Fishy's Earthmoving Pty Ltd v Cervenak
[2017] QCAT 307
•12 September 2017
CITATION: | Fishy’s Earthmoving Pty Ltd v Cervenak [2017] QCAT 307 |
PARTIES: | Fishy’s Earthmoving Pty Ltd |
| v | |
| Paul Cervenak (Respondent) | |
APPLICATION NUMBER: | MCDO696-17 |
MATTER TYPE: | Other minor civil dispute matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Adjudicator Bertelsen |
DELIVERED ON: | 12 September 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The respondent’s reopening application is refused. 2. The Tribunal’s order suspending the operation of the order dated 22 June 2017 until further order is vacated. |
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL 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 – reopening application – non-attendance at mediation – subsequent Tribunal decision – adequacy of reasons for mediation non-attendance – responsibility to attend mediation Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 137 |
APPEARANCES: |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
By application filed 10 April 2017 the applicant, Fishy’s Earthmoving Pty Ltd (Fishy’s), sought payment of its invoice for $3,450.00 issued
17 January 2017 for rock wall construction and trenching work.
On 12 May 2017, the respondent Paul Cervenak filed a response disputing the quantum of Fishy’s claim and asserting overcharging, time wasting, incorrect materials supplied and damage.
The application was listed for mediation on 22 June 2017 at 9:00am. Notices of mediation were forwarded by the Tribunal to the parties on
23 May 2017 to be received in the ordinary course of post by 30 May 2017.
On 14 June 2017, Mr Cervenak filed an application for adjournment. He requested:
To defer mediation date until a later date – mid to late August. (From 15 Aug ‘17) as I will be enroute [sic] to Mt Isa at the current allocated mediation date.
And stated:
I am currently travelling for work commitments until mid August, and I will not be available for in person or phone appointments until 15 August. I can provide proof of work commitments for interstate & Qld timeframes if required to do so.
On 21 June 2017, the Tribunal ordered:
1. Application for adjournment refused.
2. Respondent is given leave to attend mediation by telephone.
The Tribunal’s decision was communicated by email to both parties on
21 June 2017 at 11:47am and 11:48am.
On 22 June 2017 mediation proceeded. Mr Cervenak did not appear either in person or by phone. Subsequently, on that day the application was referred to an adjudicator who made a decision in favour of the applicant, Fishy’s.
On 29 June 2017, Mr Cervenak emailed the Tribunal stating:
As I stated in my previous correspondence, I was enroute [sic] to Mt ISA [sic] on the day the mediation was taking place. I was out of phone range when the mediator tried to call me. I did communication that this was likely to happen. I also asked that if I could not be contacted, that I want the matter to be dealt with by court hearing.
To date I have not received any information about what the outcome was. Assuming the matter is now going to be dealt with by court hearing, please note that I will be away due to work commitments in Far North Queensland and Darwin until the second week of August. I request that a date be set after mid august [sic] so that I can attend.
On 25 July 2017, the Tribunal Registry informed Mr Cervenak:
If I may clarify for you, a decision was made on 21 June 2017 by an adjudicator allowing telephone appearance at mediation on 22 June 2017. It is the parties [sic] responsibility to be available at the time and date of the mediation. Due to the mediator not being able to contact you for the mediation, the matter was heard and determined by an adjudicator on 22 June 2017 immediately following the mediation due to your non-attendance.
The mediation notice states “Both parties are required to attend the mediation. If you do not attend the mediation then the application may be determined on the evidence provided or directions made about the further conduct of the matter”.
On 10 August 2017, Mr Cervenak filed an application to stay a decision and an application to reopen the initiating application. In that application he stated:
I would like to question here why the hearing was held and a decision made on the same date as the mediation. When your information clearly states that the matter will be set down for hearing on a different day to mediation.
On 11 August 2017, the Tribunal ordered:
1. Interim order is granted, suspending the operation of the order dated
22 June 2017, until further order.
2. Application for reopening is referred to original QCAT Registry for submissions on the Application.
The mediation notice was clear. If a party does not attend the mediation, then the application may be determined on the evidence. It wasn’t considered necessary to make directions about the further conduct of this application. Mr Cervenak’s adjournment application was refused. It was incumbent on him to appear in person or by phone.
Clearly there was a preference on the part of Mr Cervenak to attend to work commitments over attendance at mediation. Informing the Tribunal that he was out of phone range when the mediator tried to call him adding that such was likely to happen is not an adequate reason to reopen an application under s 137 of the QCAT Act. Nor is it for the respondent to create for himself the option that if he was uncontactable then the application was to be dealt with ‘by court hearing’.
Mr Cervenak asserted he was unaware that a hearing had taken place. The mediation notice was clear stating that if a party did not attend mediation then ‘the application may be determined on the evidence’. There was no statement in the mediation notice suggesting that the application would be set down for hearing on a different day to mediation.
In conclusion, it was Mr Cervenak’s responsibility to avail himself of options available on 22 June 2017 i.e. attend in person or be contactable by phone. He did neither.
The reopening application is refused.
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