NQ Sheds & Patios Pty Ltd v Mortimer
[2024] QCATA 84
•22 August 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
NQ Sheds & Patios Pty Ltd v Mortimer [2024] QCATA 84
PARTIES:
NQ SHEDS & PATIOS PTY LTD (applicant/appellant)
v
DANIEL JAMES MORTIMER (respondent)
APPLICATION NO:
APL 332 of 2022
ORIGINATING APPLICATION NO:
MCDO 54 of 2022 (Cairns)
MATTER TYPE:
Appeals
DELIVERED ON:
22 August 2024
HEARING DATE:
On-Papers Hearing
HEARD AT:
Brisbane
DECISION OF:
Judicial Member Reid
ORDERS:
1. The application for leave to appeal or appeal filed 8 November 2022 be treated as an application for reopening.
2. The requirement for the application for reopening to be in the prescribed form is waived.
3. Pursuant to s 139(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and r 93 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld), the parties may file in the Tribunal by email to the Registry at [email protected] with a CC to the associate to the Deputy President at [email protected] one (1) copy and serve on each other one (1) copy of any written submissions in relation to the application to reopen the proceedings, by 4:00pm on Thursday, 12 September 2024.
4. The matter be listed for oral hearing before me at 9:15am on Thursday, 19 September 2024.
5. Pursuant to s 32(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Appeal Tribunal will conduct the oral hearing by remote conferencing.
6. In the event the date for the oral hearing in order 4 above is not suitable to either party, they must advise the Tribunal by email to the Registry at [email protected] with a CC to the associate to the Deputy President at [email protected] of an alternative date on which the hearing may be listed, by 4:00pm on Thursday, 12 September 2024.
CATCHWORDS:
APPEAL AND NEW TRIAL — APPEAL – GENERAL PRINCIPLES — where the applicant applies for leave to appeal a decision made in default — where the application seeks a rehearing
PROCEDURE — MISCELLANEOUS PROCEDURAL MATTERS — OTHER MATTERS — where the proper course of action is for the applicant to apply for reopening — where reopening may be granted on specific grounds — whether those grounds exist in this case
ADMINISTRATIVE LAW — ADMINISTRATIVE TRIBUNALS — QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL — appeal from a decision of a magistrate sitting as a member of the Tribunal pursuant to s 171(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
Queensland Civil and Administrative Tribunal Act 2009 (Qld)
Queensland Civil and Administrative Tribunal Rules 2009 (Qld)
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
On 10 May 2022, Daniel Mortimer filed a claim for minor civil dispute in the Queensland Civil and Administrative Tribunal (QCAT) jurisdiction of the Cairns Magistrates court against NQ Sheds & Patios Pty Ltd (NQ Sheds).
Mr Mortimer sought to recover $5,442.64 relating to building work he performed for NQ Sheds.
In its response of 15 June 2022, NQ Sheds disputed that sum was owing and raised issues concerning the quality of Mr Mortimer's work. NQ Sheds claimed it was in fact entitled to recover $6,638.69 from Mr Mortimer.
The matter had initially been listed for a mediation, at which Mr Mortimer did not attend, it was then listed for hearing on 2 September 2022. NQ Sheds was advised of the hearing but incorrectly recorded it in its diary as to be heard on 22 September, and not 2 September as was in fact the case. Consequently, NQ Sheds did not appear at the hearing on 2 September.
On that date, an acting Magistrate who was to hear the matter ordered NQ Sheds to pay Mr Mortimer the sum of $5,442.64 as claimed, together with $127.50 for costs.
Subsequently, a request for reasons for that decision was made by NQ Sheds.
On 26 September 2022, the acting Magistrate in an email to a Justice Department officer, presumably someone in the registry, advised that:
perhaps [NQ Sheds] should be making an application to reopen if they had good reason for the failure to appear.
That was of course the proper course — to apply to set aside the judgement by way of a reopening.
Whether NQ Sheds was advised of its right to apply to set aside the judgement is unknown, but I can see no communication with them at all about this.
Ch 2, Div 7, Pt 7 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) deals with the reopening. Under s 138 a party may apply to the Tribunal for a proceeding to be reopened if the party considers a reopening ground exists.
