QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:	White v Ideal Concreting and Landscapes ABN 75 165 352 250  [2022] QCAT 310	
PARTIES:	KRISHANGI WHITE	
	(applicant)	
	V	
	IDEAL CONCRETING AND LANDSCAPES 
ABN 75 165 352 250	
	(respondent)	
APPLICATION NO/S:	MCDO0159-22	
MATTER TYPE:	Other minor civil dispute matters	
DELIVERED ON:	22 August 2022	
HEARING DATE:	On the papers	
HEARD AT:	Southport	
DECISION OF:	Member Lee	
ORDERS:	Application dismissed.	
CATCHWORDS:	PROCEDURE – PARTIES TO ORIGINAL JURISDICTION – JOINING AND REMOVING PARTIES – where applicant seeks review of decision to dismiss joining party to default decision nunc pro tunc – where applicant was party to a building dispute - whether Tribunal has discretion to make an order to join an additional respondent to a matter post-decision to avoid frustration of the applicant’s debt recovery – whether joining an additional respondent post-decision is desirable according to natural justice
Civil Proceedings Act 2011 (Qld) s 58
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(a), s 32, s 40, s 42, s 50, s 64
Uniform Civil Proceeding Rules 1999 (Qld) sch 1
Kiora v West (1985) 62 ALR 321
O’Brien v Gladstone Regional Council [2015] QCATA 82
Olindaridge Pty Ltd & Anor v Tracey & Anor [2014] QCATA 207	

APPEARANCES & REPRESENTATION:		
Applicant:	Self-represented	
Respondent:	No appearance or representation	
	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

[1]	On 17 June 2022 the Applicant filed an interlocutory application in Form 55 to amend the Tribunal’s decision the day before, of 16 June 2022.
Background
[2]	The subject dispute involves building work in the suburb of Bonogin.  Bonogin is a rural hinterland locality in the City of Gold Coast, Queensland, Australia.  The origin of name is not [widely] known, but it is speculated that it is derived from the Aboriginal word Boonoo meaning red bloodwood.
[3]	On 23 March 2022 the Applicant filed an application for minor civil dispute – minor debt in Form 3 against “Ideal Concreting and Landscapes ABN 75 165 352 250” with an address in the suburb of Graceville in the State of Queensland. An “alternative address” of Forest Lake, Queensland was also given. 
[4]	As a damages vis a vis debt claim, it seems to me that the application was irregular and rather, should have been filed as a consumer and trader dispute.
[5]	As to liability, the legal person owning the said Australian Business Number was in fact A & K Simpson Pty Ltd ACN 165 352 250 rather than the named “Ideal Concreting and Landscapes,” which I infer was its trading name. 
[6]	I also note the quantum claimed was: $7,573.50 amount owning, $126.22 interest owing (1 February 2022 to 1 April 2022), $127.50 filing fee and $274.50 service fee. The total claimed was $8,101.72.
[7]	The claim for interest was irregular in that it should have been $51.04 for those dates pursuant to the Civil Proceedings Act 2011 section 58.
[8]	Also, the claimed service fee is significantly more than Tribunal allowances. At most $50.65 would be allowed in Schedule 1 of the Uniform Civil Procedure Rules 1999.
[9]	It appears that the Applicant had difficulty in serving the Respondent.
[10]	Secondly, Ms White filed an application to extend the time limit for service and for waiver of compliance with a procedural requirement in Tribunal Form 42 on 5 May 2022.
[11]	There were two orders sought being firstly an “exemption to waive compliance with serving documents” and “to allow documents to be served by email.”
[12]	In the result, the application was successful with the extension and substituted service by email orders given by Tribunal decision dated 12 May 2022. 
[13]	Thirdly, the Applicant filed a Request for decision by default in Form 6 on 16 June 2022. 
[14]	It seems to me that with great respect to the learned Adjudicator, the following decision may have been in error regarding both interest and costs allowances, as mentioned above. 
[15]	In any case, this Tribunal allowed the application, more specifically, giving Default Decision for the Applicant in the sum of $8,139.53, comprising: $7,573.00 claim, $402.00 costs and $164.53 interest.
[16]	On 16 June 2022, the Tribunal’s Default Decision was: the Respondent Ideal Concreting and Landscapes ABN 75 165 352 250, pay to the Applicant Krishangi White, the sum of $8,139.53 …”
[17]	Fourthly, and most immediately relevant to this decision, the Applicant filed an application to amend a default decision in Form 55 on 17 June 2022.  Its grounds were:
“Due to the fact that ideal concreting and landscapes trading under ABN 75 165 352 250 is cancelled, and the original quote is for ABN 30 346 635 566 which is registered under the personal name of Alwyn Simpson, I request to have Alwyn Simpson added to the documentation as liable for the debt and therefore am able to pursue recovery of the debt from both parties.”
[18]	The facts relied upon were:
“Relying on documentation as follows: Original invoice is from ideal concreting and landscapes which does not show ASIC or ABN searches.  ABN attached to original quote – 30 346 635 566 which is showing in ABN / ASIC search as ‘The Timber Fencing Co’ under the name of Alwyn Simpson.  The only other ABN found for Alwyn Simpson is a cancelled ABN 75 165 352 250 which is for A and K Simpson, which was cancelled in Jan 2020, quote given to us in December 2020.” 
[19]	Later on 17 June 2022 the Tribunal emailed the existing parties with the application, asking them to file any written submissions on or before 23 June 2022.  No such submissions were received from anyone.
[20]	There is nothing on the Tribunal file for the Respondent, nor Mr Simpson. 
Law
[21]	This application is brought in the Tribunal’s original, (vis a vis review), jurisdiction.
[22]	The applicant seeks to not substitute but rather and notably, add another party (Mr Simpson) after the final decision, nunc pro tunc.  For the reasons which follow, that is inappropriate here. 
[23]	The default decision for a ‘debt or liquidated damages’ was entered by section 50 of the Queensland Civil and Administrative Tribunal Act 2009 (Act). 
[24]	Such decision is sought to be amended.
[25]	The starting point as to parties allowed in this Tribunal’s civil procedure is Chapter 2, Part 4 of the Act.  The provisions include: 

