NQ Sheds & Patios Pty Ltd v Mortimer

[2024] QCATA 97

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

NQ Sheds & Patios Pty Ltd v Mortimer [2024] QCATA 97

PARTIES:

NQ SHEDS & PATIOS PTY LTD

(applicant/appellant)

v

DANIEL JAMES MORTIMER

(respondent)

APPLICATION NO/S:

APL332-22

ORIGINATING APPLICATION NO/S:

MCDQ54-22 Cairns

MATTER TYPE:

Appeals

DELIVERED ON:

19 September 2024 (ex tempore)

HEARING DATE:

19 September 2024

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Reid

ORDERS:

1. Pursuant to s 93(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Appeal Tribunal will hear and decide the matter in the absence of the respondent.

2. Pursuant to s 139 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Appeal Tribunal decides that the matter be reopened and the decision of the Tribunal made 2 September 2022 be set aside.

3.     The matter be remitted to the Tribunal for rehearing on a date and time to be determined by the Tribunal’s registry at the Cairns Magistrates Court.

CATCHWORDS:

ADMINISTRATIVE LAW — ADMINISTRATIVE TRIBUNALS — QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL — where the applicant has applied for reopening of the proceeding — where the Appeal Tribunal proceeds in the absence of one of the parties — where the decision is set aside and the matter is remitted to the Tribunal

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

APPEARANCES & REPRESENTATION:
Applicant:	Luke Jager
Respondent:	No appearance

REASONS FOR DECISION

Non-attendance

1. Pursuant to section 93 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), I find that the respondent, Mr Mortimer, has not attended the hearing.  I find the Tribunal is satisfied that he has been given notice of the hearing under section 92 and, in particular, there were emails sent to him.  The first one was an email from my Associate to him on 22 August 2024 advising of this hearing, and then from the QCAT Civil Registry on Thursday 5 September, at 7:41am, advising him of this hearing and of the various processes that he could contact and appear by phone.

2. We’ve then tried to ring him again today twice without success, including leaving the number and the PIN code so he could dial in to this hearing.  In the circumstances I’ll determine to hear and decide the matter in his absence. 

Judgment

1. I refer to my judgment in this matter of 22 August 2024.  At the hearing of this matter this morning Mr Jager, a director of North Queensland Sheds (‘NQ Sheds’), appeared for that company.  There was no appearance from Mr Mortimer.  He was twice telephoned but did not answer.  In one of the messages the hearing officer from QCAT left the telephone number for him to call in on together with the PIN number for the chorus call.  He has not called.  My Associate also sent him an email at the commencement of the hearing indicating that the matter was on today and he should call in.

2. There has been no response from him whatsoever. There have been earlier emails from my Associate to both NQ Sheds and to Mr Mortimer, and an email from QCAT Civil dated Thursday 5 September 2024 to NQ Sheds and to Mr Mortimer. I should indicate that the email address of Mr Mortimer in each of those emails is [email protected], and this is taken from the material he filed in the proceedings in the Magistrates Court. In the circumstance I’m happy to proceed in his absence and make an order under section 93 of the QCAT Act to that effect.

3. As I indicated in my earlier judgment, there is, in my view, a reopening ground in this matter.  The material filed at the hearing, and orally outlined by Mr Jager today, also indicates that it is appropriate that I conclude both that Mr Jager, on behalf of NQ Sheds, did not appear at the hearing and had a reasonable excuse for not attending.  Furthermore, in the exercise of my discretion, I should conclude that the strength of the case proposed to be run by NQ Sheds is such that it is appropriate to set aside the judgment below. 

Decision

1. In the circumstances I will order:

2. Pursuant to s 93(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Appeal Tribunal will hear and decide the matter in the absence of the respondent.

3. Pursuant to s 139 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Appeal Tribunal decides that the matter be reopened and the decision of the Tribunal made 2 September 2022 be set aside.

4. The matter be remitted to the Tribunal for rehearing on a date and time to be determined by the Tribunal’s registry at the Cairns Magistrates Court.