Harrington, Kenning and Yeh v Toowong - [2014] QCAT 264

CITATION:

Harrington, Kenning and Yeh v Toowong [2014] QCAT 264

PARTIES:	Amber Harrington, Shelly Kenning and Leonie Yeh (Applicants)
v
Run Property Toowong (Respondent)

APPLICATION NUMBER:

MCDT3038/13

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Mr Paul Arthur (Justice of the Peace, Presiding)
Mr Darryl Schmidt (Justice of the Peace)

DELIVERED ON:

10 March 2014

DELIVERED AT:

Brisbane

ORDERS MADE:	1. Application for reopening is refused.
CATCHWORDS:	Minor civil dispute - reopening

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
[1]Section 138(1) of the QCAT Act allows a party to a proceeding to apply to the tribunal for the proceeding to be reopened if the party considers a reopening ground exists for the party.
[2]Section 137 of the QCAT Act states the definition of a reopening ground, for a party to a proceeding, means –
(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.

Section 138 of the QCAT Act deals with the procedural requirements for the application to reopen. Section 139 of the Act states:
139 Deciding whether to reopen
(1) This section applies if a party (the applicant party) to a proceeding makes an application under section 138 for a proceeding to be reopened.
(2) Each party to the proceeding must be given an opportunity to make, within the period stated in the rules, written submissions about the application.
(3) The tribunal—
(a) must consider any written submissions made under subsection (2) about the application; and
(b) may decide whether or not to reopen the proceeding entirely on the basis of documents, without a hearing or meeting of any kind.
(4) The tribunal may grant the application only if the tribunal considers—
(a) a reopening ground exists for the applicant party; and
(b) the ground could be effectively or conveniently dealt with by reopening the proceeding under this division, whether or not an appeal under part 8 relating to the ground may also be started.
(5) 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 Act 1991 or otherwise.
On 20 February 2014 the Respondent lodged an application for reopening. In accordance with section 139(2) of the Act the parties were allowed to make written submissions about the application for reopening. The Applicants lodged a written submission with QCAT which was received on 3 March 2014.
The Respondent in their application for reopening gave the following reasons:
We have not ever received any notification of any QCAT hearing on this matter. Therefore the decision was made with no representation of our clients behalf. Therefore we request a reopening of the claim & to review the decision.
This matter was set down for hearing on 12 February 2014 at 9.30am in Room 6B, Level 10, 259 Queen Street, Brisbane Q 4000. A Notice of Hearing was sent by QCAT to the Respondent on 23 of December 2013 to their business address at 535 Milton Road, Toowong QLD 4066 which advised of the date, time and place of the hearing. A Notice of Hearing was also sent to the Applicants.
On 12 February 2014 all three Applicants appeared in person but there was no appearance by the Respondent. The Tribunal then phoned telephone numbers (07) 38336663 and (07) 38336660 in an attempt to contact the Respondent; but was unsuccessful in making contact.
These telephone numbers were listed as the contact numbers for the Respondent in the Application for minor civil dispute - residential tenancy dispute lodged with QCAT on 17 December 2013.
I have gone to the website of the Respondent and note that it indicates that their contact number is (07) 38336660.
I have reviewed the QCAT file and note the vodafone bill summary for Shelly Kenning; particularly for 29 Aug 2013 where it indicates that a phone call had been made to telephone number 38336663. In the margin of the bill summary beside this telephone number is handwriting which states ‘Warren RUN Property’.
I also note in the QCAT file a copy of the phone log for Shelly Kenning which matches what is contained in the vodafone bill summary. That phone log shows that twice on 29 August 2013 that a call was made to 38336663. A handwritten note is made along side this phone log which states ‘Warren Creighton, Run Property - called Warren ...’.
As stated above, the Applicants have lodged a written submission in respect of this application to reopen. They strongly object to this matter being reopened and, inter alia, state:
The fact that Warren Creighton/Run Property received a copy of the outcome of the tribunal that was held on 12th of February, yet alleges he did not receive a copy of the hearing notice, is unconvincing in itself. Particularly because the QCAT office retains a record that Run Property was in-fact sent a notice at the correct mailing address. Further, all 3 applicants each received a notice of the hearing. In addition, a phone conversation, once the initial notification of hearing was received by tenants, was also held with Warren, during which the applicant expressed that this dispute and was tribunal was not an attack upon himself and that he should not take it personally, to which he said he understood and ensured he was not losing any sleep over, again suggesting he was aware of the tribunal.
The applicants would also like to point out that Warren was not only the one who advised the tenants to request for rent reimbursement originally, but the tenants also asked him about the common proceedings of our tribunal and how it would be carried out. In the initial proceedings prior to the application for tribunal, Warren continued to demonstrate a lack of regard for the matter and the applicants. He did not respond to any emails, calls or messages left by the RTA mediator dealing with our matter, pushing us to take the issue to the tribunal."
The Applicants in their written submission (as above) indicate that they telephoned the Respondent after they received notification of the hearing date to discuss matters. Even if the Notice of Hearing sent by QCAT to the Respondents business address on 23 December 2013 had not been received by the Respondent; it is very difficult to imagine such a conversation taking place between the parties without the Respondent becoming aware that the matter had been set down for hearing.
As stated above, when the Respondent failed to appear for the hearing on 12 February 2014; the Tribunal telephoned two (2) numbers for the Respondent in order to give the Respondent every opportunity to present their case.
The Appeal Tribunal in Creek v Raine & Horne Real Estate Mossman[2011] QCATA 226 at [13] stated:
The statutory regime under which QCAT operates places obligations upon partiesthemselves to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, ‘... the public as a whole, not merely the parties to the proceedings’. Finality in litigation is highly desirable, because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties.
I am not satisfied that a reopening ground exists and accordingly refuse the application for a reopening.

Order

Application for reopening is refused.