Bamboo Direct Pty Ltd v Twaddell

[2012] QCATA 140

CITATION: Bamboo Direct Pty Ltd v Twaddell [2012] QCATA 140

PARTIES:	Bamboo Direct Pty Ltd
v
Kay Twaddell

APPLICATION NUMBER: APL364-11

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Holland Park

DECISION OF: Richard Oliver, Senior Member

DELIVERED ON: 10 August 2012

DELIVERED AT: Brisbane

ORDERS MADE: Application dismissed.

CATCHWORDS:

Reopening – where application to reopen refused – where no right of appeal

Queensland Civil and Administrative Tribunal Act 2009, 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. On 20 May 2011 the Tribunal made a decision that the applicant pay to Ms Twaddell $9,326.00 including $92.00 filing fee for faulty flooring supplied by Bamboo Direct Pty Ltd.  The decision was made when the matter came on for hearing and the applicant did not appear.

1. On 19 August 2011 the applicant applied to the Tribunal to have the matter reopened under s 138 of the QCAT Act. The grounds for reopening were that Mr McHeze, a director of the applicant, submitted that prior to the hearing he had emailed an application to QCAT requesting that he be permitted to attend the hearing by telephone as he lived over 400km away from Brisbane. He went on to further state that he did not receive a response from QCAT and because of this he overlooked the matter.

1. The learned Adjudicator who considered the application, explained very clearly and adequately that these situations had been considered recently by the Appeal Tribunal that as Mr McHeze knew the date of the hearing it was his responsibility to follow up the request for telephone attendance.  In the exercise of discretion the learned Adjudicator refused the application for reopening.

1. From that decision, Mr McHeze has filed an application for leave to appeal.  Leave to appeal is necessary as this is an appeal from a decision in the minor civil disputes jurisdiction.[1]

[1]        Queensland Civil Administrative Tribunal Act 2009, s142(3).

1. Unfortunately for Mr McHeze there is no right of appeal from a decision to refuse to reopen an application. Section 139(5) of the QCAT Act provides that:

“The tribunal’s decision on the application is final and can not be challenged, appealed against, reviewed, set aside, or called in question in another way, under the Judicial Review Act1991 or otherwise”.

1. Therefore the only order the Tribunal can make is that the application for leave to appeal or appeal be dismissed.