RSB Australia Pty Ltd v Karaday Pty Ltd (No 2)
[2014] QCAT 691
•15 December 2014
| CITATION: | RSB Australia Pty Ltd v Karaday Pty Ltd (No 2) [2014] QCAT 691 |
| PARTIES: | RSB Australia Pty Ltd (Applicant) |
| v | |
| Karaday Pty Ltd (Respondent) |
| APPLICATION NUMBER: | MCDO1828-14 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | 15 December 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Adjudicator Bertelsen |
| DELIVERED ON: | 15 December 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The respondents reopening application is refused. |
| CATCHWORDS: | Acceptable basis for granting a reopening – grounds for reopening as specified in the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – obligation on applicant to establish reopening ground Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 137 |
APPEARANCES:
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 application heard and determined on 19 November 2014. On that day the applicant appeared, the respondent did not. A decision was made in favour of the applicant.
On 26 November 2014 the respondent lodged an application for reopening with the Tribunal.
Notices of hearing for 19 November 2014 were sent to the parties on 16 October 2014.
On 19 November 2014 an application by the respondent for attendance by telephone was received at the Tribunal. The reasons given for the application were
Mr Glyn Pearce, Director of Karaday Pty Ltd, is unable to attend the hearing due to a previous engagement. He can attend by telephone for a limited time. His phone number is 0411 631 000. Also he asks that his colleague Mr Trevor McPherson also attend by telephone his number is 02 6251 2222.
The application did not specify what the previous engagement was such to make it impossible for Mr Pearce to attend the Tribunal on 19 November 2014.
Quite apart from the fact that this application did not come to the attention of the Adjudicator on the day the application itself does not disclose any adequate reason for not attending personally. In this instance the respondent had more than ample opportunity to make an application for telephone attendance within a reasonable time prior to the date of hearing and to put forward to the Tribunal an adequate reason for attendance by telephone.
It is unreasonable for a party to email an application for a telephone attendance on the day or such as to be received only on the day of hearing and expect that such application will automatically be acceded to.
In those circumstances it was proper for the Adjudicator to proceed with the hearing of the application on the hearing date 19 November 2014.
Previously on 22 October 2014 the respondent had made application for the initiating application to be struck out. By order dated 5 November 2014 the Tribunal ordered, inter alia, that the respondent’s application for miscellaneous matters for an application to dismiss or strike out be refused.
A further application was received from the respondent on 17 November 2014. That application sought ‘another date for the hearing of this case from Wednesday 19 November 2014 at 11:00 am to a more suitable date’.
Once again it is unreasonable for a party to make an application for an adjournment some 48 hours prior to the date of the hearing in circumstances where notice of that hearing has been given at least one month prior and where no adequate reasons are proffered to the Tribunal.
As of 19 November 2014 there were no orders in place granting an adjournment of the hearing of this application. There were no orders for telephone attendance by the respondent. It remained the obligation of the respondent to appear in the absence of an order granting attendance by phone. It is not for QCAT to be attempting to locate parties who, properly aware of a hearing date, do not appear. No acceptable reason for non-attendance is forthcoming from the respondent other than apparently a prior engagement on the part of Mr Pearce respondent director which had been in place for some months prior to the notification of hearing. In fact, such detracts from the respondent’s argument for reopening because the respondent had at least a month to properly request any adjournment or telephone attendance.
There is no reopening ground established pursuant to s 137 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) here. Rather it appears to be an eleventh hour effort to adjourn and/or attend by phone in circumstances where the respondent had ample notice of the date of hearing and would have been fully aware of its obligation to appear in person in the absence of any orders for attendance by telephone.
The reopening application is dismissed.
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