Abraha v Rogers Ottley Pty Ltd

[2012] QCATA 69

CITATION: Abraha v Rogers Ottley Pty Ltd [2012] QCATA 069

PARTIES:	Biniam Abraha (Applicant/Appellant)
v
Rogers Ottley Pty Ltd t/as Havig & Jackson Real Estate (Respondent)

APPLICATION NUMBER: APL037-12

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Richard Oliver, Acting Deputy President

DELIVERED ON: 27 April 2012

DELIVERED AT: Brisbane

ORDERS MADE: Leave to appeal is refused.

CATCHWORDS:

Minor Civil Dispute – where refusal to reopen – where error found in the exercise of discretion not to reopen

Queensland Civil and Administrative Tribunal Act2009, s 138

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. Mr Abraha was a tenant in rented premises managed by the respondent as agent for the lessor.  On 24 October 2011 the respondent filed an application in the minor civil disputes jurisdiction of the Tribunal claiming compensation for cleaning of the premises and damage to a cork tiled floor.  The total claim was for $995.50 made up of $770.00 to repair the floor, and $225.50 for cleaning.

1. The matter came on for hearing on 15 December 2011.  Mr Abraha did not attend the hearing.  The learned Adjudicator who heard the matter was satisfied that the claim was made out and ordered that Mr Abraha pay the respondent the amount claimed of $995.50.  I can say from a perusal of the minor civil dispute file there was sufficient evidence before the Tribunal to prove, on balance, the amount of the claim. 

1. After receiving notice of the Tribunal’s decision, Mr Abraha filed an application to reopen the proceeding. The application to reopen was refused by an order of the Tribunal made on 20 January 2012. Notes on the file indicate that there was no explanation for the applicant’s non-attendance at the hearing. Section 138 of the Queensland Civil and Administrative Tribunal Act 2009 is quite specific in setting out the circumstances in which a proceeding can be reopened.  They include whether or not the applicant has a reasonable excuse for not attending the hearing or whether there would be substantial injustice if the matter was not reopened.  The determination of whether a proceeding should be reopened is an exercise of discretion and will not be interfered with lightly. 

1. Mr Abraha then filed an application for leave to appeal or appeal on 9 February 2012.  In his grounds of appeal, Mr Abraha sets out a lengthy statement as to why he did not attend the Tribunal.  He contends he did not receive any correspondence from the Tribunal notifying him of the hearing date.  He says that the first correspondence he received from the Tribunal was on 15 December 2011 advising him of the decision that had been made.

1. Subsequently, when he applied to reopen there was some confusion about how the application would be dealt with.  Mr Abraha attended the Tribunal on 20 January 2012 believing there would be a further hearing to consider the reopening application on that date.  However by that stage the decision not to reopen the application had been made and he was advised of that fact by the Registry staff.

1. The rest of his submission relates to the substantive issues in the minor civil dispute being his defence to the claims for cleaning and the replacement of the damaged cork tile.

1. Before leave to appeal will be granted, Mr Abraha has to satisfy the Appeal Tribunal that the learned Adjudicator who refused to set aside the decision made an error of law in not doing so.  The minor civil dispute file indicates that a notice of hearing was sent in the post to Mr Abraha on 23 November 2011 at the same address to which the decision of the Tribunal was sent.  It was therefore reasonable for the Tribunal to assume that service of the Notice of Hearing was served on the applicant.  As the Tribunal was satisfied as to service of the notice of hearing, the default decision entered against him was regular. 

1. The learned Adjudicator who made the decision not to reopen the application exercised a discretion on the information available to the Tribunal at the time of considering the application.  That is, in the circumstances, that there was no reasonable excuse as to why there was no attendance at the hearing in the face of evidence that the Notice of Hearing had been served in accordance with the Rules and Tribunal procedures. 

1. There is nothing in a review of the minor civil dispute file or in the submissions filed in the appeal that would indicate that the learned Adjudicator fell into error in the exercise of discretion.[1]  The application for leave to appeal is refused.

   [1]        House v R (1936) 55 CLR 499.