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- Marino Law v VC[2021] QCAT 348
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Marino Law v VC[2021] QCAT 348
Marino Law v VC[2021] QCAT 348
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Marino Law v VC [2021] QCAT 348 |
PARTIES: | robert james marino atf the rjm legal investment trust and benjamin anthony marino atf the bam legal trust in partnership trading as marino law abn 88 075 786 040 (applicant) v vc (respondent) |
APPLICATION NO/S: | MCDO 00129/21 |
MATTER TYPE: | Other minor civil dispute matters |
DELIVERED ON: | 27 October 2021 |
HEARING DATE: | On the papers |
HEARD AT: | Southport |
DECISION OF: | Adjudicator Alan Walsh |
ORDERS AND DIRECTIONS: |
|
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS – ACTIONS TO REVIEW OR SET ASIDE JUDGMENT OR ORDER – GENERALLY – where final orders made against Respondent for failure to attend minor civil dispute hearing on 19 August 2021 ostensibly without reasonable excuse – where final orders not made on case merits – where Respondent applied to reopen proceeding – where Applicants did not oppose reopening application – whether reopening ground requires previous decision made on the merits – whether Tribunal may reopen proceeding finally decided for failing to attend without reasonable excuse – whether Respondent established reopening ground – whether proceedings should be reopened Acts Interpretation Act 1954 (Qld), s 9, s 14A Human Rights Act 2019 (Qld), s 31 Judicial Review Act 1991 (Qld), s 4, s 7, s 18, s 20, s 23, s 26 Legal Profession Act 2007 (Qld), s 328. Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 4, s 13, s 28, s 29, s 48, s 93, s 126, s 127, s 136, s 138, s 139, s 140, s 156, s 226, Schedule 3 Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 48, r 81, r 89 Barry-O'Neill v Masters & Anor [2018] QCAT 415 Biddle v Formosa [2000] QCA 366 Cruceru v Medical Board of Australia [2016] QCAT 111 Darragh v Davies [2017] QCAT 181 Edwards v Edgar & Wood Solicitors [2018] QCATA 154 Morales v Murray Lyons Solicitors (a firm) [2010] QCATA 87. Queensland Building Services Authority v Queensland Civil and Administrative Tribunal & Anor [2013] QSC 167 Ramke Constructions Pty Ltd v Queensland Building Services Authority [2012] QCAT 417 Reihana v Davern & Anor [2014] QSC 127 Reihana v Davern & Anor [2015] QCA 42 Reihana v Beenleigh Show Society & Ors [2020] QSC 55 The Potman Pty Ltd v Reaoch [2011] QCATA 318 Warren v Queensland Law Society Inc [2016] QCAT 310 Van Zyl & Anor v Rentstart [2021] QCATA 120 |
APPEARANCES & REPRESENTATION: |
|
Applicant: | Mr N Rossi, Associate |
Respondent: | Self-Represented |
REASONS FOR DECISION
Anonymity
- [1]I have anonymised the Respondent VC because his former solicitors acted for him in the family law jurisdiction of what was then the Federal Circuit Court of Australia, now merged with the Family Court of Australia and called the Federal Circuit and Family Court of Australia, out of which these proceedings arise.
Background
- [2]VC is a migrant from Eastern Europe. Russian is his mother tongue, English his second language, and he represents himself in this proceeding.
Claim
- [3]Robert Marino and Benjamin Marino, as trustees of their respective trusts trading as Marino Law, claim the unpaid balance of their legal costs of $2,832.94 and interest pursuant to contract at 7.5% per annum, plus the filing and service fees in these proceedings, for legal work performed for VC pursuant to a client costs agreement.
Defence
- [4]VC asks in his response for an order dismissing the claim and a refund of $20,000 previously paid “for not providing any legal service to me” and says that “I haven’t received anything from Marino Law; Mrs Leszczuk wasn’t able to write two letters to order the business and the properties valuations as had been requested by the Court; I suffer financial losses after dealing with Marino law”.
- [5]VC also says that Marino Law neglected to reply to his requests for reports and to be ready for a Federal Circuit Court hearing of the family law case on 3 December 2020. Specifically, in exhibits VC1-4 attached to his List of Documents dated 24 May 2021 filed by him, he says that he did not receive a reply emails sent to Mrs Leszczuk of Marino Law on:
- (a)26 October 2020 at 9:08 AM.
