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Ice Blast Pty Ltd v Sumbulla QCATA 166
Ice Blast Pty Ltd v Sumbulla  QCATA 166
Ice Blast Pty Ltd
On the papers
Senior Member Stilgoe OAM
7 November 2016
APPEAL – LEAVE TO APPEAL – PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PARTIES AND REPRESENTATION – where agent of respondent named in proceedings – where agent applied to dismiss claim – where tribunal substituted proper respondent – where proper respondent not served with claim – where proper respondent served with notice of hearing – where proper respondent did not appeal at hearing – where application to reopen refused – whether grounds for leave to appeal
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3(b), s 4(c), 139(5)
Acts Interpretation Act 1954 (Qld) s 39A
Pickering v McArthur  QCA 294
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 (Qld) (QCAT Act).
REASONS FOR DECISION
- In December 2015, lightning struck Thomas Sumbulla’s air conditioning unit. Ice Blast Pty Ltd came out to fix it, replacing the outdoor PC boards. Ice Blast sent Mr Sumbulla an invoice for $1,931.60.
- When Mr Sumbulla turned the air conditioning on after Ice Blast left, it failed again. Mr Sumbulla contacted the manufacturer who sent a technician around on Christmas Eve. The technician found the fault was due to a cracked capacitor and a faulty transistor. The statement from the manufacturer’s technician suggested that the capacitor cracked because of Ice Blast’s faulty installation.
- Mr Sumbulla filed an application asking that he be relieved from any obligation to pay Ice Blast. Unfortunately, he named Ice Blast’s debt collection agent, B2B Debt Recovery as the respondent. B2B applied to dismiss the claim. The tribunal did not dismiss the claim but substituted Ice Blast as the correct respondent.
- Ice Blast received a copy of that order, and a copy of the notice of hearing, but it did not receive a copy of Mr Sumbulla’s claim. Ice Blast did not attend the hearing. The tribunal ordered that Mr Sumbulla was relieved of the liability to pay Ice Blast.
- Ice Blast applied to reopen the proceeding. The application was refused.
- Ice Blast wants to appeal the refusal to reopen the proceeding. The tribunal’s decision on a reopening application is final and cannot be the subject of an appeal.
- Ice Blast can appeal the earlier decision and its submissions to the appeal tribunal appear to be directed to errors in that decision. I will, therefore, assume that the appeal is against the tribunal’s decision that that Mr Sumbulla was relieved of the liability to pay Ice Blast.
- Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.
- Ice Blast says it did not receive procedural fairness or natural justice from the tribunal. It says that, when B2B was removed as a party, Mr Sumbulla should have been required to file a new application, naming Ice Blast. It says that Mr Sumbulla should have served Ice Blast with a copy of the application. It says all correspondence should have been directed to B2B, because it was collecting material for an application against Mr Sumbulla. It says that the original hearing date was set for 12 April 2016 and it received no other notice of hearing. It says it should have been given a reasonable period to respond and consider its position. It says it was not given a proper hearing.
Should Mr Sumbulla have been required to file a new application, naming Ice Blast?
- There was no need for Mr Sumbulla to file a fresh claim. The claim he had filed identified the facts giving rise to the claim and what he wanted the tribunal to do. The tribunal had the power to substitute the correct respondent and it did so. There was no basis for asking Mr Sumbulla for another filing fee when the dispute was clearly before the tribunal.
Should Mr Sumbulla have served Ice Blast with a copy of the claim?
- Ordinarily, the answer to that question would be ‘yes’: the claim should be served on the new respondent. In this unusual case, however, the failure to serve Ice Blast did not result in a failure to provide natural justice.
- As B2B’s application to dismiss Mr Sumbulla’s claim observes, it was the authorised agent for Ice Blast, it was acting on behalf of Ice Blast, and taking instructions from it. Ice Blast must have known about the claim and given B2B instructions to bring the application to dismiss. Ice Blast was, therefore, in a position to respond to the claim and it suffered no disadvantage from Mr Sumbulla’s failure to serve the claim on it.
- The tribunal had no obligation to give a copy of the claim to Ice Blast. It should, perhaps, have directed Mr Sumbulla to serve a copy but, as I have already indicated, Ice Blast has not suffered any disadvantage because the tribunal did not make that direction.
Should all correspondence have been directed to B2B?
- This submission contradicts Ice Blast’s previous submission that it should have been served with a copy of the claim.
- If Ice Blast is the proper respondent, then, in the absence of an application nominating B2B as its agent, or nominating an address for service, the tribunal was obliged to send correspondence to Ice Blast.
Did Ice Blast receive notice of the hearing date?
- The tribunal sent a notice of a hearing on 12 April 2016 to B2B. It was that document that prompted the application to dismiss the claim.
- There is an email from B2B to the registry confirming the best mailing address for Ice Blast. The tribunal sent the decision joining Ice Blast as a respondent and a notice of a hearing on 28 April 2016 to the address nominated by B2B.
- Section 39A of the Acts Interpretation Act 1954 (Qld) states that, if an Act permits a document to be served by post, it is taken to have been effected at the time at which the letter would be delivered in the ordinary course of post, unless the contrary is proved. The letters were not returned to the tribunal and Ice Blast did not give convincing evidence that they were not received. Therefore, the tribunal was entitled to find that the letters were delivered/served in the ordinary course of post.
A proper opportunity to put its case
- Ice Blast knew that Mr Sumbulla filed a claim against it. It knew, through B2B, that it was the proper respondent. The tribunal sent a notice of hearing to Ice Blast. It failed to appear and application to reopen was refused.
- Ice Blast’s failure to obtain a proper hearing is not through tribunal error. Leave to appeal should be refused.
- Published Case Name:
Ice Blast Pty Ltd v Sumbulla
- Shortened Case Name:
Ice Blast Pty Ltd v Sumbulla
 QCATA 166
Senior Member Stilgoe OAM
07 Nov 2016