Property Three Pty Ltd v Kallar
[2018] QCATA 127
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- Unreported Judgment
- Property Three Pty Ltd v Kallar[2018] QCATA 127
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Property Three Pty Ltd v Kallar[2018] QCATA 127
Property Three Pty Ltd v Kallar[2018] QCATA 127
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Property Three Pty Ltd v Kallar & Anor [2018] QCATA 127 |
PARTIES: | PROPERTY THREE PTY LTD (appellant) |
v | |
BAIRAJ KAUR KALLAR and DAVINDER SINGH KALLAR (respondents) | |
APPLICATION NO | APL394-17 |
ORIGINATING APPLICATION NO/S: | MCDT836-17 (Brisbane) |
MATTER TYPE: | Appeals |
DELIVERED ON: | 4 September 2018 |
HEARING DATE: | 2 September 2018 |
HEARD AT: | Brisbane |
DECISION OF: | Dr J R Forbes, Member |
ORDERS: | Leave to appeal is granted. The appeal is allowed. The decision of the primary tribunal is set aside. A hearing on the merits may proceed on a date to be fixed, before a tribunal differently constituted. |
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – discretionary decision to strike out claim – non-compliance with procedural order – whether discretion miscarried – whether material considerations taken into account – appeal allowed Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 48, s 49, Schedule 3 Crawford v Commissioner of State Revenue [2014] QCAT 418 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 House v The King (1936) 55 CLR 499 Minister for Home and Territories v Teesdale Smith (1924) 35 CLR 120 Spellson v George & Ors (1992) 26 NSWLR 666 Willoughby v Clayton Utz (No 2) (2009) 40 WAR 98 |
The 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]The appellant’s action has been struck out on procedural grounds and the appellant now asks that it be revived.
- [2]This appeal cannot be treated as an application for reopening. One disqualifying reason, apart from others, is that it is not a case of non-appearance by the party seeking relief.[1] The appellant did appear at the hearing; the respondents were the absent parties for a reason considered below.
- [3]At material times the respondents were tenants of premises at Yeronga, for which the appellant was the landlord’s letting agent.
- [4]In March 2017 the appellant instituted these proceedings, claiming that, due to an accounting error, the respondents were mistakenly credited with an amount of $1,720 to which they were not entitled. For present purposes it is unnecessary to express any opinion on the substantive merits of the claim, and I do not do so.
- [5]Service of the originating process[2] was hampered for want of the respondents’ current address. On 9 May 2017 the tribunal made an order for substituted service in these terms:
(2)(a) Substituted service on the respondent [sic] is granted. Substituted service shall be effected in the following manner:- (i) by forwarding a copy of the application and notice of hearing,[3] as the case may be, by email to [a specified email address] (ii) Service on the respondent [sic] shall be deemed effected three days after the email in order 2(a)(i) has been sent.
- [6]An original hearing date of 26 June 2017 was adjourned to 15 September 2017, and subsequently to 29 November 2017.
- [7]On 26 June 2017 the tribunal ordered:
Within 14 days of this order, each party shall file with the tribunal and serve on the other party, a copy of all documents (including numbered photographs and all other documents of whatsoever kind or nature) in their possession or power, that are relevant to the matter, or which are intended to be relied upon at the hearing of the application.
- [8]On 15 September 2017 the following order was made:
The tribunal orders the Applicant [appellant] to send to the Respondent by email with attached claim application along with any other documentation that is to be relied upon, within 10 working days. The Applicant is to also email the Respondent the hearing notice within 3 days upon receipt of this notice.[4]
- [9]The appellant emailed all the material described in the latter order to the respondents on 22 September 2017, excepting a copy of the notice of hearing on 29 November 2017.
- [10]On 29 November 2017 the matter came on for hearing before Justices of the Peace, Messrs Chan and Stackpoole. The appellant was represented by its Finance and Administration Manager, Ms Roth. Ms Roth was the person who mainly, though not exclusively, handled pre-trial affairs on the appellant’s behalf.
- [11]The respondents did not attend the hearing.
- [12]Questioned by the tribunal, Ms Roth admitted that, although she emailed to the respondents all the applicant’s material covered by the order of 15 September 2017, with the sole, albeit crucial, exception of the notice of trial on 29 November.[5] She explained that she was not present at the previous hearing of the matter[6] and explained:
Well, it was just my oversight, because I got the notice of hearing and I should have looked at that where it said that I need to forward [the notice of hearing] to the respondent within 3 days and I failed to that[7] ... I do apologise. It was just an oversight on my part ... I sent all of the [other] documentation required, but had I read that – it was my fault I didn’t, but had it said on the notice [of trial] I received, you know, just sort of reminded me to send it on, I would have done it, but, you know – it was things happening. I just overlooked that[8]. ... How about you give us one more chance? I’m sure, you know, we’ll get it right the next time.[9]
- [13]The tribunal was irritated at the prospect of another adjournment:
I mean, the matter at the end of the day is that I think we can only adjourn so much before it becomes really quite ridiculous. ... It’s just really unreasonable and just becoming ridiculous.[10]
- [14]The presiding justices proceeded to dismiss, or strike out the applicant’s action, even suggesting that Ms Roth’s oversight was akin to contempt of court.[11]
- [15]The present question is whether the summary dismissal of the appellant’s claim was an appropriate exercise of discretion.