- (b)3 November 2020 at 11:34 AM.
- (c)11 November 2020 at 1:21 PM.
- (d)17 November 2020 at 9:41 AM.
- (e)18 November 2020 at 2:01 PM.
- (f)27 November at 11:19 AM.
- (g)1 December 2020 at 10:35 AM, 11:01 AM, 1:10 PM and 3:50 PM, respectively.
- (a)
- [6]In combination with the claim, the overall amount in dispute in this case exceeds $23,000.00.
Documents
- [7]Marino Law filed a hard copy of the client file for VC with the Tribunal, as previously directed by me, and mailed a USB stick containing an electronic copy of it to VC, but has not yet filed and given to VC the internal file notes of solicitors and paralegal staff insofar as are relevant to the Application for minor debt and Response as required by the QCAT Rules.[1]
- [8]Section 28(3)(e) of the QCAT Act requires that I ensure, as far as practicable, that all material is disclosed to the Tribunal to enable it to decide the proceeding with all the relevant facts.
Dispute Heard and Determined
- [9]I heard and finally determined this dispute in favour of Marino Law on 19 August 2021, in the unexplained absence of VC, pursuant to section 48(1)(g)[2] of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act). Read with section 48(2)(b)(i), the section permits a final decision in favour of an applicant where a respondent fails without explanation to attend a hearing. This is not an uncommon occurrence in circumstances where adjudicators hear many cases on any given day and often have limited time to get through them.
- [10]It is also not uncommon for the Tribunal to make an order pursuant to section 48(2)(a) of the QCAT Act dismissing a claim for an Applicant’s failure to attend a hearing. Section 13(1) of the QCAT Act provides that the tribunal may, if considered appropriate, make an order dismissing an application and section 93(1)(a) read with section 93(3) of the QCAT Act provides that cases may be heard in the absence of a person or party.
Reopening Application
- [11]Subsequently, VC filed an application to reopen the proceedings. I reserved my decision when the matter came before me for a decision on the papers. I did so because there is a conflict in Tribunal case law presently on whether reopening is possible where a case has not been decided on the merits.
Reopening Prerequisites
- [12]VC received the Tribunal’s final decision dated 19 August 2021 by email the same day. He filed a Form 43 Application to reopen the proceeding on 31 August 2021, within the 28-day time limit required by Rule 89(b) of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld).
- [13]I am satisfied that the several requirements set out in section 138(1), (2) and (4) of the QCAT Act concerning the basis for, and the form and substance of, an application for reopening have been met, and that the Principal Registrar gave Marino Law a copy of VC’s application to reopen and called for written submissions.
- [14]To succeed in obtaining a reopening, VC must establish a reopening ground and that the Tribunal should exercise its discretion to reopen the proceeding. Insofar as is relevant in the present case, “reopening ground” defined in Schedule 3 of the QCAT Act means that the party wanting a reopening did not appear at the hearing of the proceeding and the party had a reasonable excuse for not attending.[3]
- [15]Reopening orders are not granted lightly.[4] For example, forgetting to turn up punctually at a hearing is not a reasonable excuse for failing to attend a hearing.[5] As will be explained, VC did not forget to turn up for his hearing. It emerged that there was another reason for his absence that was not apparent to me at the time of the hearing.
Reopening Discretion
- [16]Section 139(4) of the QCAT Act provides that the Tribunal may grant an application to reopen a proceeding only if it considers –
- (a)a re-opening ground exists for the applicant party; and
- (b)the ground could be effectively or conveniently dealt with by reopening the proceeding under this division, whether or not an appeal under part 8 relating to the ground may also be started.
- (a)
Competent Finality
- [17]It is the human right of an individual to have a civil proceeding decided by a competent, independent and impartial Court or Tribunal after a fair hearing,[6] Though not in terms of the Human Rights Act 2019 (Qld) because it is an artificial person to which the Act does not apply, a company has no lesser right to justice in that way.
- [18]The dismissal of a reopening application is final. An order dismissing an application to reopen a proceeding cannot be challenged, appealed, reviewed, set aside, or called into question, in any other way.[7] I refer to these as the prohibitions. The Tribunal must therefore consider every reopening application very carefully, not arbitrarily or superficially. Otherwise, an irreversible injustice will occur within the Tribunal.
