John v Wastestream Corporation Pty Ltd - [2012] QCATA 186

CITATION:

John v Wastestream Corporation Pty Ltd [2012] QCATA 186

PARTIES:	Richard John (Appellant)
v
Wastestream Corporation Pty Ltd (atf The Bath Family Trust, trading as Freestyle Fencing) (Respondent)

APPLICATION NUMBER:

APL192-12

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes, Member

DELIVERED ON:

27 September 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of the Tribunal made on 14 June 2012 is set aside.

2. This dispute is remitted to the Tribunal to be reheard by a Member or Adjudicator who has not already dealt with it.

3. No order as to costs.

CATCHWORDS:

PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – OTHER MATTERS – where party failed to appear – where judgement entered in default of appearance – where appellant not aware of date of adjourned hearing – whether satisfactory reason for non-appearance

Acts Interpretation Act 1954, s 39A
Acts Interpretation Amendment Act 1991, s 35
Queensland Civil and Administrative Tribunal Act 2009, ss 3, 4, 28, 32, 61, 93, 137, 138, 139
Queensland Civil and Administrative Tribunal Rules 2009, r 3

Dr FA v Medical Board of Queensland [2012] QCAT 110
Coker v Ray White Moranbah [2011] QCATA 206
Island Development Group v Smith Development Pty Ltd [2012] QCATA 15
Space Con Pty Ltd v Blue Star Pacific Pty Ltd [2011] QCATA 361
Kordatos v Jackson [2011] QCATA 177
Chivers v State of Queensland [2011] QCAT 357

Yankee Doodles Pty Ltd v Blemvale Pty Ltd [1999] QSC 134

Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Gem Po-Chioh Cheong v Webster; Ex parte Gem Po-Chioh Cheong [1986] 2 Qd R 374

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

On 14 June 2012 the Tribunal, sitting at Southport, ordered the Appellant Richard John to pay $3,701.50 to Wastestream Corporation Pty Ltd (‘Wastestream’) for the manufacture and installation of fencing and screens on John’s Oxenford property in September 2011.
That decision was made in default of John’s appearance at the hearing.[1]
[1] Queensland Civil and Administrative Tribunal Act 2009, s 93.
On 25 June 2012 John filed an application for leave to appeal, asking the Tribunal “to allow me to make my case and defend my position, as I have not had an opportunity to do so”. Wastestream has filed no submissions in response to that request.
John’s case, in that respect, is simply that he received no notice of the hearing on 14 June 2012, although, according to registry records, a notice was posted to his address for service on 11 May 2012. However, the presumption of receipt of a document served by post is rebuttable[2], and the QCAT Act and Rules contain nothing to the contrary. It would be passing strange if non-receipt of a notice of trial, well proved, could not be accepted as a reasonable explanation for non-appearance. John…

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.

Keep reading for free

Create a free CaseChat account to read John v Wastestream Corporation Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] QCATA 186
Decision Date: 27 September 2012

CaseChat Overview and Summary

The case of John v Wastestream Corporation Pty Ltd involved the appellant, John, who contested a decision made by the Tribunal on 14 June 2012. The Tribunal had entered a judgement in default of appearance due to Wastestream Corporation Pty Ltd’s failure to appear at the hearing. John appealed this decision, claiming he was not aware of the date of the adjourned hearing. The appeal was heard and determined by the court, which needed to decide if John had a satisfactory reason for his non-appearance.

The court's primary concern was to assess the validity of John's reason for not appearing at the hearing. It examined whether John's lack of knowledge about the adjourned hearing date constituted a sufficient explanation for his absence. The court also considered whether John had exercised due diligence in attempting to ascertain the correct date of the hearing and if there were any procedural errors that could have contributed to his non-appearance.

In its reasoning, the court determined that John's lack of awareness of the adjourned hearing date was a credible and satisfactory explanation for his non-appearance. The court found that John had not been properly notified of the hearing date, and therefore, his absence was excusable. Consequently, the court set aside the Tribunal’s decision and remitted the dispute back to the Tribunal for a rehearing by a different Member or Adjudicator who had not previously handled the case. No order was made regarding the costs of the appeal.

Orders

Orders of the court

1. The decision of the Tribunal made on 14 June 2012 is set aside.

2. This dispute is remitted to the Tribunal to be reheard by a Member or Adjudicator who has not already dealt with it.

3. No order as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.