Collier v Coast to Coast Earthmoving Pty Ltd

[2018] QCATA 129

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Collier v Coast to Coast Earthmoving Pty Ltd [2018] QCATA 129

PARTIES:

KATHERINE LOUISE COLLIER
(applicant/appellant)

v

COAST TO COAST EARTHMOVING PTY LTD

(respondent)

APPLICATION NO/S:

APL044-18

ORIGINATING APPLICATION NO/S:

MCDO 76 of 2017

MATTER TYPE:

Appeals

DELIVERED ON:

31 August 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Carmody

ORDERS:

The application for leave to appeal or appeal is refused.

CATCHWORDS:

APPEAL – MINOR CIVIL DISPUTE – APPLICATION TO REOPEN – where the applicant seeks leave to appeal the tribunal’s decision refusing to reopen the proceeding – where the original application to recover costs under an earthworks contract was adjourned part-heard – where the applicant failed to attend the resumed hearing without a reasonable excuse and orders were made in her absence – where s 139(5) prohibits appeals from reopening decisions – where the application for leave to appeal is refused

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 139(4), (5)

APPEARANCES:

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. This is an appeal from a decision of the tribunal refusing an application to reopen a proceeding.

2. The originating application, involving disputed charges under a contract for earthmoving and other works at the respondent’s property, was part heard on 6 September 2017 before being adjourned to 1 November 2017.

3. The applicant paid the quoted amount but advised the respondent that no further payments would be made because additional charges, amounting to over $10,000, were for works that were not explained or authorised. She claims that the respondent did not complete all works as per the original project requirements and the quote. Her central contention is that fill material to be used for a house pad was removed from the site without her authorisation leaving her to purchase additional material from a different contractor at additional cost.

4. The applicant was present at the 6 September 2017 hearing when the hearing was adjourned to 1 November 2017. Her address had not changed throughout the proceeding, and indeed was the address of the building site where the dispute arose. The relevant notice is recorded as having been sent on 6 September 2017 and there was no evidence of it being returned undelivered.

5. The tribunal decided the dispute against the applicant in default of appearance on 1 November 2017. 

6. On 28 November 2017 the applicant filed an application to reopen the proceeding on the basis that she had not received a Notice of Hearing confirming the date. If she had, she says she would have been there and defended her position.

7. The tribunal refused to reopen the proceeding on 1 February 2018, finding that the applicant had not offered a reasonable excuse for her non-attendance and it was not in the interests of justice (or aligned with the objects of the QCAT Act) to re-open the proceeding.

   Applicant’s submissions

8. The Form 39, filed on 21 February 2018, proposes the following grounds of appeal:

   ·The hearing proceeded in circumstances where the applicant’s non-appearance was neither wilful nor disrespectful but occurred because the applicant was unaware of the date due to not receiving a Notice of Hearing;

   ·The applicant has a substantive defence to the whole claim. The decision has substantial adverse financial consequences and the applicant has suffered prejudice in not being able to present her defence;

   ·There is no or very little disadvantage to the respondent in having a re-hearing. Any inconvenience is offset by the detriment to the applicant in not having her claim determined according to the substantial merits of the case;

   ·The applicant suffers from an advanced depressive illness and the dispute is causing her increased stress and anxiety.

   Respondent’s submissions

9. The respondent submits that under s 139(5) QCAT Act the tribunal’s decision to reopen is final and cannot be challenged on appeal.

10. The respondent says that no reopening ground existed because both parties have attended mediation and tribunal hearings on the basis of notices received with no subsequent change of address. Moreover, the parties consented to the adjournment, including the 1 November 2017 date, at the hearing on 6 September 2017.

11. The respondent points out that the applicant did not produce any evidence of non-delivery, including that the notice was returned to the tribunal. Therefore, the tribunal made the right decision in finding that there was no reasonable excuse for the non-attendance and there is no basis for disturbing it on appeal.

12. As to the substantive case, the respondent reserves the right to make further submissions if their interpretation of s 139 is incorrect. It says that if the applicant is appealing the decision made on 1 November 2017, she is out of time and requires leave under s 142(3) QCAT Act which should be refused because the applicant has not identified any error in the primary decision but rather confines her complaint to the making of the order in her absence.

    Reopening under the QCAT Act

13. Under s 139(4) QCAT Act the tribunal may grant an application to reopen only if the tribunal considers that a reopening ground exists and the ground could be effectively or conveniently dealt with by reopening the proceeding.

14. The failure of a party to attend a hearing with reasonable excuse is a reopening ground.[1]

    [1]QCAT Act Sch 3.

15. The tribunal adjourned the hearing to allow both parties to arrange witnesses to attend to be cross-examined on contested issues of fact and credit.

16. The applicant was present when the 1 November date was discussed (no less than four times[2]) and had previously received all notices.

    [2]Transcript of Proceedings, 6 September 2017, 1-17:5; 1-17:15, 1-21:45, 1-22:15.

17. The tribunal’s finding that the applicant had no reasonable excuse for not attending was open on the facts before it.

18. In any event, s 139(5) QCAT Act provides that “the tribunal’s decision on the application (to reopen) is final and can not be challenged, appealed against, reviewed, set aside, or called into question in another way, under the Judicial Review Act 1991 or otherwise”.

19. The application is refused. It is incompetent and devoid of legal merit.