- [19]The Tribunal plainly does not have jurisdiction to make decisions arbitrarily or capriciously. Decisions so made will exceed jurisdiction, in error of law. Therefore, the prohibitions to which I have referred are not as absolute as a literal reading first suggests. They do not displace the oversight jurisdiction of the Supreme Court of Queensland in terms of the Judicial Review Act 1991 (Qld)[8] for jurisdictional error[9] in QCAT.
- [20]
- [21]Section 156 of the QCAT Act, makes no distinction between the various jurisdictions of QCAT, all of which at any level are amendable to judicial review for jurisdictional error[12] in appropriate cases. The section provides that the Judicial Review Act 1991, parts 3 to 5, do not apply to a decision or to the conduct of the tribunal in a proceeding other than to the extent that the decision or conduct is affected by jurisdictional error.
Reopening Grounds
- [22]Of relevance to VC’s reopening application is that he attended a previous hearing on 22 July 2021 by telephone and had leave to do so. That hearing was adjourned with directions, because he was suffering from flu-like symptoms, had been unable to arrange a medical appointment for a Covid-19 test, and remained at home in accordance with a Queensland Health directive.
- [23]VC says in his reopening application that he was not “invited” to the Court Hearing on 19 August. What he means by this figure of speech is not entirely clear because the Tribunal does not issue invitations to hearings, it issues notices requiring attendance at hearings.
- [24]VC also says that he did not receive notice of the hearing, but I reject that statement. I am satisfied that he did in fact receive notice of the hearing for 19 August 2021, both by email to his nominated address, and by mail, requiring that he attend in person at Court 5 on the second floor of the Southport Courthouse at least 10 minutes before the appointed hearing time on the day.
- [25]The Tribunal may inform itself of anything as it sees fit.[13] I have had regard to the Tribunal record of what happened in the QCAT Registry at the Southport Courthouse, brought to my attention after the hearing concluded on 19 August 2021. The following occurred.
- [26]VC sent an email on 19 August 2021 at 12:28 pm to QCAT Registry at Southport, approximately 3 hours before the hearing. In it, he asked whether the hearing would be by telephone or in person. I infer that this was because he had attended the previous hearing by telephone. Unfortunately, QCAT Registry neglected to onforward the email to the Hearing Support Officer in Court 5 to reach the Tribunal file before the hearing commenced.
- [27]The hearing commenced at 3:08 pm and ended at 3:20 pm. An Acting Deputy Registrar at the Southport Courthouse only discovered VC’s email to the Courthouse at 3:25 pm and forwarded it to the Hearing Support Officer, by which time it was too late, which explains why VC failed to attend the hearing. I infer that this is the “invitation” to which he refers, that he was waiting for a clarificatory telephone call or an email (“invitation”) that never came.
- [28]The fact that English is VC’s second language, that he is unrepresented, that he is unfamiliar with QCAT procedures and processes, that he had attended the previous hearing by telephone, and that he received no response to his email to the Court House some three hours earlier on the day, tips the scales in favour of allowing VC a reopening.
Statute - Interpretation
- [29]Decisions in this Tribunal and in the Supreme Court of Queensland have a bearing on the interpretation of the reopening provisions of the QCAT Act, including section 140, read with sections 136, 138, and 139, and the definition of “reopening ground” in Schedule 3 of the QCAT Act.
- [30]Section 136 of the QCAT Act provides that Division 7 (Reopening) applies to a proceeding other than an appeal that has been “heard and decided” by the Tribunal. Section 138(1) empowers a party to apply for a reopening. Section 139 prescribes the reopening procedures.
- [31]Section 140 of the QCAT provides as follows:
- (1)If, under section 139, the tribunal decides a proceeding should be reopened, the tribunal must decide the issues in the proceeding that must be heard and decided again.
- (2)The issues must be heard and decided by way of a fresh hearing on the merits,[14] and subsection (1) does not prevent the tribunal from hearing and deciding other related issues in the proceeding.
- (3)The hearing and deciding of the issues and any related issues are taken to be part of the original proceeding.
- (4)The tribunal may –
- (a)confirm or amend the tribunal’s previous final decision in the proceeding; or
- (b)set aside the tribunal’s previous final decision in the proceeding and substitute a new decision.
