Barrett v APVC Ltd (t/a Accor Vacation Club) (No 2)
[2023] QCATA 109
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Barrett v APVC Ltd (t/a Accor Vacation Club) (No 2)[2023] QCATA 109
- Add to List
Barrett v APVC Ltd (t/a Accor Vacation Club) (No 2)[2023] QCATA 109
Barrett v APVC Ltd (t/a Accor Vacation Club) (No 2)[2023] QCATA 109
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION | Barrett & Anor v APVC Ltd (t/a Accor Vacation Club) (No 2) [2023] QCATA 109 |
PARTIES: | elizabeth claire barrett and barry douglas barrett (applicants) v APVC LTD (t/a accor vacation club) (respondent) |
ORIGINATING APPLICATION NO: | MCDO 911 of 2020 |
APPLICATION NO: | APL315-21 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 24 August 2023 |
HEARING DATE: | The hearing of the dismissal application was on the papers. |
HEARD AT: | Brisbane |
DECISION OF: | Dr J R Forbes |
ORDERS: | The dismissal of the application for leave to appeal filed herein on 15 November 2021 is confirmed. |
CATCHWORDS: | APPEAL – APPLICATION FOR LEAVE TO APPEAL – MINOR CIVIL DISPUTE – CONSUMER DISPUTE – where respondent operated a vacation club – where applicants were members of club – where members entitled to apply for subsidized accommodation at domestic and overseas venues – where access to preferred accommodation not guaranteed – where applicants dissatisfied with club’s service – where applicants claim agreement void and seek refund of membership fees – where primary decision to dismisses the action – where reopening order sought several times but refused – where application for leave to appeal primary decision – where applicants refuse to prosecute application for leave until reasons are given for refusals to reopen and seek adjournment – where adjournment granted conditionally – where order for further material within 28 days, after which time respondent at liberty to seek dismissal of proceedings – where respondent seeks dismissal – where proceedings dismissed – where applicants seek further reasons for that decision – where further reasons given – where order for dismissal confirmed Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 138, s 139, s 143, s 159 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Barrett & Anor v APVC Ltd [2022] QCATA 186 Barrett & Anor v APVC Ltd [2022] QCATA 156 Pappas v Meiklejohn’s Accountants [2017] QCATA 60 R v Vaughan [2011] QCA 234 Sali v SPC Limited (1993) 67 ALJR 841 T Hsiao v Fazzari [2020] HCA 35; 383 ALR 446 The Pot Man Pty Ltd v Reaoch [2011] QCATA 318 T hundiyil v Madappan [2013] QCATA 43 Todd v Downing [2011] QCATA 74 |
APPEARANCES & REPRESENTATION: | Applicant: Mr B Barrett, second applicant Respondent: Ms S Norburn. general manager The application for dismissal was decided on the papers. |
REASONS FOR DECISION
Introduction
- [1]The object of this decision is not to determine an application for leave to appeal, but to explain in further detail the order dismissing the substantive application made on 2 June 2023. However, the orders of 27 September 2022 and subsequent non-compliance speak for themselves.
- [2]Following the dismissal order of 2 June 2023 the relevant files were archived. For present purposes they had to be reassembled. They became available to me about one week ago.
- [3]In July 2020 the applicants (‘the Barretts’) joined the Accor club, a managed investment scheme, formerly operating as Accor Premiere Vacation Club and, since 2008, as Accor Vacation Club (‘the Club’).
- [4]The Barretts’ class of membership, recommended by the Club, and described as Platinum Five, attracted a fee of $1,100 per annum.
Dissatisfied customers
- [5]Unfortunately the activities of members were hampered by the Covid emergency and its attendant travel restrictions. After those restrictions were eased, Mrs Barrett’s fears of terrorism made her reluctant to travel by air.[1]
- [6]After several unsuccessful attempts to secure desired bookings, the Barretts were deeply dissatisfied with the Club’s services.
Proceedings are begun
- [7]
- [8]The trial of those claims took place on 22 July 2021. On 10 August 2021, in a reserved decision, the Tribunal dismissed the action.
- [9]
Appeal launched
- [10]On 15 November 2021 Barretts filed an application for leave to appeal. Potentially, it faces a threshold difficulty. In Todd v Downing[5] Justice Wilson, former President of QCAT observed:
It is inescapable that Mr Todd’s present application for leave to appeal is an attempt to challenge or appeal against the learned Magistrate’s decision to refuse a reopening and, on that basis alone, it offends s 139(5) and must be refused.
- [11]
[This] is really an application for leave to appeal the Tribunal’s decision to refuse to reopen the dispute. There is no appeal from a decision on a reopening application.[7]
- [12]Arguably, at least, those statements by eminent Members are apt to dispose of this case. However, I gave the applicants the benefit of any doubt so that on reconsideration, they might abandon their obsessive focus on reopening, then notify the Tribunal accordingly, and proceed to demonstrate, if possible, appellable error in the primary decision.
Refusal to proceed
- [13]Upon the hearing of the application for leave on 27 September 2022[8] the applicants were represented by Mr Barrett. On being invited to present his case for a grant of leave he adamantly, indeed aggressively[9] refused to do so unless and until he received written reasons for refusals to reopen the primary proceedings. He read and re-read, with portentous emphasis, section 122 of the Act, without regard to section 139(5):
The Tribunal’s decision on [a reopening] application is final and can not be challenged, appealed against, reviewed , set aside or called in question in another way, under the Judicial Review Act 1991 or otherwise.
