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- Unreported Judgment
Krummel v Woods QCAT 115
Krummel & Anor v Woods  QCAT 115
Brendan Armstrong Woods t/as Woods Designer Homes
5 April 2017
7 April 2017
The Tribunal directs that:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – where application for a domestic building dispute - where respondent failed to attend compulsory conference – whether the tribunal should make an order striking out the respondent’s counter-application - whether the tribunal should make an order finalising the application for a domestic building dispute by making an order in favour of the applicant
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28, s 48, s 50, s 72
Moreton Island Development Group v Smith Development Pty Ltd  QCATA 15, considered
Did not attend
represented by Mr A Evans, Creevey Russell Lawyers
REASONS FOR DECISION
- Mr and Mrs Krummel filed an application for a domestic building dispute on 5 May 2016. Their amended statement of claim was filed on 5 October 2016. They claim relief in the amount of $258,239 or an amount to be assessed as damages. The respondent has filed a response and counter-application by documents filed on 16 November 2016 and a Form 36 filed 29 March 2017 and again filed 3 April 2017.
- When the respondent failed to attend a compulsory conference scheduled for 9:30 am on 5 April 2017, the applicants’ representative asked that the matter be stood down so that he might consider what application he could make to me and what orders he might seek on his client’s behalf. I granted him that time. When we returned to the conference, the applicants’ representative indicated that he wished to pursue oral applications for the following orders:
- An order that the respondent’s counter application be struck out under s 48(2)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act); and
- An order that judgment be entered in favour of the applicant with damages to be assessed.
- The applicants submit that s 72 of the QCAT Act gives me the power to make a decision adverse to the respondent as he failed to attend the conference and any other appropriate orders including orders about costs.
- The applicants submit that, by virtue of s 48 of the QCAT Act, I may make a final decision in their favour as the respondent has acted in a way that unnecessarily disadvantages them. Further, it is submitted that properly construed s 72 permits me to make an order pursuant to s 48 of the QCAT Act dismissing the proceedings at the compulsory conference.
- As the applicants wished to make an application relying on s 48 of the QCAT Act, I arranged for the oral application to be heard in a hearing room so that the proceeding was recorded.
- The applicants concede that the requirements set out in s 50 of the QCAT Act, for the making of a decision by default for a liquidated demand of money are not satisfied. I consider that that concession is properly made. In this case, the respondent has responded to the applicants’ claim. I am asked to consider s 48 and s 72 of the QCAT Act.
- It is also conceded by the applicants that in conducting any proceeding, the Tribunal must accord procedural fairness to the parties. It has previously been determined by the Appeal Tribunal in Moreton Island Development Group v Smith Development Pty Ltd that a compulsory conference is a proceeding for the purposes of s 28 of the QCAT Act.
- In this case, I have been guided by the reasons for decision of the Appeal Tribunal in the Moreton Island Development Group case generally. In that case, the Appeal Tribunal set aside the decision of a member presiding at a compulsory conference that Moreton Island Development Group pay Smith Development $194,478.63. The presiding member also dismissed Moreton Island Development Group’s counterclaim except in one respect. In doing so, the member relied on s 72 of the QCAT Act in circumstances where Moreton Island Development Group had failed to attend a compulsory conference.
Consideration of s 72 of the QCAT Act
- Section 72 of the QCAT Act provides:
72 Party fails to attend
(1) If a party to a proceeding does not attend a compulsory conference—
- (a)the conference may proceed in the party's absence; and
- (b)if the person presiding is a member or an adjudicator, and all the parties present agree, the person may—
- (i)make a decision adverse to the absent party and make any appropriate orders, including orders about costs; or
- (ii)order that the absent party be removed from the proceeding, and pay another party's costs reasonably incurred by the other party as a result of the absent party's involvement in the proceeding.
- (2)Subsection (1) applies only if the person presiding over the compulsory conference is satisfied the absent party has been given notice of the conference under section 67(2).
- (3)If a decision or order is made under subsection (1)(b), this Act applies to the decision or order as if—
- (a)the compulsory conference were a proceeding before the tribunal; and
- (b)the decision or order were a decision or order made by the tribunal constituted for the proceeding.
- (4)A person the subject of an order under subsection (1)(b)(ii) may apply to the tribunal to be reinstated as a party to the proceeding.