- (5)For this Act or an enabling Act, the decision of the tribunal as confirmed, amended or substituted under subsection (4) is the tribunal’s final decision in the proceeding.
- (6)The proceeding can not be reopened again under this division.
- [32]The definition of “decision” in Schedule 3 of the QCAT Act is “an order made or direction given by the tribunal” as well as a final decision in a proceeding. By section 126 of the QCAT Act, a Tribunal decision is binding on all parties and, by section 127, it takes effect when it is made or, if the decision states a later date or time when the decision is to take effect, the later date or time.
Cases
- [33]Insofar as section 140(2) of the QCAT Act requires that a reopened proceeding be heard and decided by a fresh hearing on the merits,[15] does it imply that the original hearing must itself have been adjudicated on the merits? There are Tribunal cases for and against the point, to which I now turn.
- [34]Ramke Constructions Pty Ltd v Queensland Building Services Authority [2012] QCAT 417 (Ramke), is a case in which an Applicant applied, unsuccessfully, to reopen a proceeding where its’ representative had earlier failed to attend a compulsory conference hearing, had failed to attend a subsequent directions hearing, and had failed to show cause why the application should not be dismissed pursuant to section 48(2) of the QCAT Act as directed.
- [35]A learned Tribunal Member in Ramke said:
Usually in a hearing of the proceeding, the merits of the proceeding would be considered and assessed by the Tribunal, although this might not happen for example if the applicant does not appear and the Tribunal is satisfied that the application is no longer being pursued.[16]
…………….
But when a proceeding is dismissed or struck out for non-compliance nothing of this nature happens. Instead, all that is considered is whether it is just to dismiss or strike out for the non-compliance in all the circumstances of the case. On such a dismissal or strike out the proceeding is not heard, nor is a decision made as to the success or failure of the proceeding whether on its merits or otherwise. Therefore the proceeding is not “heard and decided” and the re-opening regime does not apply to the decision to dismiss or strike out.[17]
- [36]He went on to say that:[18] “ …. by way of fresh hearing on the merits” are “not words which fit well with a reopening of a dismissal or strike out for non-compliance, since in such circumstances the issues in the proceeding have not been decided at all” and[19] in that event section 140(5) “ …would mean that a proceeding which had been dismissed or struck out for non-compliance but then reopened and allowed to proceed upon a condition (such as giving security for costs or a payment-in to the Tribunal) would be stultified and could not in fact proceed to a hearing … because the new order would be in substitution for the reopened order and would be deemed to be the Tribunal’s final decision in the proceeding.” Section 140(5), he said, could not be read that way.
- [37]My reading of the reasons in Ramke is that the case is not authority for the proposition that a proceeding dismissed for failure to attend a final hearing may not be reopened. The learned Member’s reasoning only addressed the situation where there had been a dismissal or strike out for non-compliance with a Tribunal order, but no hearing as such. It only applies to a purely procedural dismissal where the case has not been heard and determined.[20] It does not affect a litigant’s right to apply for a reopening of a non-merits dismissal at a final hearing, such as in the present case.
- [38]The Queensland Supreme Court considered Ramke in Queensland Building Services Authority v Queensland Civil and Administrative Tribunal & Anor [2013] QSC 167 (QBSA v QCAT). That case concerned a decision of the Tribunal at first instance dismissing a review application for non-compliance with successive directions to file statements of evidence. The Tribunal had made a reopening order on the application of Mr Wiperi, a builder, who had applied to review an adverse QBSA decision regarding his licence.
- [39]The QBSA successfully appealed the Tribunal’s reopening decision in the Supreme Court of Queensland. It contended[21] in the appeal proceedings that a self-executing order for dismissal for non-compliance with Tribunal directions, as had occurred at first instance, was not susceptible to reopening absent a specific provision of the QCAT Act permitting it.
- [40]Applegarth J agreed. Referring to a reopening ground being a condition precedent to the exercise of jurisdiction to reopen a proceeding, he said as follows:[22]
The matter therefore throws up a conflict in the decisions of the tribunal between the present decision which is challenged and the decision in Ramke. I must say that the matter is not (sic) entirely straight forward, particularly in circumstances in which the tribunal for good reason, conducts “hearings” as it were on the papers. It might be said to have “heard and decided” the application that was made to it to make a self-executing order, but not heard and decided “the proceeding”. Although the matter is open to different contentions and I have not had a contradictor to argue to the contrary, my preference is to follow Ramke and the reasoning in it.