- [14]An attempt was made to persuade him that his interests would be better served by arguing the case for leave and abandoning futile challenges to reopening decisions. But that suggestion was rejected out of hand.
Opportunity to reconsider
- [15]Nevertheless, instead of dismissing the application forthwith for refusal to proceed I granted an adjournment for 28 days subject to this order:
The Barretts’ next step, if any, in these proceedings must be taken within 28 days of this decision. If this condition is not fulfilled the respondent may apply for dismissal of the application for leave to appeal.
- [16]The object of that order was to afford Barretts a final opportunity to reconsider their position and then, if so disposed, to assure the tribunal that they would abandon their focus on reopening and pursue without delay or further complications their application for leave to appeal – the real point of their presence in the Tribunal.
- [17]That opportunity was not accepted; the time for responding to the above order expired in October 2022 and non-compliance continued.
Club seeks dismissal
- [18]On 1 December 2022 the respondent Club applied for dismissal of the application for leave to appeal. In an affidavit filed the same day the Club deposed:
The continual adjournments and lack of progression is causing the [Club] unnecessary disadvantage by requiring continuous appearances for matters which are not properly articulated or substantiated, and commonly where the applicants seek adjournment to agitate unrelated and unnecessary matters.
- [19]On 2 June 2023, for the first time, I was advised of (i) the Barretts’ non-response to the orders of 27 September 2022; and (ii) the respondent’s consequent application for dismissal of the proceedings. At that stage the 28-day limit set by the September 2022 orders had long since expired.
Proceedings dismissed
- [20]On 2 June 2023 I granted the Club’s application, and dismissed the application for leave to appeal.
- [21]Regardless of their non-response to the orders of 27 September 2022, the Barretts, on 26 October 2022, made yet another application for reasons for a refusal[10] to reopen. I was not notified of this step.[11] That application was dismissed as incompetent by Senior Member Brown on 3 November 2022. Interestingly and unsurprisingly Brown SM gave Barretts the same advice they received on 27 September 2022, as follows:
[As] the Appeal Tribunal observed, the appellants’ continued focus remains upon the absence of reasons for the dismissal of the reopening application. … The appellants do not identify the relevance of reasons for the refusal to grant the reopening application decision in the present appeal proceeding. It seems to me that the appellants have become unhelpfully focussed on such reasons, or the absence thereof, in circumstances where that focus is ultimately an arid exercise.[12]
Resolution
- [22]With respect to adjournments the Barretts have been treated liberally. The proceedings dragged on from 24 July 2020 until their termination in June 2023, significantly protracted by the ‘arid exercise’ of repeated questioning of refusals to reopen.
- [23]The time limit imposed by the orders of 27 September 2022 was intended to serve the public interest in finality - a firm policy of the common law,[13] particularly in tribunals such as QCAT, designed for expedition and relative simplicity. Indeed that is the purpose of the leave-to-appeal filter.[14] As Alan Wilson J, then President of the tribunal, remarked in 2011:
It is common knowledge that [our] jurisdiction is a busy and demanding one … QCAT’s resources for the resolution of disputes serve, as the High Court recently observed, the public as a whole, and not merely the parties to proceedings.[15]
- [24]At the same time the President reminded parties that their own cases are not necessarily the centre of the legal universe, that the Tribunal’s publicly funded resources are limited, and there are other litigants waiting in the queue.[16] Besides, there are the interests of other parties when proceedings are unreasonably protracted.
- [25]Those considerations are apposite to the present case.
- [26]These are the reasons for the order made on 2 June 2023. That order is confirmed.
ORDER
The dismissal of the application for leave to appeal filed herein on 15 November 2021 is confirmed.
Footnotes
[1]Barrett & Anor v APVC Ltd [2023] QCATA 156 at [4].
[2]MCDO 911-20.
[3]Minor civil dispute MCDO of 2020, filed 24 July 2020.
[4]QCAT Act ss 138-139.
[5][2011] QCATA 74 at [12].
[6][2013] QCATA 43 at [4].
[7]QCAT Act s 139(5).
[8]Barrett & Anor v APVC Ltd [2023] QCATA 156 at [13].
[9]Ibid at [13]-[15].
[10]By another Member.
[11]My first knowledge of the application of 26 October 2022 was acquired in June 2023 when browsing QCATA reports for an unrelated matter.
[12]Barrett & Anor v APVC Ltd [2022] QCATA 186 at [8] and [11], per Brown SM, emphasis added.
[13]Hsiao v Fazzari [2020] HCA 35; 383 ALR 446 at [44]; R v Vaughan [2011] QCA 234 at [5]; Pappas v Meiklejohn’s Accountants [2017] QCATA 60 at [10] (Thomas QC); The Pot Man Pty Ltd v Reaoch [2011] QCATA 318 at [8] and [10] per Wilson P; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 217; Sali v SPC Limited (1993) 67 ALJR 841 at 843-844.
[14]QCAT Act s 143(4)(b).
[15]The Pot Man Pty Ltd v Reaoch [2011] QCATA 318 at [11].
[16]Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 217; Sali v SPC Limited (1993) 67 ALJR 841 at 843-844.