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Foley v Baxter QCATA 48
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Foley v Baxter  QCATA 48
ORIGINATING APPLICATION NO/S:
Other minor civil dispute matters
3 April 2019
19 October 2018
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – where the applicant made a claim for monies loaned to a person he was in a romantic relationship with – where the respondent alleged the payment was an investment in a company – where an Adjudicator refused to grant a reopening– whether strict compliance with the rules was required – whether time should be extended for filing an application for leave to appeal - whether substantial injustice was caused to the respondent
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 61(1)(c), Division 7, Schedule 3
Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 3, r 93
Charoentanakorn v Bain  QCATA 7
Law v Thornley  QCATA 114
Shearer v Hogg  QCATA 196
Winn v Boss Lawyers Pty Ltd  QCAT 356
APPEARANCES & REPRESENTATION:
REASONS FOR DECISION
- Mr Baxter obtained an order against Ms Foley in the Tribunal on 23 May 2017 that she pay the sum of $15,350 to him within seven days.
- Ms Foley made applications to have time extended, and to reopen the matter, on 6 February 2018. The Tribunal made a decision on 7 February 2018 refusing the applications.
- Ms Foley filed an Application for leave to appeal or appeal against those refusals on 7 March 2018; and an Application for an extension of time to file the application for leave to appeal or appeal on 5 July 2018.
- The applications were heard at an oral hearing on 19 October 2018. This is the decision in those applications.
History of the matter
- In April 2016, Ms Foley and Mr Baxter were in a personal relationship. On 8 April 2016, Mr Baxter handed $15,000 in cash to Ms Foley, which he had withdrawn from his credit cards.
- Mr Baxter says that he gave the money to Ms Foley as a personal loan, because she told him that she urgently needed money to pay staff that day, and that she would repay him on the following Tuesday when a payment came through to her.
- The $15,000 was deposited to the bank account operated by a company associated with Ms Foley on 8 April 2016. The company was Energy Compared Pty Ltd. Ms Foley says the money was an investment by Mr Baxter in the company.
- Mr Baxter sent a letter of demand on 6 June 2016 to Ms Foley seeking repayment of the money.
- Liquidators were appointed to the company which received the money, and it was wound up on 14 September 2016.
- Mr Baxter filed an application for Minor Civil Dispute (‘MCD’) in the Tribunal for the amount of $15,350 on 20 June 2016, claiming the amount as a debt owing by Ms Foley to him. The claim was made up of an amount owing of $15,000, plus the following fee of $305, plus a service fee of $45.
- Mr Baxter filed a ‘Request for decision by default – minor civil dispute – minor debt’ on 19 August 2016. Personal service had not been effected of the MCD application, and an Adjudicator made an order on 29 August 2016 for substituted service.
- Ms Foley filed an application on 30 August 2016 seeking to dismiss/strike out the MCD application. The grounds of her application were:
- (a)There was no service of paperwork;
- (b)There is no proof of debt;
- (c)This was a de facto relationship.
- Ms Foley also sought a direction for Mr Baxter to produce loan documentation in that application, and stated the reasons she sought those directions were:
I have previously asked for proof and receive nothing. This was a long-term relationship and no loan document exist to my knowledge. I have also offered to attend mediation to sort out any domestic issues which have been ignored.
- An order was made by the Tribunal on 9 September 2016 refusing Ms Foley’s application for dismissal of the Minor Debt Claim.
- Mr Baxter then filed a further ‘Request for decision by default – minor civil dispute – minor debt’ on 24 October 2016, accompanied by a supporting affidavit.
- The Tribunal made an order on 31 October 2016 as to service, and as to the listing of the MCD application for hearing. The matter was first set for hearing on 10 January 2017, the notice of hearing was sent to an old address from Ms Foley, and the hearing was relisted to 3 March 2017.
- Ms Foley filed an application for miscellaneous matters on 1 March 2017 seeking an adjournment of the hearing. She gave the reasons she was seeking an adjournment as being due to her medical condition:
I have a serious ongoing medical condition and am still very ill and unable to deal physically or mentally with this. The applicant is my ex and I cannot be with him for my safety but also because my illness prevents it.