- (5)The tribunal may reinstate the person as a party to the proceeding if satisfied the person had a reasonable excuse for not attending the compulsory conference.
- The respondent failed to attend the compulsory conference scheduled to take place from 9:30 am on 5 April 2017. Mr Krummel attended with his legal representative.
- At the scheduled start time for the conference, I attempted unsuccessfully to telephone the respondent.
- Unbeknownst to me or the applicants at the commencement of the compulsory conference, the respondent had sent an email to the Tribunal’s registry on Saturday, 1 April 2017 requesting that the compulsory conference be rescheduled to a later date. The email stated that Mr Woods was required to travel to North Queensland to assist with the assessment of damaged homes in towns impacted by Cyclone Debbie. The email stated that he was required to leave urgently and would be leaving the following day, 2 April 2017.
- That email was brought to the attention of the applicants’ representative prior to his confirming that he wished to proceed with making the oral applications and submissions the subject of these reasons.
- A further unsuccessful attempt was made to contact the respondent in the hearing room. The respondent’s mobile phone rang but the call defaulted to the voicemail message.
- I accept for present purposes that the compulsory conference proceeded in the absence of the respondent. I also accept that those present at the compulsory conference consented to me, as the presiding member, making any orders I considered I could make.
- I accept that the compulsory conference notice issued to the parties in advance of the conference date states that if a party does not attend at the compulsory conference, the conference may proceed in their absence and that the person presiding over the conference may make a decision against the interests of the person who does not attend including:
- A decision which finally decides all matters the subject of the proceeding;
- A decision that the absent party be removed from the proceeding; or
- A decision that the absent party pay costs.
- I also accept that the terms of the notice are essentially consistent with the terms of s 72(1)(b) of the QCAT Act. However, the making of a final decision or any of the decisions described in the notice, requires an exercise of discretion by the presiding member. In considering whether to exercise the discretion to make any such orders, I must consider all relevant circumstances of the case.
- The Appeal Tribunal in Moreton Island Development Group said:
Whenever a member exercises a discretionary power conferred by the Act, they should consider whether it is necessary or appropriate to do so in the circumstances.
- I consider that Mr Woods’ reason for not attending the conference is a circumstance relevant to the exercise of the discretion.
- The applicants argue that Mr Woods’ past history of non-compliance with directions made by the Tribunal and his previous failure to attend a compulsory conference should make me feel comfortable in finding that the reason expressed by Mr Woods for his failure to attend was no reason at all or at least was not a reasonable excuse. In support of that submission, the applicants point to Mr Woods’ failure to seek an adjournment in the usual way. He did not notify the applicants that he wished to seek an adjournment of the compulsory conference. Further, it is argued that he could have made himself available for the compulsory conference by telephone. It is also argued that his failure to answer his mobile phone on the occasions that attempts were made to contact him could support a reasonable inference that he was avoiding contact with the Tribunal at the scheduled conference time.
- It is conceded that Mr Woods holds a carpentry site supervisor licence which commenced on 7 October 2016. Therefore, it is not implausible that he has been asked to provide his services in North Queensland as outlined in his email. His email confirms that he is aware of the scheduled conference, was received by the registry before the scheduled date for the compulsory conference and advised the Tribunal that he would not be attending.
- I accept that Mr Woods failed to attend the first compulsory conference scheduled for 5 October 2016. I was the member scheduled to conduct that conference and I issued directions that day including that the respondent file in the Tribunal a written explanation and any supporting documentation as to why he failed to attend the compulsory conference. The respondent complied with that direction, citing medical reasons and providing a document in support of that written explanation.
- I do not consider that I have sufficient evidence to find or reasonably infer from known facts that Mr Woods’ reason for non-attendance is not a valid one.
- The Appeal Tribunal in Moreton Island Development Group went on to say:
Other factors, however, should be considered before the Tribunal proceeds to summary determination. These include the nature and scope of the dispute, whether it is appropriate to determine the matter without an oral hearing and whether the parties have had the opportunity to make submissions about the issues in contest.
Importantly, in this case there was a real and substantial contest. A decision by default was (not) open. MIDG had filed a response and counter-application and substantial material in support of both.
- And later:
The decision made in favour of Smith Development was analogous to summary judgment in civil courts, However, this case did not meet the relevant test: no real prospect of successfully defending all or party of the claim and no need for a trial.