39 Parties to original jurisdiction
A person is a party to a proceeding in the tribunal’s original jurisdiction if the person is—
    (a) the applicant; or 
    (b) a person in relation to whom a decision of the tribunal is sought by the applicant; or 
    (c) intervening in the proceeding under section 41; or 
    (d) joined as a party to the proceeding under section 42; or 
    (e) someone else an enabling Act states is a party to the proceeding.

42 Joining and removing parties
    (1) The tribunal may make an order joining a person as a party to a proceeding if the tribunal considers that—
        (a) the person should be bound by or have the benefit of a decision of the tribunal in the proceeding; or 
        (b) the person’s interests may be affected by the proceeding; or 
        (c) for another reason, it is desirable that the person be joined as a party to the proceeding. 
    (2) The tribunal may order that a party be removed from a proceeding if the tribunal considers that—
        (a) the party’s interests are not, or are no longer, affected by the proceeding; or 
        (b) the party is not a proper or necessary party to the proceeding, whether or not the party was one originally. 
    (3) The tribunal may make an order under subsection (1) or (2) on the application of a person or on its own initiative.

[26]	Also of some relevance is: 

64 Amending particular documents
    (1) The tribunal may, at any time in a proceeding, make an order requiring that a relevant document be amended. 
    (2) The tribunal may make the order on the application of the party who filed the document or on its own initiative. 
    (3) The tribunal’s power to make an order under subsection (1) is exercisable only by—
        (a) the tribunal as constituted for the proceeding; or 
        (b) if the tribunal has not been constituted for the proceeding—a legally qualified member, an adjudicator or the principal registrar. 
    (4) In this section—
    "relevant document" means—
        (a) an application or referral; or 
(b) a document responding to an application or referral.

[27]	The relevant Practice Direction is Number 8 of 2013:

1. Under section 42 of the QCAT Act, a person may be joined as a party to a proceeding in specified circumstances.
2. A party or person making an application for joinder must specify the capacity in which the person is sought to be joined as a party to the proceeding. That is, whether the person be joined as an applicant, or as a respondent.
3. When an application for joinder is made, the Tribunal will make directions setting out a timetable for submissions about the application. As well as making directions for submissions from the parties and the applicant for joinder (if not already a party), the tribunal may also invite submissions from the person who is the subject of the application. The submissions must set out whether they agree or not agree with the orders sought, and the reasons for that position.
4. The directions will also provide for the hearing of the joinder application. Usually the hearing will be ‘on the papers’; that is, the Tribunal will decide the application after receiving and considering the written submissions, but without an oral hearing.
5. If the Tribunal decides that a person should be joined as a party, the order shall specify the capacity in which the person is joined and how that person will be referred to in the proceeding.