- A medical certificate was attached to Application for adjournment from Dr Peter Bai from the Stafford Medical Centre and Skin Cancer Clinic which read as follows:
This is to certify that I examined Miss Michelle E Foley today, who is unfit for work from 01/03/2017 to 01/04/2017, inclusive
This certificate was written on 01/03/2017
- The application for an adjournment was heard on 3 March 2017, and was granted. The hearing was adjourned to a date to be fixed. The hearing was then listed for 23 May 2017.
- Ms Foley filed a further application for miscellaneous matters dated 21 May 2017 seeking an adjournment of the hearing, and to dismiss or strike out the application. She gave the reason that she was seeking an adjournment as:
I am still too ill to be able to attend this and seek adjournment.
I have a serious ongoing medical condition and am still very ill and unable to deal physically or mentally with this. The applicant is my ex and I can’t be with him for my safety but also because my illness prevents it.
She gave the reason that she was seeking to dismiss or strike out the application as:
This is simply a payback from an ex. There is no loan nor ever was. Also the applicant states it was to pay wages with the business concerned is now in receivership so you cannot then make this a personal debt this is purely to make me face him when I do not feel safe doing. I do not owe the applicant any money. I’m simply too sick on all the stresses making it far worse.
- A further medical certificate was attached to an Application for adjournment from Dr Peter Bai from the Stafford Medical Centre and Skin Cancer Clinic which read as follows:
This is to certify that I examined Miss Michelle E Foley today, who is unfit for work from 22/05/2017 to 22/07/2017, inclusive
This certificate was written on 27/05/2017
- The application was heard in the Tribunal at Southport on 23 May 2017 before an Adjudicator, in her absence.
- The decision of the Adjudicator is recorded in the transcript of proceedings of 23 May 2017 as follows:
There has been an application that this matter be either dismissed or adjourned, because Ms Foley is ill; it has been adjourned, apparently, on three previous occasions. The matter is not going to be adjourned; the application was only received today at about 11 am. She says she had a medical certificate, but it – overall, it would not make any difference to this matter. I have heard evidence today, given by Mr Baxter, that he – and I accept his evidence as being true and correct – that he and Ms Foley did not live together, but they lived – she lived in the Valley and he lived in Beenleigh – that they saw each other upon a romantic basis for a period of some six months, and, towards the end of that six months, on the 8th day of April, there was a request by Ms Foley, to lend money to her, Mr Foley believes, the payment of her staff on Friday afternoon, which was to be repaid on the Tuesday after; I accept that.
I’ve seen evidence in my file of the money being drawn down from credit cards at the Bank of Queensland and Westpac, and I accept the evidence that that money was given to Ms Foley at the Merthyr Village – Merthyr Shopping Village, when she then deposited that cash into her account and did whatever she did with it. Whatever the case is, she has not repaid those funds. I am satisfied it was a loan; it was not part of any other relationship, it was a specific loan. I have seen the documentation which reflects that; I have seen an early demand, made in writing, by Mr Baxter, for the repayment of the money, and it has not been repaid. I make an order that the respondent, Michelle Foley, pay to the applicant the sum of $15,350 within seven days.
- Ms Foley then filed an ‘application to set aside or amend a default decision’ on 3 August 2017.
- A medical report from Dr Reza Adib, a general and laparoscopy gastrointestinal surgeon, dated 17 July 2017, was attached to the application. The report listed a number of medical conditions of Ms Foley and proposed surgery.
- The Tribunal made an order on 30 August 2017 refusing that application.
- Ms Foley swore an affidavit on 15 December 2017 which was filed in bankruptcy proceedings against her in the Federal Circuit Court of Australia. In that affidavit she stated that she denied that she owed any money to Thomas Baxter; denied that Thomas Baxter loaned her $15,000 as alleged in the QCAT claim; and stated that the company received $15,000 into its bank account on 8 April 2016. She does not state any reason in the Affidavit why money was received by the company from Mr Baxter.
- An Application for reopening, and an application to extend the time limit to do so, was then filed by Ms Foley on 6 February 2018.
- The Tribunal made an order on 7 February 2018 refusing the applications to extend time, and to reopen the decision. This Application for leave to appeal or appeal is against those orders.