- In this case, while no statements of evidence have yet been directed to be filed, in my view, the application and response and counter-application indicate a real and substantial contest. The applicants are asking me to make a final decision despite not having filed all the evidence in support of their claim where the respondent’s response and counter-application raises a dispute on material facts. Based on those findings and my findings in relation to Mr Woods’ notifying that he would not attend and his reason for non-attendance, I decline to exercise the discretion in s 72 of the QCAT Act to make any decision which finally decides all matters the subject of the proceeding or any other order open under s 72(1) of the QCAT Act at this time.
Consideration of application pursuant to s 48 of the QCAT Act
- Section 48 of the QCAT Act provides:
48 Dismissing, striking out or deciding if party causing disadvantage
- (1)This section applies if the tribunal considers a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including by—
- (a)not complying with a tribunal order or direction without reasonable excuse; or
- (b)not complying with this Act, an enabling Act or the rules; or
- (c)asking for an adjournment as a result of conduct mentioned in paragraph (a) or (b); or
- (d)causing an adjournment; or
- (e)attempting to deceive another party or the tribunal; or
- (f)vexatiously conducting the proceeding; or
- (g)failing to attend mediation or the hearing of the proceeding without reasonable excuse.
- (2)The tribunal may—
- (a)if the party causing the disadvantage is the applicant for the proceeding, order the proceeding be dismissed or struck out; or
- (b)if the party causing the disadvantage is not the applicant for the proceeding—
- (i)make its final decision in the proceeding in the applicant's favour; or
- (ii)order that the party causing the disadvantage be removed from the proceeding; or
- (c)make an order under section 102, against the party causing the disadvantage, to compensate another party for any reasonable costs incurred unnecessarily.
* See section 108 for the tribunal's power to order that the costs be paid before it continues with the proceeding.
- (3)In acting under subsection (2), the tribunal must have regard to the following—
- (a)the extent to which the party causing the disadvantage is familiar with the tribunal's practices and procedures;
- (b)the capacity of the party causing the disadvantage to understand, and act on, the tribunal's orders and directions;
- (c)whether the party causing the disadvantage is acting deliberately.
- (4)The tribunal may act under subsection (2) on the application of a party to the proceeding or on the tribunal's own initiative.
- (5)The tribunal's power to act under subsection (2) is exercisable only by—
- (a)the tribunal as constituted for the proceeding; or
- (b)if the tribunal has not been constituted for the proceeding—a legally qualified member or an adjudicator.
- The applicants submit that I may make an order striking out the respondent’s counter-application (by virtue of s 48(2)(a)) and that I can also then make a final decision in favour of the applicants (by virtue of s 48(2)(b)(i) of the QCAT Act).
- Section 48(4) of the QCAT Act provides that the Tribunal may make such order on the application of a party or on the Tribunal’s own initiative. In this case, no application to strike out the respondent’s counter-application has been filed in the Tribunal or served on the respondent. The applicants seeks to make an ex parte oral application. The Tribunal has not initiated such an application.
- I consider that as s 48(4) is not satisfied, I do not have jurisdiction to hear and determine such an application.
- The applicants submit that the respondent has been given notice that such an order might be made through the contents of the compulsory conference notice which I have outlined above.
- Section 48 of the QCAT Act applies if the Tribunal considers a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding. Section 48(1) lists some of the ways that might occur. The list includes not complying with a direction without reasonable excuse (s 48(1)(a)), causing an adjournment (s 48(1)(d)) and failing to attend mediation or the hearing of the proceeding without reasonable excuse (s 48(1)(g)). Section 48(3) provides that the Tribunal must have regard to particular matters including whether the party causing the disadvantage is acting deliberately. In determining such an application, the Tribunal must make findings about whether one party has unnecessarily disadvantaged another.
- It is common ground that in conducting a proceeding that deals with such an application I must accord the respondent procedural fairness. That is so whether the application is brought by a party or at the Tribunal’s own initiative. In my view, the compulsory conference notice does not give the respondent notice that I may make orders, in his absence, pursuant to s 48 of the QCAT Act. He has not been put on notice of the matters that the applicants seek to rely upon to argue that I can exercise the Tribunal’s discretion to make orders to strike out or dismiss under s 48 of the QCAT Act.
- If no formal application has been filed and the respondent has not been given proper notice of such an application and the matters relied upon in support of the application, I do not consider that I can further consider it.
