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Stanton v Electrics Downunder Pty Ltd[2018] QCATA 106

Stanton v Electrics Downunder Pty Ltd[2018] QCATA 106

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Stanton v Electrics Downunder Pty Ltd [2018] QCATA 106

PARTIES:

NOEL EDWARD STANTON

(applicant/appellant)

 

v

 

ELECTRICS DOWNUNDER PTY LTD

(respondent)

APPLICATION NO/S:

APL245-17

ORIGINATING APPLICATION NO/S:

BDL231-16

MATTER TYPE:

Appeals

DELIVERED ON:

30 July 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Paratz

ORDERS:

The application made by Electrics Downunder Pty Ltd, seeking that the Application for leave to appeal or appeal be struck out, is dismissed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND FEDERAL COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT – STAY OR DISMISSAL OF PROCEEDINGS – where a party did not take part in a Directions Hearing by telephone, and an appeal hearing by video call as scheduled – where an application was made to strike out the proceeding – where further directions had been made as to the Directions Hearing – where the party submitted that it had attempted to take part in the appeal hearing but was unable to do so due to technical difficulties

REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

Self-represented

APPEARANCES:

 

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

  1. [1]
    Mr Stanton is a builder. He engaged Electrics Downunder Pty Ltd (‘Electrics Downunder’) as a sub-contractor to conduct work on a house at Alligator Creek in North Queensland. The principal of Electrics Downunder is Mr Russell Norman Henry. The owner of the house was Mr Shaun Cook.
  2. [2]
    A dispute arose between Mr Stanton and Electrics Downunder, and an application for a domestic building dispute was determined by the Tribunal by an ‘on the papers’ hearing on 27 June 2017. The order of the Tribunal was:

Noel Edward Stanton must pay to Electrics Downunder Pty Ltd $9,309.14 by 4:00pm on 18 July 2017.

  1. [3]
    Mr Stanton filed an Application for leave to appeal or appeal on 27 July 2017.
  2. [4]
    An application by Mr Stanton for a stay of the decision of the Tribunal was refused on 15 March 2018.
  3. [5]
    Numerous miscellaneous applications have been filed in the proceedings, and have yet to be determined. They are:
    1. (a)
      28 November 2017: An application by Electrics Downunder to admit fresh evidence:
      1. Certificate of test 725 – Main switchboard
      2. Certificate of test 806 – Distribution Board & all other circuits
      3. Sergon non-completion assessment report
      4. AS3000.2007 definition ‘appliance’
      5. Application for domestic building disputes (BDL231-16)
    2. (b)
      4 December 2017: An application by Electrics Downunder to admit fresh evidence:
      1. Section 67G of the QBCC Act 1991
      2. Schedule 1B of QBCC Act 1991, Section 3, Subsection 2a
      3. Building and Construction Industry Payments Act 2004 Qld Part 1 Div 2
      4. Correspondence from QCAT – 10 emails
      5. Whitsunday Marble & Granite letter
      6. Whitsunday Marble & Granite receipt
      7. Letter from Robinson Locke Litigation
      8. Solicitor email dated 23/11/17
    3. (c)
      5 February 2018: An application by Mr Stanton to admit fresh evidence:
      1. Right to information request from QBCC
      2. Email/statement from John Futer Executive Director – housing industry Association
    4. (d)
      11 April 2018: An application by Electrics Downunder to admit fresh evidence:
      1. Appeal Book appendix 53 – evidence Mr Stanton not collecting registered mail (registered mail contained appendices 11 to 44)
      2. Appeal Book appendix 54 – Bailiff Service report showing appeal book appendices 11 to 44 have been delivered
      3. Appeal book appendix 55 – submission in response to Mr Stanton’s miscellaneous matters dated 10/03/2018
      4. Appeal Book appendices 56 to 59 – intended as backup confirmation that Mr Stanton has received the documents requested
    5. (e)
      29 May 2018: An Application by Electrics Downunder :
      1. The application seeks Directions to ‘Demand an explanation from Mr Stanton for his failure to attend APL245-17 hearing on 27/04/2018’. From the grounds, it appears to be a strike out application.
    6. (f)
      11 July 2018: An application by Electrics Downunder to admit fresh evidence:
      1. Email from Gavan S Porter
      2. Amended Electrical Safety Office letter
      3. Email from Gina Stannard QBCC
      4. Updated index list for APL045-17
    7. (g)
      12 July 2018: An application by Mr Stanton to admit fresh evidence:

Stated as ‘Present new evidence to Tribunal not previously available as withheld by QBCC’.