Grounds of appeal
- The grounds of appeal in the application for leave to appeal or appeal are as follows:
- The Tribunal erred in refusing the application filed on 6 February 2018 to extend the time period to file an application to reopen proceedings 129/16 (‘the proceedings‘) on the basis that there has been a denial of natural justice and/or procedural fairness;
- The Tribunal has erred in not allowing the applicant at least 7 days after the application to reopen the proceedings to make written submissions;
- The tribunal erred in refusing the application filed on 21 May 2017 for an adjournment of the hearing on 23 May 2017 on the basis that:-
- There has been a denial of natural justice and/or procedural fairness;
- The Tribunal erred in failing to give due consideration, or alternatively by failing to take into account relevant factor, the:-
- applicant’s inability to attend the hearing due to her medical conditions and the medical certificate issued by Dr Peter Bai;
- applicant was fearful for her safety as the respondent was her ex-partner and she did not wish to confront him.
- See attached document for further information in respect of the grounds for appeal.
- Upon being provided with the written reasons in respect of the decision made on 7 February 2018, the applicant may be in a position to provide further grounds of appeal.
Submissions for Ms Foley
- Ms Foley did not attend the appeal hearing in person. Her solicitor advised that she was in hospital that day and was fatigued.
- It was submitted that the medical certificate provided at the MCD hearing was a ‘pro-forma’ certificate, and that Ms Foley had assumed that the hearing would be adjourned, and therefore did not attend.
- It was not disputed that $15,000 in cash was given to Ms Foley by Mr Baxter, and that Ms Foley had made the deposit into the bank.
- It was submitted that Mr Baxter had been involved in the management of the company, that the payment was an investment in the company by an oral agreement; and that there was no agreement to pay the money back, as Mr Baxter was to invest in the company and receive profits back.
- It was submitted that Ms Foley had a reasonable defence on the merits to the claim.
- It was advised that the decision of the Tribunal had been registered in the Magistrates Court; that payment had not been made; and that bankruptcy proceedings were on foot against Ms Foley in the Federal Court of Australia, which had been adjourned pending the resolution of this appeal.
Submissions of Mr Baxter
- Mr Baxter denied that the payment of $15,000 was an investment by him in the company, and said that he had no involvement with the company, and had never worked in the office, or done any of its book-keeping.
- Mr Baxter deposed to an incident on 28 April 2016, when Ms Foley had told him about considerable debts she owed on loans from friends and family, on other loans and credit cards, on overdue payments on her office rent, and on overdue rent for herself and her daughter. He said that he decided then that he could not trust her, and decided to end the relationship. He subsequently sent a letter of demand, and then filed the MCD application.
- An outline of submissions was filed on behalf of Ms Foley together with the Application for leave to appeal or appeal. The submissions address the matters to be taken into consideration in granting leave to appeal as follows:
- Is there a reasonably arguable case of error in the primary decision?
- Is there a reasonable prospect that the application will obtain substantive relief?
- Is leave necessary to correct a substantial injustice caused by some error?
- Is there a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage?
- There are significant considerations in relation to the conduct of this matter by Ms Foley, and her non-attendance:
- (a)Ms Foley has not attended any of the hearings in person in the Tribunal at first instance, or at the Appeal hearing.
- (b)She has not applied to attend any of the hearings by telephone, or given any cogent reason as to why she would be unable to participate by telephone.
- (c)The medical certificate provided in seeking an adjournment to each of the two Tribunal hearings did not make any reference to a Tribunal proceeding at all. Each certificate, which was in a standard wording, merely referred to an inability by her to work. Those certificates on their face do not provide any cogent reason why Ms Foley would have been unable to attend and take part in a Tribunal hearing.
- (d)The report of Dr Adib, the surgeon, does not make any reference to the Tribunal proceedings, or to the ability of Ms Foley to participate in them, either personally or by telephone.
- Ms Foley was aware of the Tribunal hearing on 23 May 2017, at which judgement was given against her. Her submission is that she assumed that the hearing would be adjourned, as the previous hearing had been adjourned on the basis of the same type of medical certificate.
- A Tribunal will make every endeavour to accommodate a party who raises an issue as to a medical inability to attend a hearing, and will often give a party an additional opportunity to appear, but there are limits to the accommodation extended by the Tribunal.
