ONE CCW Pty Ltd ATF the Kallungur Fair Asset Trust v Plus Group Pty Ltd [2025] QCAT 234

• [9] Section 49(5) of the QCAT Act provides that if the tribunal considers a proceeding has been dismissed or struck out in error, the tribunal may order that the proceeding be reinstated. The tribunal may act under subsection (5) on the application of a party to the proceeding or on the tribunal's own initiative.[6]
• [10] The tribunal accepts the respondent's submission in line with the decision in Health Ombudsman v Mekingrailas_[7]_ that the term "error" in section 49(5) of the QCAT Act is sufficiently broad to capture an error made by someone other than the Tribunal, for example, an error by the applicant's solicitor, which was an operative cause of the dismissal. It is not however alleged here the solicitor was in error, but the respondent party.

• [11] Ms Xiong's assumption that the correspondence in the proceedings were being sent to her lawyers and he was taking care of the matter, is inconsistent with the evidence and appears to be due to Ms Xiong taking no reasonable action, as opposed to a genuine mistake of fact. Despite stating that she did not take proper notice of the emails from the tribunal in October 2024, December 2024 and January 2025, Ms Xiong paid enough attention to notice that the applicant's lawyer was included in the email chain sending the directions.[8] When noticing this, Ms Xiong must have seen that her lawyer was not included in the email chain which should have sparked her to either check with lawyer or with the tribunal to confirm if the direction had been sent to her solicitors. She did not do this.
• [12] Ms Xiong's explanation for forwarding the notice of the direction hearing to her lawyers on 23 January 2025 but not forwarding any directions also makes little sense. It is not clear why Ms Xiong would need to forward that email to her lawyer, if she thought they were already receiving all material on her behalf from the tribunal.
• [13] The assertion that Ms Xiong believed her solicitors were managing the proceedings also holds little weight. Ms Xiong has not provided any evidence that she sought to provide any instructions to her solicitor between October 2024 when the proceedings were initiated and February 2025 when they were dismissed. Had she done so, this may have triggered some action to be taken in compliance with the tribunal orders.
• [14] Even if Ms Xiong was initially under some misapprehension that her lawyer was taking care of the proceedings, when she received the directions issued by the tribunal on 19 December 2024 and 15 January 2025, both of which confirmed the non-compliance of both parties, she could no longer be under this misapprehension. These directions would have caused a reasonable person to contact their lawyer to confirm they were handling the matter.
• [15] Ms Xiong referred in her affidavit to a related matter before the tribunal that her lawyer was handling for another company that she is involved in (I.C.E.E Group Pty Ltd). She advised that in that matter, she was contacted by her lawyer on 6 February because of non-attendance at the directions hearing.[9] It is noted that in those proceedings, the company Ms Xiong states she is involved in, has also failed to comply with all tribunal directions, including directions to provide a reasonable excuse for non-attendance at the directions hearing. This is despite Ms Xiong and her lawyer being aware of those proceedings.

Did the error result in the dismissal of the proceedings?

• [16] It is not any error that will be sufficient to reinstate proceedings, it is only where the proceedings have been dismissed or struck out based on the error. The error therefore needs to be the cause of the proceedings ending. The example provided in the Health Ombudsman v Mekingrailas[10] and the similar decision in the Federal Circuit Court and in the Administrative Appeals Tribunal[11] are in relation to a solicitor who misunderstood instructions and wrongly consented to a dismissal order or filed a notice of discontinuance. In that example it would be the specific action of the solicitor which led to the proceedings being dismissed.
• [17] In this case the proceedings were struck out due to noncompliance, by the applicant, with numerous tribunal directions. There was no error in this decision by the tribunal. That fact is true. Neither the applicant nor the respondent complied with any directions and no material was filed in the proceedings by any party between 1 October 2024 when the application was referred by the mediator and 3 February 2025 when the application was dismissed.
• [18] The mistake of assuming the respondent's lawyers was receiving the material, even if it was a genuine mistake of fact, did not lead to the application being dismissed. It was the failure of the applicant to file any material which led to the proceedings being struck out. The respondent's mistake and/ or decision to "not take much notice" of the directions issued by the tribunal and then the failure to follow up with either the tribunal or their lawyer when they received notice that they were non-compliant, may have contributed to the failure to lodge a counter application but was not operative in leading to One CCW's application being dismissed. Had Plus Group filed a counter application, there would have been a proceedings which could have been maintained once the initial referral was dismissed. However, the filing of a counter application would not have prevented the initial referral being dismissed.

• [19] Even if the tribunal was to accept that the proceeding has been dismissed or struck out in error, it is still an exercise of discretion as to whether to reinstate the proceedings. Plus Group relied on the saving of time and costs as the basis upon which the discretion should be exercised.
• [20] The respondents' assert it would be a significant waste of time and effort should they have to recommence proceedings. They have not however identified what the significant waste of time and effort is, other than having to re-participate in mediation. There appears to be no time or effort put into the current proceedings before the tribunal by either party, hence why the application was dismissed and why there is no counter application which can be maintained.
• [21] The tribunal notes the respondent's application also fails to recognise the impact on the tribunal's time and resources to date by their failure to take action in the current proceedings until after the application was dismissed. The reinstatement may also cause an unnecessary waste of tribunal resources, as in all likelihood the application by One CCW may be dismissed again, if their current inaction continue
• [22] A secondary issue in relation to Plus Group's application for reinstatement is that they are asking to reinstate a proceedings against themselves as they are the respondents not the applicant. A significant issue with this is that there is no applicant who is actively seeking to pursue the proceedings. One CCW failed to file any material in the proceedings, which resulted in the proceedings being dismissed. Since the proceedings were dismissed, they have not sought to contact the tribunal and agitate for the proceedings to be reinstated.
• [23] Had Plus Group filed a counter application, in line with the directions, as they state was their intention, this would not have necessarily resulted in a different course of action in relation to dismissal. The applicant's noncompliance would have still caused the application to be dismissed, but there would have been a counter application on foot which could have been maintained and pursued. The difficulty for the respondent is that there is no counter application to reinstate as they never filed any such application.
• [24] Plus Group may be able to pursue their own application, if they go through the required pre-litigation mediation and seek leave of the tribunal. However, in the current circumstances where there is no evidence that One CCW as the applicant is seeking to pursue their application, it would not be appropriate for the tribunal to reinstate a proceedings, simply to allow the respondents to file a counter application. This is a particular so given Plus Group had an opportunity to file a counter application during the proceedings and in fact were directed to do so by a specific date and failed to take any action.
• [25] The tribunal is not satisfied on the evidence provided that the proceedings were dismissed in error or that it is appropriate to exercise the tribunal's discretion to reinitiate the proceedings and accordingly the application must fail.

• [26] The application for miscellaneous matters (reinstatement) is refused.

[1] The obligation of parties to act quickly in any dealing relevant to the proceedings.

[2] The power to strike out or dismiss the proceedings.

[3] The obligation of a party to comply with directions.

[4] Affidavit of Renee (Feifei) Xiong, para 7.

[7] [2021] QCAT 199.

[8] Affidavit of Renee (Feifei) Xiong, para 10.

[11] Goldie v Minister for Immigration and Multicultural Affairs [2002] FCAFC 367; [2002] 121 FCR 383; SZLIO v Administrative Appeals Tribunal [2008] FCA 124; White v Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1712.