B Publishing Pty Ltd v Azure International Discretionary Trust [2011] QCATA 23

CITATION: B Publishing Pty Ltd v Azure International Discretionary Trust [2011] QCATA 23 PARTIES: B Publishing Pty Ltd (Applicant/Appellant) v Azure International Discretionary Trust (Respondent) APPLICATION NUMBER: APL292-10 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member DELIVERED ON: 18 February 2011 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal is refused. CATCHWORDS : Minor Civil Dispute – failure to attend mediation – referral to an adjudicator for determination – whether Tribunal acted outside it’s powers – whether refusal of adjournment of mediation was reasonable – whether bias established – consideration of Tribunal processes. Queensland Civil and Administrative Act 2009, ss 3, 4, 75, 77, 226 Practice Direction 6 of 2010 Builders Registration Board of Qld v Rauver (1983) 57 ALJR 376 Slinko v Guardianship and Administration Tribunal (2006) 2 Qb R 279 Renton v Magistrate Baldwin (2009) QSC 103 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 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 -- 1 of 6 -- 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] Azure International Discretionary Trust (“Azure”) filed an application for a minor civil dispute in the Tribunal on 25 February 2010. The claim relates to the provision of photography work for the respondent over a period of time between 2006 and 2009. The original claim was for $21,313.90 but after a short hearing, the Tribunal ordered that B Publishing Pty Ltd (“B Publishing”) pay to Azure the sum of $18,631.88 which included interest of $782.78 and a filing fee of $250. [2] The application was heard in the absence of B Publishing, it having been referred to an Adjudicator upon the applicant’s failure to attend a mediation scheduled at the Tribunal for 3 June 2010. As a consequence of the decision being made by the Tribunal, the applicant filed an application for leave to appeal or appeal in the Tribunal on 3 November 2010. [3] The grounds of appeal are as follows:- (1) The Tribunal acted irrationally in referring the matter to mediation without ascertaining and taking into account to (sic) views of the parties; (2) It acted outside its powers in ordering judgement for Azure when it had no power to do so; (3) It acted improperly and unfairly in proceeding with mediation and refusing a request for an adjournment of the mediation, knowing that the appellant could not attend or make alternative arrangements; (4) It showed the appearance of bias towards Azure in proceeding with the mediation.” [4] After the application was filed in the minor civil dispute division of the Tribunal on 24 February 2010, B Publishing filed a response to that application on 22 April 2010, well out of time for the filing of the response. As a result of that delay, Azure filed a request for a decision by default on 29 April 2010 but was advised, because the response had been received, that the matter would have to proceed to mediation and/or hearing. 2 -- 2 of 6 -- [5] In the usual way1, the application was listed for a mediation on 3 June 2010 and notices were sent to the parties on 19 May 2010. The Notice of Mediation is in the approved form and states:- “NOTE: (a) Both parties are required to attend the mediation. If you do not attend 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 the further conduct of the matter. You should bring all documents and evidence with you in the event that the other party does not attend the mediation. (b) If both parties attend the mediation session and it is not resolved by mediation, then the hearing of the application will be adjourned to another date. It will not take place on the date set for mediation. (c) If you do not wish to participate in this mediation, please write to QCAT Alternative Dispute Resolution Manager, stating your reasons for not wanting to do so. (d) If you are unable to attend in person and are able to participate by telephone, please advise QCAT as follows.” [6] On 31 May 2010 B Publishing wrote to the Tribunal requesting that the mediation date be changed until after 10 July 2010. The letter goes on to say:- “As director of the business I would like to personally attend the matter and will be overseas from 1st June until 10th July 2010.” The letter was signed by Demetrius Limnatitis, a director of B Publishing. [7] The application to adjourn the mediation was forwarded to a Tribunal Member for consideration. The respondent opposed the application for an adjournment of the mediation. A decision was made to refuse the application and on 1 June 2010 the parties were advised that the mediation would proceed. In fact, the file notes show Cathy (Limnatitis), a representative of B Publishing, was telephoned and told that the mediation would proceed. She was also told that Mr Limnatitis could appear by telephone by calling into the Tribunal from the United States at the appointed time. She was given details for conference calling in an email sent to B Publishing’s email address: “[email protected]”. Mrs Limnatitis told the case officer that Mr Limnatitis wanted to attend the mediation. [8] It is not clear where in the United States Mr Limnatitis was located on 3 June 2010 however, as the mediation was listed for midday it would not have been inconvenient for him to attend by telephone because at 1 Practice Direction 6 of 2010, QCAT Act section 75. 3 -- 3 of 6 -- midday, if Mr Limnatitis was on the east coast of the United States it would have been 10pm, earlier if he was located in the mid west or on the western sea board. He made no attempt to contact the Tribunal on the day of the mediation; this seems to be conceded by the applicant. [9] The proceeding, in accordance with the procedure set out in the Notice of Mediation, was then referred to an Adjudicator who made a decision on the material put before him. The transcript of evidence reveals that he carefully considered each invoice relied upon by Mr Weatherall, appearing for Azure, and made certain adjustments to the amount claimed resulting in a net claim of $17,599.10 and orders were made to that effect. [10] On 13 September 2010 B Publishing filed an application for legal representation which was granted. An application for leave to appeal, together with the submissions, was prepared by B Publishing’s solicitor and filed in the Tribunal on 3 November 