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- Unreported Judgment
Pead v Chambers QCATA 160
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Pead v Chambers & Anor  QCATA 160
THE BODY CORPORATE FOR OUTRIGGER SUITES CTS 32195
1 October 2019
On the papers
Senior Member Howard
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE TRIAL MATTERS – where applications filed to have appeal proceedings struck out for non-compliance with directions – where filing and serving of documents one day late – whether the applicant has identified an alleged error of law in the submissions filed – whether applications to strike out should be granted
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 47, s 48, s 48(2), s 48(3)
Peace and Good Behaviour Act 1982 (Qld)
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
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
- Ms Pead and Ms Chambers are lot owners of Outrigger Suites CTS 32195 (‘the Scheme’). The Scheme comprises of several residential lots as well as a commercial lot.
- Ms Chambers made an application to the BCCM Commissioner (BCCM0215-2018) after she discovered that, in previous meeting minutes, there were five resolutions passed which allowed Body Corporate funds to be used to pay the legal fees of the Applicant and two other lot owners. The legal fees were associated with defending proceedings under the Peace and Good Behaviour Act 1982 (Qld), which had been initiated by the owner of the commercial lot against lots owners including Ms Pead.
- The BCCM Adjudicator found that the committee resolutions passed in favour of paying the legal defence costs of Ms Pead and the two other lot owners were void and that she and the two other lot owners had to repay the Body Corporate the full amount of the monies paid to OMB Lawyers, totalling approximately $15,257.77.
- Ms Pead has filed an appeal in the appeal tribunal against the decision of the BCCM Adjudicator.
- Ms Chambers and the Body Corporate for Outrigger Suites CTS 32195 (‘the Body Corporate’) each filed an application for miscellaneous matters seeking to have the appeal proceedings struck out or dismissed. The Body Corporate’s application was filed shortly after Ms Chambers’ application and is in very similar terms, and attaches a copy of Ms Chambers’ submissions. The submissions of each in support of the applications for strike out refer to Ms Pead not having complied with the Appeal Tribunal’s directions to serve documents by the date directed; having failed to identify an error of law in her appeal grounds and not referring to any case law relied upon.
- I refused the applications for miscellaneous matters and listed the matter for a directions hearing. Reasons for my decision have been requested and are now provided.
Strike out applications for non-compliance under the QCAT Act
- The tribunal has power to strike out or dismiss an application at an early stage, rather than allowing it to proceed to hearing. The circumstances in which such orders may be made are provided for in s 47 and s 48 of the QCAT Act,
- Relevantly here, the Tribunal has the power to dismiss or strike out proceedings under s 48 of the QCAT Act where a party acts in a way that unnecessarily disadvantages another party. In particular, 48 of the QCAT Act provides:
(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…
(2) The tribunal may –
- (a)if the party causing disadvantage is the applicant for the proceeding, order the proceeding be dismissed or struck out…
- Section 48(3) sets out matters the tribunal must consider in acting under s 48(2). These are:
- (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.
Should the appeal be struck out or proceed to hearing?
- The application is made in reliance upon directions dated 14 May 2019. In particular, direction 7 was in the following terms:
“Jill Pead must –
- (a)provide a copy of the Appeal Book, at her own expense, to Sandra Chambers, The Body Corporate for Outrigger Suites CTS 32195 and any party joined in accordance with direction 4;
- (b)file in the Tribunal three (3) copies and give to Sandra Chambers, The Body Corporate for Outrigger Suites CTS 32195 and any party joined in accordance with Direction 4 one (1) copy of all submissions as to the alleged error of law, including any cases relied upon in support of the application for appeal, by:
4:00pm on 24 July 2019.”
- As identified earlier, Ms Chambers and the Body Corporate both submit that Ms Pead’s non-compliance with direction 7(b) is twofold. Firstly, they did not receive a copy of the document as directed by 4pm on 24 July 2019. Secondly, that Ms Pead ‘completely ignored the QCAT directive for a copy of the alleged error of law, including any cases relied upon in support of the application for appeal.’
- The tribunal file reveals that on 25 July 2019, Ms Pead filed a bundle of documents entitled ‘Applicant Appeal Book’. Her submissions on the appeal are included in the bundle. Ms Pead’s grounds of appeal are stated to include a denial of natural justice; and that the adjudicator made findings of fact that are not supported by the evidence.
- Ms Chambers and the Body Corporate complain that they were not given a copy of the documents by 24 July, 2019. Ms Chambers nor the Body Corporate state directly whether a copy of the documents was later received by them. However, the second complaint relating to the content of the submission filed, that is, that it does not refer to an alleged error law, including any cases relied upon, confirms by inference, that they did each receive the documents (at some time prior to filing their strike out applications on 2 and 12 August 2019, respectively) and that they each consider the content does not comply with the relevant direction.
- Ms Pead filed submissions in response. She states that she posted a copy of the documents by express post to Ms Chambers and QCAT. Although she states that she did so on 23 August 2019, this appears to be a typographical error as she attaches a copy of the Express Post receipt for items sent to Sandra Chambers and QCAT dated 23 July 2019. She also says that she posted a copy to the Body Corporate c/- the Body Corporate Manager. The receipt provided provided suggests this was also done on 23 July 2019.
- It is reasonable to conclude in the circumstances, and I do, that although a copy of documents was not provided by 24 July 2019, it was provided shortly thereafter. If received when the tribunal received its copy, both Ms Chambers and the Body Corporate had copies on 25 July 2019 or very shortly thereafter.
- I turn to Ms Pead’s alleged failure to identify alleged error/s of law and/or case law relied upon. Ms Pead’s submissions state that the appeal is based upon a denial of natural justice and that findings of fact were made that are unsupportable by the evidence. If either is established on appeal, it would constitute an error of law. Without commenting upon the strength of them, the arguments that follow appear to be made in support of the latter argument rather than a denial of natural justice. In her submissions on the strike out application, Ms Pead reiterates the alleged error in brief and submits that her failure to refer to any case law is not adequate grounds for striking out her appeal.
- I accept Ms Pead’s submission to this effect. She has provided submissions about the alleged errors of law. She does not appear to rely upon any case law in her appeal and was therefore not obliged to refer to any.
- The non-compliance with directions established is a very brief delay in filing and serving of the documents. Ms Pead acts on her own behalf. There is no evidence which suggests that Ms Pead is familiar with tribunal practices and procedures, or that she deliberately attempted to disadvantage any other party. Although parties should, of course, comply with the appeal tribunal’s directions, nothing turned upon the very brief delay in providing a copy, it seems of one, or at most several days, after the date for compliance. I am satisfied that Ms Pead took reasonable steps to comply with the Appeal Tribunal’s directions. In any event, there is no disadvantage caused in the proceeding to Ms Chambers or the Body Corporate as a consequence of the very brief delay identified.
- I find that there is no proper basis upon which to strike out the appeal for non-compliance with the directions. The application for strike out should be refused.
- Therefore, I order that:
- The applications for miscellaneous matters seeking orders dismissing the proceedings are refused.
- The matter is listed for a Directions Hearing in Brisbane at 11:30am on 20 November 2019.
- Published Case Name:
Pead v Chambers & Anor
- Shortened Case Name:
Pead v Chambers
 QCATA 160
Senior Member Howard
01 Oct 2019