[28]	Although not strictly written in her capacity as my fellow Tribunal Member, I also wish to acknowledge an insightful article of Ms Browne in the Queensland Law Society’s journal, Proctor. 
[29]	In short, as to whether it is desirable for Mr Simpson to be added as a party, it is appropriate to take the following into consideration:

•	the extent of the delay in seeking to amend;
•	the costs associated with that delay;
•	prejudice to the opposing party if leave were granted;
•	the nature and importance of the amendment to the party applying;
•	the point the litigation had reached, relative to the trial commencement date;
•	prejudice to other litigants awaiting trial dates; and
•	the explanation for the delay in applying for the amendment.

Delay
[30]	Given the availability of free and paid online searches that were available prior to the originating application being filed, there has been significant delay on the Applicant’s part in filing the subject application.
Costs 
[31]	Given in this list of Minor Civil Disputes, the Tribunal is generally a ‘no costs jurisdiction’ there are little costs implications to either party or Mr Simpson, aside from own time, possible unrecoverable solicitor and own client costs and filing fees.
[32]	I take notice generally that many parties that need but cannot afford civil dispute resolution advice, obtain it from a Community Legal Centre.
Prejudice 
[33]	Prejudice to Mr Simpson is a major concern.  To date if Mr Simpson can be inferred to have notice of proceedings, which is uncertain, those are not against him in the sense of naming him.  I take him to have acted accordingly.
[34]	Indeed if the company owning the Respondent’s named Australian Business Number is no longer trading and in the process of being wound up, there would seem little point and indeed it may not be appropriate for its officers to take further steps. 
[35]	It is so important to proclaim to the world that limited liability companies are so limited that they are required to say so in their very name.
[36]	If Mr Simpson had been named personally, he may well have accorded himself differently.  A right to a fair hearing is fundamental to any administration of justice according to law in the State of Queensland, including at this Tribunal.  
[37]	Prior orders of the Tribunal notwithstanding, it is not proven to the applicable standard that anything relevant has come to specific attention of Mr Simpson.  Ex parte applications have significantly higher duties on the applicant regarding evidence and submissions both for and against the making of the decision, very little of which I see discharged here as to evidence or submissions. 
[38]	Similar concerns have been expressed in comparable circumstances by this Tribunal on multiple occasions both before and after the passing of the Human Rights Act 2019. For example: 
“Because [Respondent] Robyn Dalziel did not receive any QCAT documents naming her as a Respondent to the claim, giving her notice of the hearing, or naming her as a party to the order of 4 March 2013, it would be problematical to add her as a party to that order now. In fairness this could only be done by holding a hearing at which she could make representations if she wished about the merits of the matter and the form of any order. Bearing in mind the order would appear to be enforceable in the Magistrates Court as it stands, this would not appear to be proportionate.” 
Nature and Importance of the Amendment
[39]	The nature and importance of the requested amendment is fundamental in that it not only seeks to add a party not already named, Mr Simpson is to be in addition, not in substitution.
[40]	Among other things this raises central concerns about with whom the Applicant was contracting.  There is nothing in the material before me suggesting that she was contracting with two, not one legal person, either in series or parallel.
[41]	On the contrary, the Applicant expressly wishes to pursue ‘debt recovery’ against two not one person. 
[42]	This of itself means the subject application cannot succeed as pleaded. 
The Point the Litigation Had Reached, Relative to the Trial Commencement Date 
[43]	There having been no filed response for the Respondent, this matter had gone past the point of trial, or in Tribunal terms, final hearing, to the final decision. 
[44]	By requesting another party be added, the Applicant has effectively sought to reopen the proceedings afresh, but retain the benefit of the default decision. 
[45]	On balance it is quite too late to file the subject application and expect a positive result. 
The Explanation for Delay 
[46]	The timing is curious in the subject application being filed immediately after the default decision.  It seems open to speculate that the Applicant may have known earlier that she was suing the wrong party. 
[47]	In any case, no explanation for delay is given by the Applicant. 
Conclusion 
[48]	The onus on the Applicant that the Tribunal has the power and ought to exercise it has not been discharged. 
[49]	In accordance with the foregoing reasons, the application is fundamentally flawed on multiple grounds and must be dismissed.