- In Winn v Boss Lawyers Pty Ltd, Justice Carmody considered the situation of a barrister who did not appear in disciplinary proceedings, and noted her record of attendance as follows:
- The applicant did not turn up for hearing set for 3 May 2017 and has not since explained her inability to attend the resumption of the hearing that was partly heard on 29 March 2017. Two days before the postponed hearing resumed she advised that a hospital appointment had been booked for the day before the hearing date and produced an elliptical GP’s certificate dated 8 August 2017 (a fortnight after the 30 August date was fixed) to the effect that should would be unfit for court until 14 September 2017 (14 days after the 30 August 2017).
- Neither the specific reason for the applicant’s unfitness nor her symptoms or prescribed treatment were referred to. The only available inference is that her medical condition involved undergoing a biopsy for skin cancer.
- Justice Carmody went on to say that he would give her ‘one more chance to appear’, but would not tolerate any more laxity or tardiness:
- However, I am reluctant to dismiss a claim out of hand without giving her one more chance to appear and present her case as best she can including in particular finalising credit based cross-examination likely to have an important influence on my decision about the merits of the dramatically conflicting contentions of the parties.
- The tribunal will not tolerate any more laxity or tardiness. Last-minute unsubstantiated attempts to vacate or put off another hearing date will not be well received and risks dismissal with costs.
- In this matter, the Tribunal allowed one adjournment on the basis of a vague medical certificate, but refused a further adjournment on the basis of a similar medical certificate. That refusal accords with the approach referred to by Justice Carmody.
- The history of the matter indicates that Ms Foley has attempted to put the proceedings off at each opportunity, and has sought to indefinitely extend the proceedings. She has made broad allegations as to having medical conditions, but has provided no evidence as to how those conditions affected her ability to defend the proceedings. She has not provided any reports as to the effect of her medical conditions on her ability to participate in the proceedings.
- Ms Foley has not provided any explanation in the proceeding, either at first instance or in these appeal proceedings, as to why Mr Baxter would pay $15,000 to the company. It is not credible that he would make an investment in the company without any written or oral agreement evidencing the basis upon which he would do so.
- Ms Foley has not provided any evidence of any type supporting her allegation that Mr Baxter gave her the money as an investment in the company, other than her own contentions.
- Mr Baxter says that he made the payment to Ms Foley on a personal basis because she urgently requested him to do so, as she was in a tight financial situation as some money had not come through to her, that she needed the money that day, and that she would repay him in a couple of days.
- There is no suggestion by either party that the money was requested by Ms Foley as a gift, or given to her as a gift by Mr Baxter.
- Given that Mr Baxter and Ms Foley were in a close personal relationship at that time, it is credible that he would provide her with a loan of money on a short term basis, as requested.
- Ms Foley has shown no realistic prospects of success in defending the claim of Mr Baxter.
- In the outline of submissions, it is raised on behalf of Ms Foley that an error was made in the primary decision by deciding the application for reopening the day after it was filed, without allowing Ms Foley seven days to file submissions. Reference is made to Rule 93 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) which provides as follows:
- This rule applies if a party to a proceeding (applicant party) applies under section 138 of the Act for the proceeding to be reopened.
- The Tribunal must –
- allow the applicant party at least 7 days after the application is made to make written submissions about the application; and
- allow each other party to the proceeding at least 7 days after the relevant day to make written submissions about the application.
- What is the effect of non-compliance with a rule? In Charoentanakorn v Bain, the President, Justice Wilson, considered the power of the Tribunal to waive compliance with procedural requirements under the QCAT Act, enabling act or the rules in the QCAT Act, under s 61(1)(c) of the QCAT Act and noted that:
- That provision is not dissimilar to the UCPR rule which says that a failure to comply with the rules is only an irregularity, and does not render a proceeding, or document, a nullity: UCPR, r 371 (1). The UCP rule serves the important purpose of ensuring that civil proceedings are not bound up by undue technicality: Stone v ACE-IRM Insurance Broking Pty Ltd  1 Qd R 173. That principle sits comfortably with one of the objects of the QCAT act: the proceedings are dealt with in a way that is accessible, fair, just, economical, informal and quick.
- Rule 3(2)(b)(iv) of the QCAT Rules, which is as to ‘Philosophy’, provides as to discretion that:
- for exercising its discretion under section 35(6) or (7) or 61 of the Act, recognising that strict compliance with procedural requirement in these rules may not always be necessary.
