Andrasescu v Sandor
[2013] QCAT 698
•1 November 2013
| CITATION: | Andrasescu v Sandor [2013] QCAT 698 |
| PARTIES: | Daniel Andrasescu (Applicant) |
| v | |
| Tibor Sandor (Respondent) |
| APPLICATION NUMBER: | MCDO493/13 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Gordon |
| DELIVERED ON: | 1 November 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The application for reopening is refused. |
| CATCHWORDS: | Minor Civil Dispute – Application to Reopen - whether reopening grounds exist – whether reasonable excuse for not attending the hearing – whether substantial injustice if the proceeding were not reopened |
APPEARANCES and REPRESENTATION (if any):
The tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
On 2 September 2013 the Applicant applied on Form 43 for reopening of the proceedings. In accordance with section 139 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) the parties were given an opportunity to make representations on the application to reopen. On 1 November 2013 I considered the application to reopen “on the papers” and refused it. The Applicant now asks for written reasons for this decision.
The proceedings had been heard in Brisbane at 2pm on 1 August 2013. At that hearing the Respondent did not appear, although a Hungarian interpreter who was booked for the hearing to assist him did do so. The Applicant appeared in person. Just prior to the hearing at 12.16pm, an email was sent to the tribunal on the Respondent’s behalf which stated that he could not attend due to his being required at work. The email asked that the Respondent be informed of the result of the hearing. The email did not ask for the hearing to be postponed. At 1.27pm an officer of the tribunal responded to the email by advising that the hearing would proceed.
In the light of the Respondent’s non appearance, at the hearing the Respondent’s material filed in response to the claim was considered by the decision maker. An order was made that the Respondent should pay to the Applicant the sum of $9,245.95 including interest and filing fee.
The application for reopening said that the reason why the Respondent did not attend the hearing was an “urgent business interest” and it was said that this was reasonable excuse.
In response, the Applicant states that he works for the same company as the Respondent and that they had both been given time off work to attend the hearing.
By Division 7 of the QCAT Act a party may apply to the tribunal for a reopening if they have a reopening ground. One of the reopening grounds (relied on here) is that the party did not appear at the hearing of the proceeding and had a reasonable excuse for not attending the hearing.
The notice of hearing was sent out on the 8 July 2013. The Respondent asked for a Hungarian interpreter to attend and this was organised for him. On 24 July 2013 an email was sent to the tribunal on the Respondent’s behalf asking for confirmation that the interpreter had been booked. It is clear from all the emails that the Respondent intended to attend the hearing, but changed his mind only at the very last minute.
It seems likely therefore that the Respondent had made arrangements with his employer to enable him to attend the hearing as the Applicant says. This means that if the Respondent is correct in saying that he was asked to stay at work after all, this means that he had a choice at that time whether to comply with that request or to decline that request and come to the hearing. This was therefore a choice between two conflicting demands upon his time. He chose to stay at work. He did not have to do so. It cannot be said in these circumstances that he had a reasonable excuse for not attending the hearing.
Another reopening ground is that a party would suffer a substantial injustice if the proceeding were not reopened because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard and decided. There is nothing in the material now presented by the Respondent which could not have been provided at the hearing on 1 August 2013.
I conclude therefore that there is no reopening ground, and the application to reopen must therefore fail.
Even if a reopening ground is proved, it does not necessarily follow that the matter should be reopened. By section 139(4) of the QCAT Act, the tribunal may make a reopening order. And it can only do so if the ground relied on could effectively or conveniently be dealt with by reopening the proceedings.
Here, even if the Respondent had a reasonable excuse for not attending the hearing, it was his decision not to do so. Parties do not have to attend the hearing if they do not wish to. If a party makes a decision not to attend the hearing and to rely only on written material submitted to the Tribunal, then they will normally have to accept the consequences of that decision. The reopening provisions cannot be used as a form of appeal.
The tribunal has a statutory obligation to deal with matters in a way that is accessible, fair, just, economical, informal and quick[1]. The tribunal must encourage the early and economical resolution of disputes and ensure proceedings are conducted in an informal way that minimises costs to the parties, and is as quick as is consistent with achieving justice[2]. If the proceedings were reopened, another hearing would be needed bearing in mind the claim is disputed. Such a hearing would involve further time and expense for the Applicant. It would also involve further expense for the tribunal.
[1]QCAT Act s 3(b).
[2]QCAT Act ss 4(b) and 4(c).
Therefore even if there is a “reasonable excuse” reopening ground, it still is not right to reopen the proceedings because to do so would be contrary to the tribunal’s statutory obligations set out above. Further, for the same reasons I do not think that the failure of the Respondent to appear at the original hearing could conveniently be dealt with by reopening the proceedings.
0
0
0