Rowlands v Zanows Sand and Gravel Pty Ltd - [2014] QCAT 633

CITATION:

Rowlands v Zanows Sand & Gravel Pty Ltd [2014] QCAT 633

PARTIES:	Charle Rowlands (Applicant)
v
Zanows Sand & Gravel Pty Ltd (Respondent)

APPLICATION NUMBER:

MCDO50562/14

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

On the papers

HEARD AT:

Beenleigh

DECISION OF:

Adjudicator Trueman

DELIVERED ON:

20 October 2014

DELIVERED AT:

Southport

ORDERS MADE:

1. That the Respondents Application for Leave to Re-open filed on 3 October 2014 is refused.

CATCHWORDS:

Minor Civil Dispute – minor debt – re-opening

Queensland Civil and Administrative Tribunal Act 2009
Queensland Civil and Administrative Tribunal Rules 2009

Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226

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 (Qld) (QCAT Act).

REASONS FOR DECISION

The Respondent, Zanows Sand & Gravel Pty Ltd (“Zanows”) filed an application to reopen on 3 October 2014. Zanows seeks to reopen the claim following a decision made on 1 September 2014 requiring the company to pay to Mr Rowlands the sum of $7,624.29.
Section 138(1) of the Queensland Civil and Administrative Tribunal Act 2009 (the Act) 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.
Section 137 of the Act states that the definition of a 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 substantial injustice if the proceeding was not reopened because significant new evidence has arisen and that the evidence was not reasonably available when the proceeding was first heard and decided.
Section 139 of the Act gives the tribunal the power to grant an application for reopening only if the tribunal considers a reopening ground exists for the applicant party; and the ground could be effectively or conveniently dealt with by reopening the proceeding under this division, whether or not an appeal under part 8 relating to the ground may also be started.
Zanows has lodged an application for reopening. In accordance with section 139(2) of the Act. The parties were permitted to make written submissions about the application.
Written submissions were filed by Mr Rowlands on 13 October 2014 and by Zanows on 3 October 2014. I have read the submissions and I am satisfied that the application for reopening can be effectively dealt with on the papers without a hearing.
The tribunal file indicates that the applicant filed a claim on 1 May 2014 for minor civil dispute, a minor debt matter claiming payment of unpaid invoices for works performed in March 2013 by Mr Rowlands for Zanows at the Tarong Power Station. Zanows was served with a copy of the claim and with the assistance of a Barrister, filed a Response on 3 June 2014.
The matter was listed for mediation on 16 July 2014. A Notice of Mediation was sent to both parties on 3 June 2014. Both parties attended the mediation. On 17 July 2014, a Notice of Hearing was sent to the parties.
The hearing of the matters was scheduled for 25 August 2014. Mr Rowlands appeared but Zanows did not.
On prior occasions Zanows was both served with the claim and was sent a Notice of Mediation by post to the relevant address provided by Zanows at an address at North Booval. It is clear that Zanows received their mail as they filed a Response and appeared at the mediation. Zanows did not attend the hearing on 25 August 2014, the decision was reserved, and an order made for the filing of further evidence by Mr Rowlands. An order was made in favour of Mr Rowlands on 1 September 2014.
Zanows now seeks to have the proceeding reopening on grounds that they ‘did not receive the Notice of Hearing’. They claim that when they received the decision in the mail that the decision had been reserved and Mr Rowlands was required to file further evidence, they ‘believed it to mean that Mr Rowlands had been ordered to file and serve details of his original claim, such details having been sought from him by letter dated 2.6.2014’.
Zanows claims that ‘the case could not be heard as to the respective merits of each side in the absence of such details’.
I do not accept Zanows submissions that he did not receive the Notice of Hearing. Zanows clearly received a copy of the claim, the Notice of Mediation, a copy of the order made on 25 August 2014 and the order made on 1 September 2014, all sent to the same postal address. I find it impossible to believe that Zanows did not receive the Notice of Hearing.
Zanows had legal representation as evidenced by the many letters Mr Rowlands attached to his submissions. From the evidence Zanows had been communicating about the outstanding invoice since mid-2013. There was evidence letters had been sent by Mr Rowlands to Zanows in August and November 2013 demanding payment. Further letters in June 2014 from Zanows’ Barrister to Mr Rowlands debt recovery agent, confirms their assistance to Zanows and attending to ‘finalise the claim the company has against your client’. This evidence suggests Zanows were considering a counter-claim. Such counter-claim was never filed.
In the response filed by Zanows they acknowledge Mr Rowlands did work for the company, but that the work relating to the unpaid invoice was ‘of no value to the Company’ and ‘as a result of which work Zanows lost more money than the amount claimed’ by Mr Rowlands. Mr Rowlands provided evidence to the tribunal that he had a business relationship with Zanows, had worked for them in the past, and even worked for them after the disputed invoice was issued. He provided evidence that past invoices had been paid by Zanows in December 2012 and January, March and August 2013.
I find that Zanows’ legal representation would have advised him of the importance of attending mediation and the hearing, as in the absence of a party to a proceeding a matter can proceed on an ex parte basis and an order can be made in the absence of that party. There is a clear warning on the Notice sent to parties advising of the ramifications of failing to appear at mediation or a hearing.
I am satisfied that the proper service of the Notice of Hearing has been effected pursuant to rule 38 of the Queensland Civil and Administrative Tribunal Rules 2009 (the Rules). Rule 38 provides for the service of a minor debt claim. The fact that Zanows filed a Response, received the Notice of Mediation and attended, and received the subsequent orders that were made, is evidence that service was affected of the Notice of Hearing.
The Affidavit of Service confirms that the Notice of Hearing was sent to the Zanows on 17 July 2014. When the matter was heard on 25 August 2014, a further order was sent to Zanows. They acknowledge receiving that order. Yet despite Zanows receiving a further order that the ‘decision was reserved’, they did not contact the registry or the tribunal or obtain legal advice as to the ramifications of that order. A final decision was not made until 1 September 2014. Zanows did not take any action to either make enquiries or file an application to reopen until more than a month later.
The applicant has not provided any evidence to the tribunal that would warrant the matter being reopened. The Tribunal has a statutory obligation to deal with matters in ways that are accessible, economical and quick. The Act places obligations upon parties themselves to take care in their dealings with Tribunal matters and to act in their own best interests.
In Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226 at [13] the tribunal expressed the importance of parties taking care in their dealing with Tribunal matters stating:
The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interest. QCAT resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, ... the public as a whole, not merely the parties to the proceedings. Finality in litigation is highly desirable, because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties.
I find that Zanows has failed to take proper care in their dealings with the Tribunal and that the excuse of not receiving the Notice of Hearing is not accepted. Zanows were aware they were involved in a dispute with Mr Rowlands, lawyer letters between parties indicated negotiations and they were well aware there was litigation on foot.
I do not accept that Zanows did not receive the Notice for Hearing. I find that they acknowledge they received all other notices and orders. Zanows acknowledge that Mr Rowlands did work for them but that the work was done and did not ‘add value’. Zanows have not provided any evidence that would constitute a reasonable defence on its merit regarding the case. However, Zanows have not met the first step in providing a reasonable excuse for the reason they failed to attend the hearing. If Zanows cannot provide a reasonable excuse for their failure to attend the hearing, their applicant for reopening must fail and be refused.
For the reasons I have given, the orders I propose to make are as follows:
1. THAT the Application for Reopening filed by the Respondent on 3 October 2014 is refused.