Ishaac v Tyrell[2023] QCATA 16

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

What is the application about?

1. [1]
   By an application for a minor civil dispute – dividing fences filed 22 April 2022 Ms Ishaac sought orders that Mr and Ms Tyrrell reimburse her for the costs of a dividing fence already erected. On 4 May 2022 a Magistrate acting as a Tribunal Member dismissed Ms Ishaac’s application and on 28 July 2022 Ms Ishaac applied for leave to appeal the first instance decision to dismiss her claim.
2. [2]
   Applications for leave to appeal or appeal originating from the minor civil dispute (MCD) jurisdiction typically proceed as quickly as possible to a hearing (whether on the papers or in person) after the filing of submissions and evidence. The more onerous appeal directions such as those that require the filing of transcripts, and an Appeal Book are bypassed given the quick and informal nature of the MCD jurisdiction.
3. [3]
   Despite this, various interlocutory applications have been made in this proceeding to date which have necessarily delayed it from being listed for a final hearing.
4. [4]
   The most recent was an application for miscellaneous matters filed by Mr and Ms Tyrrell on 3 January 2023 seeking the following directions:

   1. (a)
      An order that the applicant supply all correspondence to the Appeal Tribunal to the respondents in accordance with Direction 6 made 20 December 2022 by email;
   2. (b)
      An order that all correspondence dating back to the commencement of the proceeding that has not been provided to the applicants be sent to the applicants to afford the respondents a “fair judicial proceeding”; and
   3. (c)
      An explanation as to why an extension of time was granted for compliance with Direction 3 made 20 December 2022 without calling for submissions from the respondents who say they are suffering “significant distress and disadvantage” from the ongoing delay in the conduct of the matter.
5. [5]
   On 3 January 2023 I dismissed the application for miscellaneous matters and, upon request of the respondents, provide reasons for the dismissal as follows.

What is the legislative framework?

6. [6]
   The tribunal is mandated^[1] to deal with matters in a way that is accessible, fair, just, economical, informal and quick, and must also:

   1. (a)
      encourage the early and economical resolution of disputes;^[2] and
   2. (b)
      ensure proceedings are conducted in an informal way that minimises costs to the parties and is as quick as is consistent with achieving justice.^[3]
7. [7]
   The tribunal must be mindful that their resources serve the public, not just the parties to the proceedings, Justice Wilson noting in Creek v Raine & Horne Real Estate Mossman^[4] that:

The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, “… the public as a whole, not merely the parties to the proceedings”.^[5]  Finality in litigation is highly desirable, because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties.^[6]

8. [8]
   Section 62(1) of the QCAT Act permits the tribunal to give a direction at any time in a proceeding and do whatever is necessary for the speedy and fair conduct of the proceeding.
9. [9]
   Without limiting that power, the tribunal may give a direction requiring a party to the proceeding to produce a document or another thing or provide information to the tribunal or to another party to the proceeding.^[7]
10. [10]
    The tribunal’s power to make a decision in a proceeding (the primary power) includes a power to make such directions as the Tribunal considers appropriate for achieving the purpose for which the tribunal may exercise the primary power.^[8]

Request for an order that the applicant comply with Direction 6 made 20 December 2022

11. [11]
    This request was refused because it is unnecessary:

    1. (a)
       Firstly, the Appeal Tribunal has already made the order sought and the original order has not been vacated. Making the same order again is futile. 
    2. (b)
       Secondly, non-compliance with an order can more appropriately be addressed by a party or by the tribunal on its own initiative in several ways, including by waiving the need to comply, by extending time to comply or by making findings and acting against the non-complying party.

Request for an order that all correspondence dating back to the commencement of the proceeding that has not been provided to the applicants be sent to the applicants to afford the respondents a “fair judicial proceeding”.

12. [12]
    This order sought was refused because:

    1. (a)
       Firstly, it is, respectfully, a nonsense:

       1. It is not for the tribunal to provide correspondence to the parties as the parties have obligations to give a copy to each other of communication sent to and documents filed in the tribunal.
       2. It is certainly not for the respondents to require the tribunal to give to the applicant correspondence that has not been provided to the applicant, particularly given such an order can only logically apply to correspondence that has originated from the respondents (since the applicant would already be privy to their own correspondence).
13. [13]
    Secondly, parties have the power to inspect tribunal files thereby obtaining a copy of correspondence for themselves.
14. [14]
    Finally, and again, non-compliance with an order to give copies, or failing to give copies, are issues that can be addressed by a party or by the tribunal on its own initiative in several ways, including by the tribunal refusing to consider the evidence that was not served in making its decisions.

Request for an explanation as to why an extension of time was granted for compliance with Direction 3 made 20 December 2022

15. [15]
    This request is misconceived as it seeks reasons for a decision made 20 December 2022. A reasons request can be made but also refused by the tribunal where the request pertains to reasons for the giving of directions.^[9]
16. [16]
    Although not relevant, I would add that to the extent the respondents say they are suffering from “significant distress and disadvantage” from the ongoing conduct of the dispute, this is difficult to identify in an objective review of circumstances where:

    1. (a)
       in 2020 the respondents were asked and regretfully refused to contribute to the cost of a replacement dividing fence;
    2. (b)
       in 2021 Ms Ishaac replaced the fence at significant cost and was unsuccessful in her first instance attempt to obtain an order that Mr and Ms Tyrrell contribute to the costs incurred; and
    3. (c)
       therefore, it is Ms Ishaac who suffers the greater detriment of ongoing delay given she is the party who continues to bear the out-of-pocket expense and will continue to be so if her application for leave to appeal and appeal are not successful.

Summary

17. [17]
    The application for miscellaneous matters filed 3 January 2023 was misconceived and dismissed for the reasons given.
18. [18]
    The Appeal Tribunal notes that the matter cannot proceed to a final hearing whilst the parties continue to file interlocutory applications that do nothing to advance the matter to a substantive conclusion. Notably, final submissions are near due, and the matter can be listed once they close to relieve each party of the angst of ongoing litigation between them.