Ramke Constructions Pty Ltd v Queensland Building Services Authority
[2012] QCAT 417
•30 August 2012
| CITATION: | Ramke Constructions Pty Ltd v Queensland Building Services Authority [2012] QCAT 417 |
| PARTIES: | Ramke Constructions Pty Ltd (Applicant) |
| v | |
| Queensland Building Services Authority (Respondent) |
| APPLICATION NUMBER: | REO008-12 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Jeremy Gordon, Member |
| DELIVERED ON: | 30 August 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Application refused. |
| CATCHWORDS: | APPLICATION TO REOPEN PROCEEDING –proceeding dismissed under section 48(2) of the QCAT Act (party causing a disadvantage) – whether reopening procedure applies Queensland Civil and Administrative Tribunal Act 2009, ss 48(2),136, 137 |
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
Background
Ramke Constructions Pty Ltd (“Ramke”) is a builder licensed under the Queensland Building Services Authority Act 1991.
On 16 September 2011 in a proceeding numbered GAR272-11, Ramke applied to QCAT seeking a review of a decision of the Queensland Building Services Authority (“QBSA”).
On 29 March 2012 the proceeding was dismissed.
Ramke now apply to reopen it. The question arises whether, bearing in mind the reason for the dismissal of the proceeding, Ramke can now apply to reopen it.
Events leading up to the dismissal of the proceeding
QCAT gave directions on 24 November 2011 and a compulsory conference was listed for 6 March 2012.
Ramke failed to appear at the compulsory conference and because of this the QBSA asked the presiding member immediately to dismiss the proceeding. The presiding member declined to do so, instead directing that Ramke “file submissions as to why the application should not be dismissed under section 48(2) of the Queensland Civil and Administrative Tribunal Act 2009”. In the same order, the proceeding was listed for a directions hearing at Brisbane on 29 March 2012.
No submissions were filed by Ramke. At the directions hearing on 29 March 2012, Ramke did not appear. The affidavit evidence filed by the QBSA in this application to reopen shows that the directions hearing did take place and was heard by a senior member of the tribunal. A lawyer in the employ of the QBSA attended the directions hearing and asked for the proceeding to be dismissed under section 48(2) on the grounds that Ramke had not complied with two separate orders of QCAT and had caused unnecessary disadvantage to the QBSA by causing an adjournment.
The senior member dismissed the proceeding on that basis. Although the order does not state the grounds for dismissing the proceeding, it is clear from the sequence of orders and from this evidence that the grounds for dismissal were under 48(2) of the QCAT Act.
Section 48(2), together with s 48(1), permits the Tribunal to dismiss a proceeding if an applicant unnecessarily disadvantages another party to the proceeding by (amongst other things) not complying with a tribunal order or direction without reasonable excuse.
When an application to reopen can be made
[10] Applications to reopen proceedings are governed by Chapter 2 Part 7 Division 7 of the QCAT Act. Section 136 of that division provides as follows:
This division applies to a proceeding, other than an appeal under part 8, division 1, that has been heard and decided by the tribunal.
[11] If the division applies, then section 137 provides:
reopening ground, for a party to a proceeding, means -
(a) The party did not appear at the hearing of the proceeding and had a reasonable excuse for not attending the hearing; or
(b) The party would suffer a substantial injustice if the proceeding was not reopened because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard.
[12] Section 138 permits a party to a proceeding to apply to the tribunal for the proceeding to be reopened if the party considers a reopening ground exists.
Was a proceeding heard and decided by the tribunal?
[13] By section 136 of the QCAT Act set out above, the reopening regime only applies to a proceeding heard and decided by the Tribunal. So the question arises whether at the hearing on 29 March 2012 the proceeding was “heard and decided”.
[14] In my opinion, for a proceeding to have been heard and decided by the tribunal it is necessary (unless the parties are agreed as to the order the Tribunal should make) for there to be a hearing of the proceeding rather than a hearing of some other matter connected with it. Usually in a hearing of the proceeding, the merits of the proceeding would be considered and assessed by the Tribunal, although this might not happen for example if the applicant does not appear and the Tribunal is satisfied that the application is no longer being pursued. But when a proceeding is dismissed or struck out for non-compliance nothing of this nature happens. Instead, all that is considered is whether it is just to dismiss or strike out for the non-compliance in all the circumstances of the case. On such a dismissal or strike out the proceeding is not heard, nor is a decision made as to the success or failure of the proceeding whether on its merits or otherwise. Therefore the proceeding is not “heard and decided” and the reopening regime does not apply to the decision to dismiss or strike out.
[15] This conclusion is supported by the nature of the reopening grounds set out in section 137. They are both clearly aimed at correcting injustices suffered by a party at a hearing of the proceeding itself. Neither of the grounds addresses issues which might arise upon a dismissal or strike out for non-compliance – for example, the seriousness of the failure to comply, explanations for the failure to comply, reasons for delays in complying, whether there was an intention not to comply, the prejudice to each party of the orders which may be made and whether there can be a fair trial despite the failure to comply.
[16] The matter is put beyond doubt by the wording of section 140, which deals with the effect of a decision to reopen. It requires the tribunal to hear and decide the issues in the proceeding again “by way of a fresh hearing on the merits” and either confirm, amend or set aside the previous final decision in the proceeding. If the previous final decision in the proceeding is set aside then a new decision may be substituted. These are not words which fit well with a reopening of a dismissal or strike out for non-compliance, since in such circumstances the issues in the proceeding have not been decided at all.
[17] Further, section 140(5) provides that the decision as confirmed, amended or substituted is the “tribunal’s final decision in the proceeding”. This would mean that a proceeding which had been dismissed or struck out for non-compliance but then reopened and allowed to proceed upon a condition (such as giving security for costs or a payment-in to the Tribunal) would be stultified and could not in fact proceed to a hearing. This is because the new order would be in substitution for the reopened order and would be deemed to be the Tribunal’s final decision in the proceeding. Section 140(5) cannot be read in any other way.
Conclusion
[18] It is clear that dismissals for non-compliance where the proceeding was not heard and decided do not fall within Chapter 2 Part 7 Division 7 of the QCAT Act 2009 (“reopening”).
[19] It follows that there is no alternative but to dismiss this application for reopening.
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