  1. [6]
    Directions were given on 11 June 2018 in relation to the application for striking out, and the applications for leave to rely on fresh evidence. It was directed that the applications for fresh evidence would be heard and determined together with the application for leave to appeal or appeal, if the application to strike out was not successful.
  2. [7]
    These reasons deal with the application filed by Electrics Downunder on 29 May 2018 (‘the strike out application’).

The strike out application

  1. [8]
    The strike out application relates to the non-appearance by Mr Stanton at a Directions Hearing on 31 August 2017, and at the scheduled Hearing on 27 April 2018.
  2. [9]
    Mr Henry, the Director of Electrics Downunder, states the grounds of the application as follows:
    1. (1)
      Mr Stanton’s conduct falls within s 48(1)(a); s 48(1)(b); s 48(1)(d); s 48(1)(g) of the QCAT Act
    2. (2)
      Mr Stanton failed to appear at APL245-17 hearing on 27/4/18
    3. (3)
      Mr Stanton has caused an adjournment
    4. (4)
      Mr Stanton was well aware of the date and time of the hearing on 27/4/18 and has provided no explanation for his non-attendance
    5. (5)
      As Mr Stanton is the applicant for the proceeding, s 48(2) of the QCAT Act allows for the proceeding to be dismissed or struck out
    6. (6)
      Mr Stanton has had ample opportunity to argue his case in BDL231-16 by:
  1. Failing to attend Directions Hearing 1/2/17
  2. Failed to attend BDL231-16 Hearing at Mackay Magistrates Court on 24/3/17
  3. Failed to comply with QCAT Direction on 24/3/17
  4. Failed to comply with QCAT Direction dated 28/4/17
    1. (7)
      Mr Stanton has had ample opportunity to argue his case in APL245-17. He has caused delays with the decision of APL245-17 by:
  1. Failing to attend Direction Hearing on 31/8/17, and
  2. Failing to attend Leave to Appeal Hearing on 27/4/18
  1. [10]
    Directions were given on 11 June 2018 for Mr Stanton to file any submissions in response to the strike out application by 20 June 2018; and for the application to be decided on the papers after that.
  2. [11]
    Mr Stanton filed submissions on 18 June 2018.
  3. [12]
    This is the decision on the strike out application.
  4. [13]
    Section 48 of the QCAT Act provides that the Tribunal may order a proceeding to be struck out if it considers that a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding.
  5. [14]
    Electrics Downunder seeks to have the appeal struck out on the basis of Mr Staunton’s conduct in the appeal, in failing to attend a Directions Hearing on 31 August 2017.
  6. [15]
    At that Directions Hearing, a direction was given that Mr Staunton was to advise whether he intended to continue with the application by 7 September 2017, and that if he failed to do so, the application for leave to appeal or appeal may be dismissed
  7. [16]
    On 6 September 2017 Mr Staunton sent an email to the Tribunal, with a copy to Mr Henry, advising that he intended continuing with the Appeal.
  8. [17]
    Mr Staunton then took part in a subsequent Directions Hearing on 18 October 2017 by telephone.
  9. [18]
    The failure of Mr Staunton to attend the Directions Hearing on 31 August 2017 has therefore been dealt with by the subsequent directions, and this would not give rise to a basis to strike out the appeal.
  10. [19]
    Electrics Downunder alternatively seeks to have the appeal struck out on the basis of Mr Staunton’s conduct in the appeal, in failing to attend the appeal hearing on 27 April 2018.
  11. [20]
    The appeal hearing set for 27 April 2018 was to proceed on the basis that both parties were to attend by video call. A Registry memorandum made before the hearing notes that a test was conducted on 20 April 2018 and was unsuccessful for Mr Stanton, however Mr Stanton would be contactable by a mobile number.
  12. [21]
    The Tribunal was unable to make contact at the hearing time, and the hearing did not proceed.
  13. [22]
    Mr Stanton submits that he did contact the Tribunal by telephone for the hearing, but was disconnected:[1]
    1. (1)
      Noel Edward Stanton attended hearing on 27/04/18 by telephone and was placed on hold by member of court until disconnected some 23 minutes later.