- I do not consider, as submitted by the applicants that Moreton Island Development Group v Smith Development Pty Ltd is authority for the proposition that an application under s 48 of the QCAT Act can be made orally and then heard and determined when a person fails to attend a compulsory conference. It may be that some of the matters required to be considered in determining a properly made application under s 48 of the QCAT Act are relevant circumstances to be considered in relation to whether the tribunal should exercise its discretion to make any orders under s 72 when a party fails to attend a compulsory conference. However, that is not the same thing as the compulsory conference notice serving as notice that the Tribunal might hear and determine another application which requires specific findings to be made.
- The Appeal Tribunal in Moreton Island Development Group v Smith Development did not consider the application of s 48 of the QCAT Act. Reference was made to s 47 of the QCAT Act in that the Appeal Tribunal said:
Further it would not have met the test for striking out or dismissing the counter-application: that it is frivolous, vexatious or misconceived; or lacking in substance; or otherwise an abuse of process.
- In my view, that passage lent support to the Appeal Tribunal’s reasoning that there was in that case a real and substantial contest. The Appeal Tribunal was saying that the case was not one where striking out or dismissing the counter-application was effectively the most compelling option for the Tribunal when it decided to exercise the discretion in s 72 to effectively give summary judgment for the applicant. As I have already stated an application under s 48 of the QCAT Act requires the Tribunal to consider different matters and make specific findings.
- In the absence of a formal application and the respondent being given proper notice of the application for an order or orders pursuant to s 48 of the QCAT Act, I decline to make any further findings in relation to the oral application made by the applicants.
- It is open for the applicants to make the appropriate application if they so desire.
- I do however accept that as Mr Woods failed to notify the applicants that he would be seeking to adjourn the compulsory conference and I was unaware of the receipt by the registry of the email until the time of the compulsory conference, that the applicants have potentially incurred legal costs that they might not otherwise have incurred.
- Had Mr Woods’ email been brought to the attention of a Tribunal member, the compulsory conference may have been adjourned on the papers or an alternative direction made by the Tribunal as to the future progress of the matter. However, as it transpired, the applicants sought orders which I have dealt with in these reasons.
- The Tribunal may consider an application for costs thrown away in respect of the applicants’ attendance at the compulsory conference. The applicants argue that they are also entitled to costs for seeking final orders.
- In relation to any costs application, I consider that procedural fairness must be accorded to the respondent. I therefore make the following directions:
- (1)Brendan Krummel and Chrissie Krummel may file in the Tribunal and give to Brendan Armstrong Woods t/as Woods Designer Homes one copy of any written submissions in support of an application for costs in connection with the compulsory conference scheduled for 5 April 2017 at 9:30 am by:
4:00 pm on 21 April 2017
- (2)In the event that Brendan Krummel and Chrissie Krummel files submissions in compliance with direction 1, Brendan Armstrong Woods t/as Woods Designer Homes must file any written submission in response by:
4:00 pm on 5 May 2017
- (3)The application for costs will be determined on the papers not before 8 May 2017.
- (4)The proceeding is listed for a directions hearing on 10 May 2017 at 2:30 pm.
  QCATA 15.
 Ibid at  to  (inclusive). Section 28 provides that in conducting a proceeding the Tribunal must observe the rules of natural justice.
 The Tribunal granted leave for the parties to be represented by directions made 1 February 2017.
 Exhibit 2: Email from Brendan Woods to the Tribunal dated 1 April 2017.
 QCAT Act, s 72(1)(a) and s 72(1)(b).
 Notice issued 7 February 2017.
 Moreton Island Development Group v Smith Development Pty Ltd  QCATA 15 at .
 By application or consent order filed in the Tribunal.
 Exhibit 1: Affidavit of Alexandria Morgan Geokas dated 5 April 2017 at  and annexure “AMG 2”.
 Moreton Island Development Group v Smith Development Pty Ltd  QCATA at  and .
 Ibid at  referring to Uniform Civil Procedure Rules 1999, r 292.
 Moreton Island Development Group v Smith Development Pty Ltd  QCATA 15 at .
- Published Case Name:
Brendan Krummel and Chrissie Krummel v Brendan Armstrong Woods t/as Woods Designer Homes
- Shortened Case Name:
Krummel v Woods
 QCAT 115
07 Apr 2017