In those circumstances there was not a reopening ground because the proceeding had not been heard and decided as that term is used in section 138(b). That might seem a curious and unjust result where the earlier decision was one having the substantial consequences that follow. However, I think that Ramke is correct.[23]
- [41]Darragh v Davies [2017] QCAT 181 (Darragh), on the other hand, was a case in which the parties had settled a tree dispute and agreed to a dismissal order, which one of them subsequently sought, unsuccessfully, to set aside by making a reopening application. A learned Senior Member held that the dispute had not been heard and determined. He went a step further saying that an original decision in a proceeding had to have been made on the merits as a prerequisite for reopening.
- [42]Barry-O'Neill v Masters & Anor [2018] QCAT 415 (Masters) was also a case in which the parties had consented to an order dismissing an application for a tree dispute. Upon a subsequent application by one of the parties to reopen the proceeding, the Tribunal held that the dismissal was not a matter “heard and decided by the Tribunal” and that the case was, therefore, not susceptible to reopening.
- [43]From my careful reading of them, each of the decisions in QBSA v QCAT, Ramke, Masters, and Darragh are distinguishable on the facts from those in the present case, none of them involved a “hearing and determination”. In the present case, the dispute was heard and determined, but not decided on the merits when I ordered VC to pay Marino Law’s claim. If I were to follow Darragh, then I would have to dismiss VC’s reopening application, notwithstanding that a reopening ground has been made out.
- [44]The reopening provisions of the QCAT Act should not, in my respectful opinion, be interpreted as implying that the original final decision in the proceedings sought to be reopened must have been made on the merits, as was held in Darragh.[24] My reasons for that conclusion are as follows.
- [45]First, the threshold for ordering a reopening is no more than that a dispute has been heard and determined (finally), as in the present case, that there is or was a reasonable excuse for the non-attendance, and, in the words of section 139(4)(b) of the QCAT Act, that the reopening ground can effectively or conveniently be dealt with by reopening the proceeding under Division 7 of Chapter 2. Significantly, there is nothing in the definition of a reopening ground that requires the original decision must have been made on the merits.
- [46]Second, interpreting the reopening provisions of the QCAT Act as requiring that the original decision must have been made on the merits is inconsistent with the Tribunal’s statutory function to conduct proceedings as quickly as is consistent with achieving justice[25] and with as little technicality as the requirements of the QCAT Act and the rules and a proper consideration of the matter permit.[26] The imperative in section 14A(1) of the Acts Interpretation Act 1954 (Qld) is that an interpretation that will best achieve the purpose of the Act, here - informality, simplicity and expedition, must be preferred to any other interpretation.
- [47]Third, matters capable of quick resolution before an Adjudicator ought not, in effect, have to be redirected through more arduous processes elsewhere in the Tribunal. The discretion to refer an application for leave to appeal back to an Adjudicator to consider as a reopening application in the interests of procedural efficiency in appropriate cases, ought not be negatived.
- [48]If it were otherwise, a party refused a reopening in circumstances where a dispute had been heard and determined, but not on the merits, would have to apply to the President of the Tribunal for leave to make a fresh application on the same facts for the same relief, potentially resulting in a multiplicity of proceedings, that is – the application for leave, and a subsequent separate application on the original basis, for hearing afresh with leave. That outcome would be inconsistent with the Tribunal’s statutory objectives and functions, to which I have referred.
- [49]Judicial Member Justice Carmody (as he then was) in Warren v Queensland Law Society Inc [2016] QCAT 310 at [3] (Warren), citing Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301, relevantly said:
A reopening is a quick and easy way of achieving QCAT’s stated objects, via a statutory process of reviewing a decision without the delay and inconvenience (sic) of having to appeal (that the “functus officio” doctrine would otherwise prevent).
