Pty Ltd v Marvass Pty Ltd (supra). 3 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. 4 [2010] QCATA 69. -- 3 of 5 -- 4 but has a reasonable excuse for not attending can apply to the Tribunal for the proceeding to be reopened5. Rather than adopt this procedure, Breffny has chosen to appeal. If it did have a reasonable excuse for not attending the hearing, then presumably favourable consideration would be given to the application. [14] One of the fundamental difficulties with Breffny’s application for leave to appeal, and might I say on an application to reopen is that, as a matter of fact, no reason has been given for Breffny’s failure to attend the mediation on 8 December. In all the correspondence referred to above, and even in the submissions in support of this appeal, no reason is given for non-attendance. Breffny’s position has been and it seems, remains, that it simply could not attend the mediation as listed. As a matter of courtesy and practice, particulars for the reasons for non-attendance would have assisted the decision-maker, at first instance being the Registrar’s delegate, and secondly the Tribunal Member as to whether there was a reasonable ground for non-attendance. [15] Be that as it may, the applicant has still failed to identify any error on the part of the learned Member. Following the Practice Direction, and being satisfied that the applicant had been given every opportunity to attend the mediation either through Mr O’Rourke or some other representative, or even the solicitor on the day, he was entitled to proceed to make the order he did. [16] The applicant’s submissions contend that there is no power to make a final order upon failure to attend a mediation as there is on a failure to attend a compulsory conference.6 What the submissions failed to address, is the powers in section 48 of the QCAT Act which permits a Tribunal Member to make a final decision7 upon a party failing to attend a mediation or hearing without reasonable excuse.8 [17] Again, as the President observed in Breezeway 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 the resolution of disputes serve, as the High Court has recently observed ‘…the public as a whole, not merely the parties to the proceedings’9. “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 5 QCAT Act, ss 137, 138. 6 Section 72(1)(b)(1). 7 QCAT Act, s 48(2)(b). 8 QCAT Act, s 48(1)(g). 9 Aon Risk Services Australia Limited v Australian National University [2009] 239 CLR 175 at 217. -- 4 of 5 -- 5 attracting sympathy, can no longer prevail over statutory and practical constraints on available resources for dispute resolution.”10 [18] As to the substantive relief, as I’ve indicated at the very commencement of this decision, Breffny concedes that it is indebted to Clean Space for an amount between $3,300 and $4,300. How then can it be said that a substantial injustice has been caused by some Tribunal error in circumstances where Breffny chose not to provide any particulars of its reasons for wanting an adjournment, and not availing itself an opportunity to attend, even by telephone, on a day of the mediation when requested by the mediator. [19] Finally, there is no question of general importance that requires further argument. This is a matter for procedure and the Tribunal processes were complied with in making the final order. [20] No error on the part of the learned Member has been made out and in the circumstances the applicant has not been denied natural justice. Leave to appeal is refused. 10 Breezeway Developments v ADG Hydraulics Pty Ltd supra para 12. -- 5 of 5 --