Schneekloth v James Mullins Constructions

CITATION:	Schneekloth v James Mullins Constructions [2015] QCAT 361
PARTIES:	Amanda Schneekloth (Applicant)
v
James Mullins Constructions (Respondent)

APPLICATION NUMBER:

REO009-15

MATTER TYPE:

Building matters

HEARING DATE:

7 September 2015

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

DELIVERED ON:

7 September 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application for reopening is dismissed.

CATCHWORDS:

Reopening - grounds for reopening - decision by consent following compulsory conference - whether matter heard and decided by Tribunal - power to reopen

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 61, s 136, s 137, s 138, Schedule 3 - Dictionary
Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 92, Schedule – Dictionary

Bielby v Bielby & McGrath [2010] QCAT 649

Layne v Samjam Investments Pty Ltd t/as
Atkinson Dam Waterfront Caravan Park [2015]

QCAT 58

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

What is this application about?

James Mullins Constructions (“Mullins”) undertook building works for Amanda Schneekloth. Ms Schneekloth subsequently filed an application in the Tribunal. She claimed that the works were defective. Following a compulsory conference in April 2015 the matter was resolved and a decision by consent made by the Tribunal.
Ms Schneekloth now applies to the Tribunal to reopen the proceedings.

What does Ms Schneekloth say?

Ms Schneekloth says that Mullins has failed to comply with the directions of the Tribunal relating to the performance of building rectification work. She has filed material in the Tribunal setting forth the relevant history of the dispute between herself and Mullins. In her application to reopen, Ms Schneekloth seeks orders from the Tribunal that the decision made following the compulsory conference be varied to require Mullins to complete the rectification works within a new timeframe. Ms Schneekloth seeks further orders that in the event the works are not completed by Mullins within the varied timeframe, that Mullins pay to her an amount of money by way of damages.
In her submissions to the Tribunal, Ms Schneekloth states that “The ground for reopening exists in the circumstances.” The submissions go on to articulate those grounds as: “the detriment and prejudice caused to the Applicant by relying on the Order, performing the obligation in the order at great financial cost to herself and suffering the injustice and costs from the Respondent failing to comply with the Orders.”[1]
[1]Applicant’s submissions – para 20.
Ms Schneekloth says that the rectification work has not been satisfactorily performed and that further works will be required to be undertaken.[2]
[2]Affidavit of Amanda Schneekloth filed 02.09.15 – paras 33-34.

What does Mullins say?

The submissions and affidavit filed by Mullins do not deal specifically with the basis of the application to reopen the proceedings. Rather, they respond to the issues raised by Ms Schneekloth in her affidavit and other material in relation to the original building works and the rectification works.

Discussion

If a matter has been heard and decided by the tribunal[3] a party to a proceeding may apply to the Tribunal for the proceeding to be reopened if the party considers a reopening ground exists[4].
[3]QCAT Act s 136.
[4]Ibid s 138(1).
Reopening ground is defined as:
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 and decided.[5]
[5]QCAT Act Schedule 3 – Dictionary.
Ms Schneekloth’s application and submissions do not specifically state the reopening ground[6] other than general references to prejudice, detriment and injustice. Specifically, the submissions do not address the issue of new evidence. However, for the reasons set out below, the determination of Ms Schneekloth’s application does not turn on this omission.
[6]Ibid s 138(2)(a).
An application for reopening must be made within 28 days after the relevant day.[7] “Relevant day” is defined as the day the party is given notice of the decision.[8] Ms Schneekloth’s application was not filed within the time prescribed. The Tribunal may however extend or shorten time limits or waive compliance with procedural requirements under the QCAT Act.[9]
[7]Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (‘QCAT Rules’) r 92.
[8]Ibid Schedule – Dictionary.
[9]QCAT Act s 61.
The first issue for determination is whether the proceeding been heard and determined by the Tribunal. If the answer to this question is “no” then there is no basis for a reopening and Ms Schneekloth’s application must fail.
A “hearing” of a proceeding is defined for the purposes of Division 7 of the QCAT Act as including a compulsory conference for a proceeding if the person presiding over the conference decides the proceeding under section 72(1)(b).[10] Section 72(1)(b) is relevant in circumstances where an adverse decision is made as a result of the non attendance by a party at a compulsory conference.
[10]Ibid s 137.
Hearing does not have a meaning extended beyond the definition at s.137[11]. The final disposition of a matter by consent at a compulsory conference is not a matter “heard and decided by the tribunal”[12].
[11]Bielby v Bielby & McGrath [2010] QCAT 649.
[12]Layne v Samjam Investments Pty Ltd t/as Atkinson Dam Waterfront Caravan Park [2015] QCAT 58.
The original proceeding by Ms Schneekloth against Mullins was finalised by consent at a compulsory conference on 24 April 2015. Accordingly, the matter was not “heard and decided by the tribunal”. It follows that there is no basis upon which Ms Schneekloth can apply for a reopening.
The application for reopening must therefore be dismissed.
It is clear from the material before the Tribunal that Ms Schneekloth’s complaint is one relating to compliance by Mullins with the terms of the consent decision. The Tribunal does not have enforcement powers. Ms Schneekloth must pursue her remedies in another jurisdiction.

Orders

The application for reopening is dismissed.

The parties involved in this case are Schneekloth, the appellant, and James Mullins Constructions, the respondent. The dispute revolves around a construction contract and the appellant's request for the respondent to reopen the case. The Queensland Civil and Administrative Tribunal (QCAT) heard the matter. The appellant sought to reopen the case to address alleged procedural unfairness and new evidence. The respondent opposed the application on the basis that it was not in the interests of justice to allow the reopening.

The legal issues before the Tribunal included whether the application to reopen was made within a reasonable time, whether the application disclosed a matter that warranted the case being reopened, and whether reopening the case would be in the interests of justice. The Tribunal examined the application under the Queensland Civil and Administrative Tribunal Rules 2009, particularly rule 92, which governs the reopening of cases. The appellant needed to demonstrate that the application met the criteria set out in the rules and that it was just and equitable to reopen the case.

The Tribunal found that the application to reopen was not made within a reasonable time and did not disclose a matter that warranted reopening. The Tribunal held that the appellant's new evidence did not change the outcome of the case and that reopening the case would not be in the interests of justice. The Tribunal considered the principles of finality and the importance of parties conducting their cases efficiently and effectively. The Tribunal dismissed the application for reopening and noted that the appellant had not demonstrated that the case should be reopened.

The Tribunal dismissed the application for reopening and made no further orders. The Tribunal emphasised the importance of parties conducting their cases efficiently and effectively and the principle of finality in litigation. The Tribunal found that the application did not meet the criteria for reopening and that it was not just and equitable to reopen the case. The Tribunal also noted that the appellant had not demonstrated that the case should be reopened.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established