Ren v. Poolworld Pty Ltd

[2011] QCAT 706

CITATION: Ren v Poolworld Pty Ltd [2011] QCAT 706

PARTIES:	Mrs Qi Xian Ren
v
Poolworld Pty Ltd

APPLICATION NUMBER:   REO011-11

MATTER TYPE: Other civil dispute matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Peta Stilgoe, Member

DELIVERED ON: 12 October 2011

DELIVERED AT: Brisbane

ORDERS MADE:      1.    Application by Poolworld Pty Ltd to reopen the counterclaim is refused.

CATCHWORDS: 

PROCEDURE – where guillotine order made – where party failed to file material in compliance with guillotine order – where defaulting party alleges failure caused by inability to gain access to subject site – where counterclaim dismissed pursuant to guillotine order

Queensland Civil and Administrative Tribunal Act2009, ss 137, 138

Aon Risk Services Aust Ltd v Australian National University (2009) 239 CLR 175

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

1. On 31 May 2011, a Senior Member of the tribunal dismissed Poolworld’s counterclaim in proceeding number BDL427-10.  Poolworld has applied to reopen the counterclaim.

2. It is necessary to set out the history of tribunal directions in the building file.

a)On 11 March 2011, the tribunal ordered that the parties file and serve written material they were relying on by 4 May 2011.  The proceeding was listed for hearing on 18 May 2011.

b)On 16 May 2011, the tribunal vacated the hearing date and ordered that the parties file and serve written material they were relying on by 26 May 2011.  The tribunal also made a guillotine order; if either party failed to comply with the direction to file material, their claims would be dismissed without further notice.

1. Poolworld did not file any material in compliance with the order of 16 May 2011.  That default gave rise to the order of 31 May 2011.

2. Poolworld has filed submissions in support of the application for reopening that state:

a)Poolworld needed access to Mrs Ren’s property to take photos and further substantiate its counterclaim.

b)Throughout the later part of March and the early part of May 2011, it attempted to arrange access.

c)A meeting was scheduled for 5 April but Poolworld postponed the meeting due to inclement weather.

d)Poolworld made further contact with Mrs Ren on 3 and 4 May but she did not respond.

e)Poolworld filed material in support of its claim, without photographic support, on 5 July 2011.

1. The tribunal may reopen a proceeding if a “reopening ground” exists[1].  “Reopening ground” is defined,[2] relevantly as:

   “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 heard and decided.”

   [1] Section 138 Queensland Civil and Administrative Tribunal Act2009.

   [2] Section 137(b).

2. There are two insuperable problems to Poolworld’s application.  The first is that, although Mr Howell, director of Poolworld, swore an affidavit about his attempts to secure inspection up to and including 4 May 2011, there is no material before me to explain what happened between 4 May and 26 May 2011.  The tribunal gave an extension of time on 16 May 2011 but there is no evidence that Poolworld asked for access after that order.  If Poolworld was finding access so difficult, why did it not ask for a specific order when the matter was before the tribunal on 16 May 2011?

3. The second problem is that, as Poolworld has now demonstrated by filing material on 5 July 2011, evidence was reasonably available to it on 26 May 2011 without the benefit of an inspection.  The affidavit of Mr Howell was sworn on 16 May 2011.  The affidavit responds to Mrs Ren’s allegations and provides some evidence about the variations.  Poolworld has not explained why it failed to file that affidavit by 26 May 2011.

4. The tribunal has an obligation to act fairly according to the substantial merits of the case, and according to the principles of natural justice while acting with as little formality and as much speed as matters permit.  In determining whether Poolworld should have leave to reopen the counterclaim, the tribunal should have regard to questions of delay, wasted costs, the legitimate concerns of proper case management, and the proper use of public resources.[3]

   [3]Aon Risk Services Aust Ltd v Australian National University (2009) 239 CLR 175.

5. The proceeding was commenced in October 2010.  Orders for the filing of material were given in March.  This proceeding should have been finalised in May 2011.  Poolworld has been granted indulgences but failed to make use of them.  The application for reopening should be refused.