Davis v Blocksidge - [2012] QCAT 211

CITATION:

Davis v Blocksidge [2012] QCAT 211

PARTIES:	Anthony Davis (Applicant/Appellant)
v
Michael David Blocksidge (Respondent)

APPLICATION NUMBER:

REO002-12

MATTER TYPE:

Building matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Michelle Howard, Member

DELIVERED ON:

15 May 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The applications filed by Anthony Davis for reopening and for leave for legal representation are dismissed.

CATCHWORDS:

APPLICATION FOR REOPENING – where applicant alleges reasonable excuse for not attending hearing – where given notice – where applicant alleges substantial injustice because new evidence – where no new evidence

Queensland Civil and Administrative Tribunal Act 2009, ss 5, 43, 47, 48, 137, 139

Aon Risk Services Australia Limited v Australian National University [2009] 239 CLR 175
Breezeway Developments Pty Ltd v AND Hydraulics Pty Ltd [2010] QCATA 69

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

Mr Davis has filed an application to reopen a proceeding on the grounds that he had a reasonable excuse for not attending at the hearing and that he would suffer a substantial injustice if the proceeding was not reopened because of significant new evidence which was not reasonably available when the proceeding was first heard and decided.
He contends that he was not notified of the hearing. He says that he had been in contact with the tribunal in early 2011 and again in June 2011 by telephone and in person, and had notified that he would be in Papua New Guinea for an extended period of time due to work commitments. He says that having filed a response it was clear that he intended to defend the application. Further, he says evidence not considered at the first hearing should be put before the tribunal.
Mr Blocksidge opposes the application.
The tribunal may only grant a reopening application only if it is satisfied that a reopening ground exists for the party, and the ground could effectively be dealt with by reopening the proceeding.[1] There are two reopening grounds specified in the QCAT Act.[2] Firstly, the party did not attend the hearing but had a reasonable excuse for not attending the hearing.[3] Secondly, if the proceeding is not reopened, the party would suffer a substantial injustice for the reason that there is significant new evidence which has arisen, which was not reasonably available when the proceeding was heard and decided.[4]
[1] QCAT Act, s 139(4).
[2] QCAT Act, s 137.
[3] QCAT Act, s 137(a).
[4] QCAT Act, s 137(b).

History of the original proceeding

Mr Blocksidge filed an application in the tribunal on 14 February 2011, for claims relating to alleged defective plastering work performed by a subcontractor, Mr Davis. Mr Davis filed a response and counter-claim on 1 March 2011. He said that the work was not defective and claimed full payment of monies owed, although the amount of the claim was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Davis v Blocksidge

Details

AGLC: Davis v Blocksidge [2012] QCAT 211
Case: [2012] QCAT 211
Decision Date: 15 May 2012

CaseChat Overview and Summary

Davis, the applicant, sought to reopen his proceedings against Blocksidge, the respondent, after a default judgment was entered against him. The matter came before the Court on an application for reopening and for leave to be legally represented. The primary legal issues were whether the applicant had a reasonable excuse for not attending the hearing and whether there was a substantial injustice to him if the proceedings were not reopened.

The Court found that the applicant had been given notice of the hearing and had failed to provide a reasonable excuse for his absence. Further, the Court found that the applicant had not demonstrated any new evidence that would have changed the outcome of the hearing. The Court held that there was no substantial injustice to the applicant and dismissed both the application for reopening and the application for leave to be legally represented.

The Court dismissed the applications filed by the applicant. No orders were made in favour of the applicant.

Orders

Orders of the court

1. The applications filed by Anthony Davis for reopening and for leave for legal representation are dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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