The term “reopening ground” is defined in Sch 3 of the QCAT Act. It includes that:
the party did not appear at the hearing of the proceeding and had a reasonable excuse for not attending.
In my view, if such an application had been made, it may well have been successful. The wrongful recording of the date of the hearing, in circumstances where the business clearly intended to appear, is likely to have amounted to a reasonable excuse. But a significant factor in the exercise of that discretion would have been the strength of the case it proposed to litigate.
Instead of making an application for a reopening NQ Sheds filed an application for leave to appeal on 8 November 2022, almost two months after it says it was notified of the judgement on 9 September 2022.
There are therefore two significant obstacles for NQ Sheds to overcome, namely:
(a)the proper approach was to file an application to reopen rather than seeking leave to appeal; and
(b)in any case under s 142(3) of the QCAT Act, an application for leave to appeal must be filed within 28 days after the person is given reasons for the decision.
No doubt this explains the request for reasons I earlier referred to but since it was a judgement in default of appearance, reasons would not have been required. There was no indication of whether NQ Sheds was advised of this position.
It seems to me the disposition of this matter is far from satisfactory. Quite apart from the fact that it was Mr Mortimer who did not appear at the mediation (which of course was not fatal to his claim) there it seems to me a couple of difficulties.
Firstly, in the application for leave to appeal NQ Sheds indicated it “would like to ask for a new court date so that we can plead our case”.
It seems to me this is very clearly an indication that it sought in reality to reopen the matter and to have a fresh hearing, rather to than to appeal against the judgement itself. At no time during the various mentions of this matter has any tribunal member turned his or her mind to this issue.
Secondly, there may be jurisdictional issues as to whether in fact this dispute is one within QCAT’s jurisdiction, due to the definition of minor civil dispute in Sch 3 of the QCAT Act. If so, it ought not to have been brought within the QCAT jurisdiction at all, but transferred to the Building List of the Magistrates Court.
The question for me then is what now to do with this vexed matter.
It seems clear that NQ Sheds is only seeking a reopening of the matter so the issues in dispute could be determined.
Section 61 QCAT Act provides that the Tribunal may, by order, waive compliance with a procedural requirement under the QCAT Act or Rules.[1]
[1]Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (QCAT Rules).
It seems to me that, subject to submissions that I propose to have the parties make to me, if they wish, by remote conferencing on 19 September 2024, I will order that the application for reopening in the prescribed form is waived and I treat the application for leave to appeal filed at the Cairns registry on 8 November 2022 as an application for reopening. I propose, pursuant to s 139(3) of the QCAT Act, to determine the matter on the papers, subject to either party persuading me on 30 August that the matter should be disposed of in a different way.
I consider that a reopening ground exists, namely the applicant was denied the opportunity to prosecute its action due to NQ Sheds not properly recording the date of the hearing in its diary. No person from QCAT contacted it at the commencement of the hearing, when it did not appear.
In such circumstances, I propose to re-list the matter so that the parties can make oral submissions before me as to whether the matter should be reopened. I will list the matter for oral hearing on Thursday, 19 September 2024 at 9:15am. The hearing will be conducted by remote conferencing, arranged by QCAT with the parties.
The issue to be determined concerns whether or not I should exercise my discretion to order that the matter be reopened under s 139 of the QCAT Act.
Orders
The application for leave to appeal or appeal filed 8 November 2022 be treated as an application for reopening.
The requirement for the application for reopening to be in the prescribed form is waived.
Pursuant to s 139(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and r 93 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld), the parties may file in the Tribunal by email to the Registry at [email protected] with a CC to the associate to the Deputy President at [email protected] one (1) copy and serve on each other one (1) copy of any written submissions in relation to the application to reopen the proceedings, by 4:00pm on Thursday, 12 September 2024.
The matter be listed for oral hearing before me at 9:15am on Thursday, 19 September 2024.
Pursuant to s 32(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Appeal Tribunal will conduct the oral hearing by remote conferencing.
In the event the date for the oral hearing in order 4 above is not suitable to either party, they must advise the Tribunal by email to the Registry at [email protected] with a CC to the associate to the Deputy President at [email protected] of an alternative date on which the hearing may be listed, by 4:00pm on Thursday, 12 September 2024.
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