O'Hara-Close v Kalman

[2013] QCATA 61

CITATION: O’Hara-Close v Kalman [2013] QCATA 61

PARTIES:	Mr Alexander Michael O’Hara-Close (Applicant/Appellant)
V
Mr Michael Kalman & Mrs Nada Kalman (Respondent)

APPLICATION NUMBER: APL156-12

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Mr Richard Oliver, Senior Member

DELIVERED ON: 27 February 2013

DELIVERED AT: Brisbane

ORDERS MADE: The application for leave to appeal or appeal is dismissed.1.   

CATCHWORDS:

Reopening – where appeal from a decision not to reopen – where no right of appeal on a decision about a reopening.

Queensland Civil and Administrative Tribunal Act2009, s 139(5).

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. On 1 December 2011 the applicant commenced a proceeding in the minor civil disputes jurisdiction of the Tribunal claiming $630.00 from the respondent for the cost to repair the fence on their common boundary.  The responded filed a response to that application on 10 January 2012. 

1. When the matter came on for hearing on 29 February 2012 the application was dismissed because the applicant did not appear. 

1. The applicant subsequently filed an application to reopen the proceeding on the grounds that his non appearance at the hearing was not intentional and it was an oversight on his part.  The respondent filed submissions in response to the application to reopen. 

1. The matter was referred to a Tribunal Adjudicator who, upon considering the material, refused to reopen the proceeding.  On 11 May 2012 Mr O’Hara-Close filed an application for leave to appeal or appeal the decision not to reopen the proceeding.  He says in the application, that it’s contrary to the interests of justice that he was not given an opportunity to present his case and that the Tribunal failed to act fairly according to the substantial merits of the case.  He has filed submissions in support of his application for leave to appeal as have the respondents.  The applicant’s submissions go to the reasons why he failed to attend the Tribunal on the appointed date and relies on a medical condition as a reasonable excuse for not attending. 

1. Division 7 of the QCAT Act specifically deals with applications to reopen. It sets out what constitutes reopening grounds and the procedure to be adopted when considering a reopening application. The section also deals with appeals from reopening decisions. Section 139(5) specifically provides that:-

“The Tribunal’s decision on the application is final and cannot be challenged, appealed against, reviewed, set aside, or called into question in another way, under the Judicial Review Act 1991 or otherwise.”

1. The section makes it clear that there is no right of appeal from a decision about a reopening and therefore the appeal is misconceived. The only order that I can make is that the application for leave to appeal or appeal be dismissed.