Darragh v Davis

[2017] QCAT 181

CITATION: Darragh v Davis [2017] QCAT 181

PARTIES:	Peter Darragh (Applicant)
v
Trent Robert Davis (Respondent)

APPLICATION NUMBER: REO025-16

MATTER TYPE: Other civil dispute matters

HEARING DATE: 7 February 2017

HEARD AT: Brisbane

DECISION OF: Senior Member Brown

DELIVERED ON: 29 May 2017

DELIVERED AT: Brisbane

ORDERS MADE:

1.    The application to reopen the proceeding is refused.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS – ACTIONS TO REVIEW OR SET ASIDE JUDGMENT OR ORDER – where application to reopen – where matter dismissed by consent – where matter not heard or determined by the tribunal

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 48, s 136, s 138(2)(a), s 139(2), s 139(4)(a), s 139(4)(b), s 140(1), s 140(4), Schedule 3

Ramke Constructions Pty Ltd v Queensland Building Services Authority [2012] QCAT 417

APPEARANCES:

APPLICANT: Peter Darragh represented himself

RESPONDENT: Trent Robert Davis represented himself

REASONS FOR DECISION

1. Mr Darragh and Mr Davis are neighbours. Growing on Mr Davis’ land are a number of trees which Mr Darragh says affect his land. Mr Darragh filed an application for a tree dispute in the Tribunal. The proceeding was listed for hearing in the Tribunal on 14 October 2016. After the hearing commenced Mr Darragh and Mr Davis reached an agreement to resolve the dispute. The Tribunal ordered, by consent, that the application for a tree dispute be dismissed.[1]

   [1]Decision, 14 October 2016, NDR129-15.

2. Mr Darragh says that he agreed to resolve the matter on the basis of certain information provided by Mr Davis which Mr Darragh says he later discovered to be false. Mr Darragh applies to reopen the proceeding.

   Reopening a proceeding

3. A party to a proceeding may apply to the Tribunal for the proceeding to be reopened if the party considers a reopening ground exists for the party.[2]

   [2]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 138(1).

4. An application for reopening must state the reopening ground relied upon.[3] Each party must be given the opportunity to make written submissions about the application.[4]

   [3]Ibid, s 138(2)(a).

   [4]Ibid, s 139(2).

5. The Tribunal may only grant an application to reopen a proceeding if it considers a reopening ground exists for the applicant[5] and the ground could be effectively or conveniently dealt with by reopening the proceeding whether or not an appeal relating to the ground may also be started.[6]

   [5]Ibid, s 139(4)(a).

   [6]Ibid, s 139(4)(b).

6. A reopening ground is defined:[7]

   (a) the party did not appear at the hearing of the proceeding and had a reasonable excuse for not attending the hearing; or

   (b) the party would suffer a substantial injustice if the proceeding was not reopened because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard and decided.

   [7]Ibid, Schedule 3.

7. If the Tribunal decides that a proceeding should be reopened the Tribunal must decide the issues in the proceeding that…