- [16]There can be no suggestion that the omission to forward the notice of hearing was deliberate or defiant, and the tribunal made no such inference. In every other respect the orders of 15 September 2017 were obeyed. Nor can it be suggested that the previous adjournments were caused by the appellant’s failure to comply with earlier procedural orders. The orders of 9 May 2017 related to substituted service. The orders of 26 June 2017 did not explicitly mention the notice of hearing.
- [17]None of the pre-trial orders (5 May, 26 June and 15 September 2017) was self-executing. In other words, none included a warning that non-compliance might expose the appellant to summary judgment. Contrast the later order of 17 April 2018, relating to the application for leave to appeal:
If Property Three Pty Ltd does not comply with direction one of the directions herein, the application ... may be dismissed without further notice to the parties.
- [18]There is nothing to suggest that the appellant had anything to gain by seeking unnecessary adjournments. No disadvantage to the respondents resulted from the inadvertent failure to serve the notice of trial.[12] Indeed, in so far as they have shown interest in the proceedings, the postponement of the hearing has postponed any `evil day’ so far as they are concerned. Their role in these proceedings is decidedly passive. They have produced nothing in response to the original claim, or the current appeal.
- [19]It must be steadily borne in mind that appellant was not legally represented in the primary proceedings. That being so, it is important to note the caveats set out in section 48(3) of the QCAT Act. In exercising its discretion to strike out a claim, the tribunal must have regard to `the extent to which the party causing the disadvantage is familiar with the tribunal’s practices and procedures’.[13] On this point, I have noted that the order of 15 September 2017 is not framed as a self-executing command.
- [20]Section 48 also counsels the tribunal to consider, even where disadvantage is involved, whether the non-complying party has acted deliberately.[14] There is not a skerrick of evidence that the appellant acted in that way, and there is no reason to doubt Ms Roth’s assurances that the default was a mere oversight, or the sincerity of her repeated apologies.
- [21]It is always a very serious step to deprive a party of a cause of action without a hearing on the merits, and `extreme care’ must be taken before doing so.[15] It is scarcely sufficient to tell the rejected one that dismissals that are not on the merits leave the cause of action intact[16], and that he or she may start anew, subject to the statute of limitations, and the permission of the President or Deputy President of the tribunal.[17]
- [22]The decision to strike out a cause of action for procedural non-compliance is a discretionary judgment. A discretion miscarries if the court or tribunal judge `acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, [or] if he does not take into account some material consideration’.[18]
- [23]If the tribunal did not err in principle by treating a mere oversight of a procedural requirement as so reprehensible as to justify summary termination without regard to the merits[19], it did err in law, in my respectful opinion, in failing to take account of several material considerations described above, and, in particular by taking no, or no sufficient account of the mitigating factors set out in subsection 48(3). Leave to appeal should be granted, the appeal allowed and the decision of the primary tribunal set aside. If the appellant proceeds with its claim, the hearing should take place before a tribunal differently constituted.
ORDERS
- [24]Leave to appeal is granted.
- [25]The appeal is allowed.
- [26]The decision of the primary tribunal is set aside.
- [27]The hearing on the merits may proceed, on a date to be fixed, before a tribunal differently constituted.
Footnotes
[1]See the definition of “reopening ground” (item (a)) in the QCAT Act Schedule 3; Crawford v Commissioner of State Revenue [2014] QCAT 418.
[2]I.e. Application for minor civil dispute – residential tenancy dispute filed 24 March 2017.
[3]Emphasis added.
[4]Emphasis added.
[5]Transcript of hearing 29 November 2017 (“T) page 4 lines 1 and 33; page 5 lines 9-11.
[6]T page 5 line 20.
[7]T page 5 lines 9-11.
[8]T page 5 lines 39-43 (Roth).
[9]T page 6 lines 6-7 (Roth).
[10]T page 5 lines 23-25; page 6 line 41 (Chan JP).
[11]T page 8 line 47 (Chan JP)
[12]See QCAT Act s 48(1).
[13]QCAT Act s 48(3)(a).
[14]Section 48(3)(c).
[15]Spellson v George & Ors (1992) 26 NSWLR 666 at 678; Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99.
[16]Minister for Home and Territories v Teesdale Smith (1924) 35 CLR 120; Willoughby v Clayton Utz (No 2) (2009) 40 WAR 98 at [30].
[17]QCAT Act s 49.
[18]House v The King (1936) 55 CLR 499 at 504.
[19]Crawford v Commissioner of State Revenue 2014] QCAT 418 at [13].