2010. [11] The grounds of appeal and submissions filed in support suggest that the respondent has not had regard to the practices of the Tribunal, the objects of the Queensland Civil and Administrative Act 2009 (“the Act”) and the provisions in the Act concerning mediation. The Act provides that the President may make Practice Directions about the practices and procedures of the Tribunal not sufficiently provided for in the QCAT Act. However the Practice Direction must not be inconsistent with the Act2. [12] The purpose of the Practice Direction 6 is to assist the parties and the Tribunal in ensuring the timely and efficient disposal of minor civil disputes filed in the Tribunal. It also ensures that the Tribunal complies with the objects of the QCAT Act to deal with matters “in a way that is accessible, fair, just, economical, informal and quick”3. Further, the referral to mediation before hearing is designed to encourage the early and economical resolution of disputes before the Tribunal, including, if appropriate, through alternate dispute resolution processes. The Practice Direction provides quite specifically:- (2) “Unless otherwise ordered by the Tribunal all minor civil dispute applications except tenancy matters will be referred for mediation by a person nominated by the Director of the Alternate Dispute Resolution Branch of the Department of Justice and Attorney- General. (3) If a party wants an application heard without it first being mediated they may request the Tribunal to make that order. The request may be made in writing directed to the Principal Registrar and must state the reason for the request. 2 QCAT Act section 226. 3 QCAT Act section 3(b). 4 -- 4 of 6 -- (4) The mediation and hearing will not be scheduled to occur on the same day. (5) The mediation may be conducted in person or by telephone.” [13] It is argued on behalf of the applicant that the Tribunal acted irrationally by referring the matter to mediation without ascertaining, or taking into account the views of the parties. It is not for the Tribunal to second guess the parties views about mediation, the Practice Direction specifically provides that if a party wishes object to the mediation an application can be made in writing to the Principal Registrar. [14] The minor civil dispute file reveals that Mrs Limnatitis was acting as representative of the company B Publishing Pty Ltd in its conduct with the Tribunal. The company was aware of the decision that the mediation was to proceed. It was provided with contact details of QCAT. It therefore would have been a very simple matter for Mr Limnatitis to telephone the Tribunal on the day of the mediation. It was his failure to do so, and genuinely participate in the process, that resulted in the application being referred to an Adjudicator for a decision. [15] The applicant contends that it failed to attend the Tribunal for good reason. The submission goes on to state that the “appellant was simply unable to do so by reason of being abroad at the time”. No explanation is provided in the submissions as to why the applicant was not able to communicate with the Tribunal by telephone on the day of the mediation, or by a representative in person such as Mrs Limnatitis. This failure to attend resulted in the reasonable exercise of the powers contained in section 48 of the Act that is, failing to attend a mediation or hearing of the proceeding without reasonable excuse4. Clearly the Tribunal had power to make the order it did in the absence of B Publishing. [16] If the applicant did have a genuine and reasonable excuse for non attendance, then it was open for it to make an application to reopen pursuant to section 138 of the Act. This section makes specific provision for reopening where a party has a reasonable excuse for not attending. As, it seems, the applicant has no reasonable excuse, it has sought to proceed by way of appeal rather than an application to reopen. [17] The applicant also contends that the Tribunal was biased towards one party or the other; no particulars of bias are provided nor demonstrated from the material. The test for bias in statutory tribunals is whether a reasonable and informal bystander would suspect that the Tribunal was biased5. For obvious reasons the subjective impressions of a party are not sufficient proof of bias6. 4 QCAT Act section 48(1)(g). 5 Builders Registration Board of Qld v Rauver (1983) 57 ALJR 376, 384. 6 Slinko v Guardianship and Administration Tribunal (2006) 2 Qb R 279; Renton v Magistrate Baldwin (2009) QSC 103, (21). 5 -- 5 of 6 -- [18] Here there are no particulars of bias alleged against the Adjudicator who made the final determination. The allegation of bias seems to be directed against the processes of the Tribunal. That is not sufficient basis to found error and set aside the decision. [19] The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?7 Is there a reasonable prospect that the applicant will obtain substantive relief?8 Is leave necessary to correct a substantial injustice to the applicant caused by some error?9 Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?10 [20] Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and reasonable prospect of the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error? [21] The complaint here generally is concerning the processes of the Tribunal as opposed to any error on the part of the learned Adjudicator. No error on his part has been demonstrated. [22] Has there been a substantial injustice warranting the grant of leave? Again the answer must be in the negative. The processes put in place are for the overall benefit of those who access the Tribunal for a resolution of their dispute. It is the party’s responsibility to ensure the processes are followed. Here the applicant chose not to follow those processes in circumstances where the consequences were made clear to it in the Notice of Mediation. Further the applicant has not provided any reasonable excuse for non attendance, not that that alone would justify granting leave to appeal. [23] There has been a determination on the merits, albeit in the absence of B Publishing and in the circumstances leave to appeal is refused. 7 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 8 Cachia v Grech [2009] NSWCA 232 at [13]. 9 QUYD Pty Ltd v Marvass Pty Ltd (supra). 10 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. 6 -- 6 of 6 --