Nolan v Queensland Building Services Authority & Guthrie-Quinn
[2011] QCAT 128
•22 March 2011
| CITATION: | Nolan v Queensland Building Services Authority & Guthrie-Quinn & Anor [2011] QCAT 128 |
| PARTIES: | Mr Michael Thomas Nolan |
| v | |
| Queensland Building Services Authority, Mr Glen Guthrie-Quinn and Mrs Lisa Guthrie-Quinn |
| APPLICATION NUMBER: | QR194-08 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Mr Paul Favell, Member |
| DELIVERED ON: | 22 March 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The proceeding is struck out and order 2 made on 29 April 2010 is varied to – the applicant must pay the first respondent’s costs fixed at three thousand dollars ($3,000) by 4:00pm on 8 April 2011. |
| CATCHWORDS: | Hearing – non-attendance – claim struck out Queensland Civil and Administrative Tribunal Act 2009, s 48 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
In 2008 an application was made by Mr Michael Thomas Nolan for the determination of various questions relating to the termination of a contract and insurance liability.
The matter had been the subject of numerous directions and had been set down for hearing on a number of occasions. On two occasions hearing dates were vacated. The hearing was set down for hearing on 29 April 2010.
When the matter was called on, Mr Nolan did not appear. His name was called three times with no response. During the course of the hearing, the Tribunal rang Mr Nolan’s mobile phone a number of times. On each occasion, the telephone call was terminated by the person answering Mr Nolan’s phone.
Because of the non-appearance, the Tribunal ordered that the proceeding be struck out unless Mr Nolan provided a reasonable excuse for his non-appearance at the hearing by 4:30pm on 14 May 2010.
On 14 May 2010 the Tribunal received some correspondence from Mr Nolan. It did not contain a reasonable excuse for his non-appearance.
On 2 June 2010, the Civil Administration and Disciplinary Principal Case Manager at the Tribunal wrote to Mr Nolan and advised him that he was required to make a proper application setting out in detail the reasons for his non-appearance at the hearing on 29 April 2010 by 4:00pm on 11 June 2010.
By a letter dated 10 June 2010 and received by email on 11 June 2010, Mr Nolan said:
“In reponce [sic] to the letter I received from amanda taylor from QCAT. I tried to contact Amanda but she was away from work and I was told to resubmit my letter as to why I did not attend the hearing. I was suppose (sic) to receive correspondence about the last hearing. And I was also to get a date by which to send in any statements which were to be used at the hearing. And finally a date for the next hearing. I received none of the correspondence mentioned above. As all of the correspondence was sent to the wrong address by QCAT. I found this out when QCAT rang me and said what had happened.”
The address on the letterhead of the letter set out in paragraph 7 herein was 35 London Street, Nundah, Qld, 4012. That is the address noted on the QCAT file and was the address to which hearing notices were sent advising of the hearing date.
The file also discloses that previous notices were sent to that address and Mr Nolan attended previously listed proceedings.
The file discloses that there have been a number of occasions when a hearing date has been vacated. On occasions, Mr Nolan has been represented by Counsel and on 26 February 2010, he made an application for an adjournment. A Compulsory Conference at that stage was ordered in Mr Nolan’s presence for 13 April 2010. He did not attend that Compulsory Conference. The matter was set down for hearing on 29 April 2010 and a Notice of that hearing was sent out to his correct address. In a four line e-mail on 14 May 2010, Mr Nolan claimed that he had not been given notice of the hearing date. The file discloses otherwise.
The Tribunal is not satisfied that Mr Nolan has provided a reasonable excuse for his non-attendance at the hearing.
Section 48 of the Queensland Civil and Administrative Tribunal Act 2009 provides for the striking out of a proceeding where a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including failing to attend the hearing of the proceeding without reasonable excuse. As Mr Nolan has not, in the view of the Tribunal provided a reasonable excuse, the proceeding has been struck out.
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