Noel Edward Stanton was unable to attend by video conference as was a windy day which affected wifi reception for broadband, a problem identified by telstra (sic) several times and was told he would be called when required.

  1. (2)
    Mr Henry states phone of Noel Edward Stanton was engaged this was period of phone placed on hold by member of court on 27/04/18 approx 9.30am.
  1. [23]
    He submits that he then rang back, and was told he would be contacted when required:[2]
  1. (4)
    Noel Edward Stanton called QCAT several times on 27/04/18 and was advised would be called when required to attend.
  1. [24]
    Mr Stanton describes the basis of his appeal in the following terms:[3]
  1. (5)
    Noel Edward Stanton requests tribunal dismiss application to strike out by Electrics Downunder Pty Ltd as Noel Edward Stanton has been denied procedural fairness by QBCC regarding evidence of Shaun Keith Cook contracting Electrics Downunder Pty Ltd and being issued with infringement notices for contracting with Electrics Downunder. QBCC denied existence of evidence until day before QCAT GAR121-17 hearing on 16/05/18. Noel Edward Stanton has identified the existence of said evidence in previous applications for tribunal to stay decision which were declined. QBCC stated thru their barrister, Mr Chad Hill, this evidence was not available as the department issuing infringements was not aware of insurance claim accessed by separate department and vice versa.
  1. (6)
    Noel Edward Stanton firmly attends Electrics Downunder Pty Ltd has misled and provided false statements to tribunal to gain decision and then take legal action to force Noel Edward Stanton to pay for works which Electrics Downunder Pty Ltd performed for Mr Shaun Cook. Mr Henry even stated to QBCC that he was contracted to Mr Shaun Cook and had no contract with Noel Edward Stanton.
  1. [25]
    Mr Stanton has filed a sworn affidavit as to why he did not take part in the appeal hearing on 27 April 2018. He deposes that he did in fact ring in to the hearing, but was disconnected by the Tribunal, and then when he rang back was told to await further contact.
  2. [26]
    That evidence of Mr Stanton is not challenged, except for a suggestion in his material that Mr Henry disputes that he rang in and suggests that Mr Stanton’s telephone was engaged.
  3. [27]
    In the absence of any contrary evidence, I accept the evidence of Mr Stanton that he did make telephone contact with the Tribunal for the appeal hearing.
  4. [28]
    A question might arise as to what happened with the alternate intended video call for the hearing, but I note that the attempt to connect Mr Stanton in a test before the hearing was unsuccessful. Mr Staunton’s statement that he was unable to make contact by video conference on the day of the appeal hearing is therefore plausible.
  5. [29]
    No basis therefore arises to strike out Mr Staunton’s appeal due to the events of 27 April 2018.
  6. [30]
    Electrics Downunder has criticised the strength of Mr Staunton’s appeal in submissions it has filed in relation to the stay application. It submits that Mr Staunton’s references linking BDL231-16 and GAR121-17 are baseless as the cases are unrelated.
  7. [31]
    This matter has generated a volume of submissions from both parties, and rulings have yet to be made as to admission of fresh evidence by both parties. The best course is for the appeal to be brought on, and the Appeal Tribunal will then be able to determine what material is to be considered, and to identify what submissions are relevant.
  8. [32]
    The application made on 29 May 2018 is dismissed.

Footnotes

[1]Affidavit of Noel Stanton, filed 18 June 2018, para 1 and 2.

[2]Affidavit of Noel Stanton, filed 18 June 2018, para 4.

[3]Affidavit of Noel Stanton, filed 18 June 2018, para 5 and 6.

Close

Editorial Notes

  • Published Case Name:

    Stanton v Electrics Downunder Pty Ltd

  • Shortened Case Name:

    Stanton v Electrics Downunder Pty Ltd

  • MNC:

    [2018] QCATA 106

  • Court:

    QCATA

  • Judge(s):

    Member Paratz

  • Date:

    30 Jul 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

No judgments cited by this judgment.

Cases Citing

Case NameFull CitationFrequency
Stanton v Electrics Downunder Pty Ltd [2019] QCAT 1581 citation
1

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