- [50]The Honourable JB Thomas, Judicial Member (as he then was) in Cruceru v Medical Board of Australia [2016] QCAT 111 (Cruceru), relevantly said:[27]
Broadly speaking, the specified reopening grounds mirror two of the recognised areas in which courts have traditionally been prepared to set aside regularly obtained judgments: namely judgments by default (as, for example, where a party fails to appear and judgment has been given without determination on the merits), and cases where fresh evidence has been discovered that was not reasonably available before determination of the matter. In all such matters the court exercises a discretion, and a considerable body of case law reveals the factors that have influenced the outcome of such applications.
………
To the extent that ss 136-141 permit, one would expect the Tribunal in the exercise of its discretion generally to act on similar factors and principles to those that the courts have found to be persuasive.[28]
……………..
Apart from those two conditions (a reopening ground exists and could be effectively or conveniently dealt with by reopening the proceeding under this division, whether or not an appeal under part 8 relating to the ground may also be started) which are conditions precedent to the grant of such relief, the discretion is unfettered.[29]
However, a discretion remains to be exercised by the Tribunal. Satisfaction of the conditions in s 130(4) simply means that the applicant is entitled to a fair discretionary consideration of whether the matter should be reopened.
- [51]Those statements of principle in Warren and Cruceru support my interpretation of the reopening provisions of the QCAT Act in this case. I will therefore make a reopening order.
Section 29 Explanation
- [52]The reopening provides a convenient opportunity to perform my statutory duty under section 29 of the QCAT Act[30] to take all reasonable steps at this stage of the proceeding:
- (a)to ensure that each party understands the practices and procedures of the Tribunal and the nature of the assertions and the legal implications of the assertions;[31]
- (b)to understand the actions, expressed views and assertions of a party having regard to the party’s cultural and socioeconomic background;[32]
- (c)to ensure that proceedings are conducted in a way that recognises and is responsive to cultural diversity and (pertinently in VC’s case) the needs of a party who is from another culture or linguistic background.[33]
- (d)
- (a)
- [53]I explain the following to the parties in circumstances where VC is not a lawyer, and where English is his second language.
- [54]Marino Law has the onus of proving:
- (a)a cost agreement with VC that complied with the requirements of the Legal Profession Act 2007 (Qld).
- (b)that Marino Law made a costs disclosure and gave costs estimates to VC in writing, as required by the Legal Profession Act 2007 (Qld), before he signed it.
- (c)that Marino Law performed legal work for VC on his instructions, in accordance with the cost agreement.
- (d)that Marino Law reported to VC as required and when requested.
- (e)that Marino Law billed VC in accordance with the cost agreement and that invoices for fees and outlays were accompanied by statutory notices informing VC of his right to have costs assessed and to apply to set aside the cost agreement.
- (f)that the unpaid invoices from Marino Law to VC are (over) due and payable.
- (a)
- [55]VC:
- (a)has the onus of proving that what he says his Response to Marino Law’s claim and what he says in respect of the documents VC 1-4, to which I referred earlier, is true.
- (b)may only rely on what he says in the Response and that which may reasonably be inferred from it and associated documents which he has filed with the Tribunal and served on Marino Law.
- (a)
- [56]I explain that if there is something in VC’s Response that he no longer wishes to rely on, then he must now amend the Response by deleting the allegation/s and serve a copy on Marino Law; and if there is something not in VC’s Response presently that he wishes to rely on then he must now amend it by adding the allegation/s and serve a copy on Marino Law.
- [57]I explain the following limitations in procedure and jurisdiction of the Tribunal in the present proceedings for a minor civil dispute – minor debt claim insofar as they affect VC:
- (a)VC cannot make a counterapplication or counterclaim because QCAT Rule 48(3) of the QCAT Rules prohibits it, therefore the claim for refund of $20,000.00 for legal costs previously paid to Marino Law cannot be considered in the present proceedings.
- (b)VC cannot make a Consumer Claim against Marino Law in this Tribunal because a firm of solicitors is not a “trader” within the meaning of that term in the QCAT Act.[36]
- (c)VC cannot apply for an order to set aside the cost agreement in the present proceedings for minor civil dispute – minor debt claim.
- (d)An application to set aside a cost agreement may (only) be filed in another division of this Tribunal, pursuant to section 328 and 328(1A) of the Legal Profession Act 2007 (Qld).
- (e)The form and content of an application to set aside a cost agreement must, if filed, comply with Rule 10 of the QCAT Rules and Practice Direction 2 of 2015 made pursuant to section 226 of the QCAT Act.
