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- Unreported Judgment
Laporte v Bottoms English Lawyers Pty Ltd QCATA 21
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Laporte v Bottoms English Lawyers Pty Ltd  QCATA 21
BOTTOMS ENGLISH LAWYERS PTY LTD
ORIGINATING APPLICATION NO/S:
25 January 2019
7 December 2018
The application for leave to appeal or appeal is refused.
APPEAL – MINOR CIVIL DISPUTE – where applicant failed to appear at time and place notified for hearing – whether explanation satisfactory or adequate – whether proceeding ex parte was procedurally fair in all the circumstances.
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 28, 92, 93
Aon Risk Services Australia Ltd v ANU (2009) 239 CLR 175
Creek v Raine & Horne Real Estate Mossman  QCATA 226
House v The King (1936) 55 CLR 499
Kelsey Leahy for Bottoms English Lawyers Pty Ltd
REASONS FOR DECISION
- The minor debt claim in issue was for unpaid legal fees of $1894.66. The tribunal in Cairns ordered the applicant to pay that amount in default of appearance.
- Although an unreviewable application to reopen the proceeding was refused on 21 August 2018 the default judgment itself is still open to correction, with leave, if necessary.
- An applicant for leave to appeal a discretionary judgment has the onus of demonstrating arguable error such as irrationality, irrelevancy or other vitiating mistake of the kind identified in House v The King.  Not every party (even a blameless one) disadvantaged by a tribunal decision is automatically (or always) entitled to appellate relief e.g. where he or she has not met the obligation to act in his or her own best interests or the decision is not substantially unjust. The mere fact that a differently constituted tribunal might have done the opposite on the same facts is not a reason for granting redress.
- The proposed appeal is on the ground that the payment order was made “…without me being able to represent myself” or, put another way, it was unfair for the tribunal proceed to judgment in the applicant’s absence instead of taking some other less drastic measure such as an adjournment.
- The respondent opposes leave on the basis that no error is demonstrated and by failing to appear for a tribunal hearing in connection with the same dispute proceeding not only once but twice the applicant has disqualified herself from being entitled to any more procedural concessions.
- Tax invoice 53521 (the bill) in the sum of $2100.95 for professional work (to negotiate a property settlement) under a costs agreement was given to the applicant on about 21 April 2017. The bill includes DV related items charged between 9 March 2017 and 20 April 2017.
- The applicant contends the DV charges are out of scope and if it was done, if at all, after she emailed on 10 March 2017 (after being billed $784.80 on 6 March 2017) withdrawing instructions after she realised the respondent was “just milking her for money” and “busy doing nothing”. However, to “do the right thing” she paid $400 on 12 June 2017 but denies legal liability for the balance.
- She complains that she has already over-paid the respondent $2349.00 and describes the bill as a “load of waffling”. She concedes still wanting an email (that had already been drafted and paid for) sent to her “ex’s solicitor” but due to lack of diligence on the respondent’s part it was delayed for three weeks and had to be updated.
- The minor debt application was filed on 31 August 2017. A response requesting the matter be dropped for overbilling was belatedly filed and accepted on 9 October 2017.
- The matter was set down for hearing at 2:15pm on 13 August 2018 after mediation failed.
- The case was called on at 2:21pm. The applicant did not appear and was not seen in the precincts. The respondent confirms her name was called by the tribunal’s hearing officer but not responded to.
- The applicant claims to have arrived at 1:55pm but because she was misdirected by security to a daily law list that did not mention her name she panicked and without any staff to help her was unable to find the courtroom in her confusion until too late.
- The applicant says that if her name was called she didn’t hear it and must have been between floors. She asserts a good defence to the claim and is “desperate” to be heard.
- After satisfying itself that there was proof of service and a prima facie case of both payment breach and quantum issues. The tribunal made the order in question at 2:20pm.
- The tribunal must act fairly observe the rules of natural justice in conducting hearings. Failure to do so is an error of law. It is also required to take all reasonable steps to ensure the parties know about tribunal events and understand its procedures. Subject to meeting these requirements the tribunal has power to regulate its procedures under s 28 Queensland Civil and Administrative Tribunal Act 2009 (Qld).
- The statutory right to have an opportunity to be heard is adequately observed from the laws point of view by notice of the correct time and place of the hearing. The tribunal is not necessarily obliged to be satisfied a non-appearing party given proper notice cannot be found after reasonable inquiry. Such an applicant cannot legitimately complain where the failure to attend was not due to lack of notice but her own mistake and it is not in the overall interests of tribunal justice to overturn a regular decision out of sympathy as opposed to error.
- All the preconditions to recovery were met including proper documentation and adequate notice.
- The tribunal took a fair and common sense approach to the situation consistently with the stated objects and competing interests of administering summary justice. It “heard and determined” the dispute ex parte only after taking adequate steps to give practical expression to her right to a reasonable opportunity to be heard on the merits and that
there was enough credible material to decide the case in the absence of the applicant and was entitled to proceed rather than adjourn without any discretionary error.
- When considering whether a non-appearing party should be given another chance to defend on the merits the appeal tribunal has to reconcile the rival public interests of legality, on one hand, and finality, on the other.
- Relevant factors in addition to whether any legal or discretionary preconditions “to hear and decide” the dispute ex parte were fulfilled and the correct law applied include:
- the explanation for non-attendance,
- the assessed viability of the defence,
- the amount at stake,
- subsequent events and
- undue prejudice to the respondent including financial.
- I am not reasonably satisfied of the credibility of the applicant’s excuse. While she told me that she was lost in the courthouse looking for the hearing room for more than half an hour her arrival time is categorically stated in Part C of Form 43 filed in support of reopening as 20 minutes later at “2:15”, that is, the same time the hearing was set to start allowing no time to spare. I infer from this discrepancy that the applicant was dilatory and failed to act reasonably in protecting her own litigation interests. The offered explanation for non-attendance provides an inadequate and unreliable forensic basis for a finding that there was an unfair denial of the right to an opportunity to be heard.
- I also have serious doubts about the legality and forensic viability of the asserted justification for non-payment.
- Overall, the time and cost of reconsidering the matter is not reasonably justified.
- Leave to appeal the s 93 decision is refused.
 (1936) 55 CLR 499.
Aon Risk Services Australia Ltd v ANU (2009) 239 CLR 175, 217; Creek v Raine & Horne Real Estate Mossman  QCATA 226 at .
 Whether charging under the terms of a formal costs agreement or not a law practice has to wait for at least 30 days after service of a signed (and if requested itemised) bill and notification of the options open to the client to dispute liability before starting proceedings to recover unpaid legal costs.
See QCAT Act ss 92, 93(1)(a).
 cf QCAT ACT s 93(1)(b).
- Published Case Name:
Louise Laporte v Bottoms English Lawyers Pty Ltd
- Shortened Case Name:
Laporte v Bottoms English Lawyers Pty Ltd
 QCATA 21
25 Jan 2019