- The Rules provide in rule 3(2)(b)(ii) that strict application of them is subject to the overall directive to the Tribunal to conduct proceedings in an informal way that minimises cost to parties, and is as quick as is consistent with achieving justice.
- The adjudicator did not accept that a valid reason had been given for an adjournment, and was presented with no cogent evidence or submission by Ms Foley in answer to the claim by Mr Baxter. The adjudicator then proceeded to act determinedly to bring finality to the already protracted proceedings. In doing so, he was acting in a way that was economical, informal and quick.
- The adjudicator was therefore acting in accordance with the overall directive to the Tribunal, and strict application with the provisions of rule 93(2)(a) would not be required, subject to the overall directive of achieving justice.
- The justice of the proceedings at first instance is considered in consideration of the granting of leave to appeal. In Law v Thornley, the President, Justice Wilson, noted the basis for giving leave to appeal as follows:
- Leave to appeal is ordinarily granted where there is a reasonably arguable case of error in the primary decision and leave is necessary to correct a substantial injustice to the applicant caused by that error; and where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.
- In this matter, no injustice is shown as having occurred to Ms Foley by her not being given 7 days to make submissions. Ms Foley has subsequently made submissions in this appeal process, which disclose no credible defence to the proceedings. No matter how much time had been given to Ms Foley to make submissions, there is no basis to believe that they would have affected the outcome.
- Ms Foley based her application to extend time on her medical conditions, and on the previous various attempts that she had taken to set aside, or re-open, the original decision.
- In order to dispose of the application for leave to appeal, I will extend the time for the filing of the application for leave to appeal to the date it was filed, being 7 March 2018.
- The orders sought in the Application for leave to appeal or appeal were as follows:
- Leave to appeal and the appeal be granted;
- The decision made on 23 May 2017 is stayed until final determination of the application for leave to appeal and appeal;
- The decisions of the Tribunal made on 23 May 2017 and 7 February 2018 be set aside;
- The application for Minor Civil Dispute – Minor Debt filed on 20 June 2016 is dismissed;
- Further or in the alternative to paragraph 4 above, that:-
- an extension of time be granted for the filing of the application to reopen the proceedings and/or the filing of the application for leave to appeal and appeal; and
- the proceedings are reopened;
- That the applicant be granted leave to appear at any future hearings by telephone;
- The respondent pay the applicant’s costs of and incidental to this application, the applications filed on 6 February 2018 and the proceedings;
- Any further order that the tribunal deems appropriate.
- In order for the proceeding to be reopened under Division 7 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), a ‘reopening ground’ as defined in Schedule 3 of that Act would have to be established as follows:
reopening ground, for a party to a proceeding, means –
- the party did not appear at the hearing of the proceeding and had a reasonable excuse for not attending the hearing; or
- the party would suffer a substantial injustice if the proceeding was not reopened because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard and decided.
- I am not satisfied that the adjudicator was in error in finding that a reopening ground was not made out. The adjudicator was not satisfied that Ms Foley had a reasonable excuse for not attending the hearing, or that significant new evidence had arisen and that a substantial injustice would occur if the proceeding was not reopened.
- Ms Foley has not shown that she has substantial merits in the proceedings, or that substantial injustice has been caused to her by the conduct of the proceedings. There is no question of general importance upon which further argument, and a decision of the Appeal Tribunal would be to the public advantage. Accordingly, leave to appeal is refused.
- I order that:
- The time for filing an application for leave to appeal is extended to 7 March 2018.
- The application for leave to appeal is refused.
 Application filed 30 August 2016, Para C3, p 2 .
 Ibid C7, p 4.
 Application for miscellaneous matters filed 1 March 2017, C 2, P 2.
 Application for miscellaneous matters filed 21 May 2017, C 2, P 2.
 Affidavit of Thomas Baxter sworn 20 July 2018, .
Shearer v Hogg  QCATA 196, .
  QCAT 356, , .
 Ibid , .
  QCAT 356.
  QCATA 7.
 Rule 3(2)(b)(ii), QCAT Rules.
  QCATA 114.
- Published Case Name:
Michelle Foley v Thomas Baxter
- Shortened Case Name:
Foley v Baxter
 QCATA 48
03 Apr 2019