- (a)
- [58]I explain that the Tribunal cannot advise VC, he must get independent advice if required and have regard to the QCAT website which provides information to litigants on the Tribunal’s processes; the Tribunal will not conduct VC’s defence for him, that he must do so himself; and the Tribunal will not arrange for these reasons for decision and the orders/directions to be interpreted to him in the Russian language, he must arrange that himself if required.
Orders/Directions
- [59]I order and direct as follows:
ORDERS
- The proceedings are reopened.
- The Orders dated 19 August 2021 are set aside.
- The issues that must be heard and decided again are all the issues in the proceeding.
- The issues in the dispute must be heard and decided by way of a fresh hearing on the merits.
- QCAT Registry relist the matter for final hearing by Adjudicator Alan Walsh on a date after 30 November 2021 on notice by email and mail to the parties.
- QCAT arrange for an Interpreter of the Russian Language to attend the hearing in person.
DIRECTIONS
- The Applicants must on or by 4 pm on 3 November 2021 file with the Tribunal, and email to the Respondent, all file notes and other documents not already disclosed that variously are relevant to the issues in dispute and as will enable the Tribunal to decide the proceeding with all the relevant facts.
- The Respondent must on or by 4 pm on 17 November 2021 file with the Tribunal and email to the Applicants any amended Response on which he wishes to rely.
- The Applicants and Respondent must on or by 24 November 2021 confer on a without prejudice basis to see if the dispute can be settled and promptly file an Application for consent orders if it is resolved.
- QCAT Registry place this file before Adjudicator Alan Walsh for a review on the papers after 24 November 2021.
- QCAT Registry email and mail this decision and these reasons and orders to the parties.
Footnotes
[1]Queensland Civil and Administrative Tribunal Rules 2009 (Qld), rule 81(2).
[2]Failing to attend the hearing of the proceeding without reasonable excuse.
[3]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), Schedule 3.
[4]The Potman Pty Ltd v Reaoch [2011] QCATA 318 at [8] to [10].
[5]Ibid.
[6]Human Rights Act 2019 (Qld), s. 31.
[7]QCAT Act, s. 139(5).
[8]Judicial Review Act 1991 (Qld), s. 4, s. 7, s. 18, s. 20, s. 23, s. 26.
[9]See the QCAT Act, s. 156.
[10]Reihana v Davern & Anor [2015] QCA 42 at [3[, [4] per Holmes JA, with whom Gotterson JA and Jackson J agreed; Reihana v Davern & Anor [2014] QSC 127 at [13] per A Wilson J.
[11]See section 9(1)(a) of the Acts Interpretation Act 1954 (Qld).
[12]Reihana v Beenleigh Show Society & Ors [2020] QSC 55, per Wilson J at [93], [94], [98] to [102], and [104] to [114], and the cases cited there.
[13]QCAT Act, s. 28(3)(c).
[14]Italicised for emphasis.
[15]Similarly.
[16]Ramke Constructions Pty Ltd v Queensland Building Services Authority [2012] QCAT 417 at [14].
[17]Ibid.
[18]At [16].
[19]At [17].
[20]Italicised for emphasis.
[21]Queensland Building Services Authority v Queensland Civil and Administrative Tribunal & Anor [2013] QSC 167 at page 4, lines 25 to 29.
[22]Ibid, at page 5, lines 10 to 18.
[23]Ibid, lines 19 to 23.
[24]Darrah v Davies [2017] QCAT 181, at [17].
[25]QCAT Act, s. 4(c).
[26]Ibid, s. 28(d).
[27]Cruceru v Medical Board of Australia [2016] QCAT 111, at [31].
[28]Ibid, at [32].
[29]Ibid, at [34].
[30]Recently reviewed in Van Zyl & Anor v Rentstart [2021] QCATA 120 at [29] ff.
[31]QCAT Act, s. 29(1)(a)(i) and (ii).
[32]Ibid, s. 29(1)(b).
[33]Ibid, s. 29(1)(c).
[34]Ibid, s. 29(2)(a).
[35]Ibid, s. 29(2)(c).
[36]Morales v Murray Lyons Solicitors (a firm) [2010] QCATA 87; cf Edwards v Edgar and Wood Solicitors [2018] QCATA 154.