Smallwood v Ross Island Hotel - [2012] QCAT 651

CITATION:

Smallwood v Ross Island Hotel [2012] QCAT 651

PARTIES:	Gracelyn Smallwood (Applicant/Appellant)
v
Ross Island Hotel (Respondent)

APPLICATION NUMBER:

MCDO158-12

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

14 November 2012

HEARD AT:

Townsville

DECISION OF:

Susan Warrington, Adjudicator

DELIVERED ON:

14 November 2012

DELIVERED AT:

Townsville

ORDERS MADE:

1. Application for reopening is dismissed.

CATCHWORDS:

Minor civil dispute – Reopening

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

Section 138(1) of the Queensland Civil and Administrative TribunalAct 2009 (the Act) allows a party to a proceeding to apply to the tribunal for the proceeding to be reopened if the party considers a reopening ground exists for the party.
Section 137 of the Act state 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.
On 25 October 2012 the applicant lodged an application for reopening. In accordance with section 139(2) of the Act the parties were allowed 10 days to make written submissions about the application for reopening.
Written submissions were filed by the applicant on 1 November 2012 and by the respondent on 7 November 2012.
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 record indicates that on 28 May 2012 the respondent filed an application for minor debt. A response to the minor debt claim was filed by the applicant on 26 June 2012. On 3 July 2012 the claim was referred to the Dispute Resolution Centre for mediation. The parties were notified that the claim had been referred to mediation and that they would be contacted shortly by the Dispute Resolution Centre to advise them of the mediation date. This notice was sent to the applicant by post to the relevant address provided by the applicant in her response to the claim being, PO Box 535, Belgian Gardens, QLD, 4810. On a date thereafter, the Dispute Resolution Centre sent the tribunal a Certificate of Mediation Outcome dated 28 August 2012 advising the mediation did not occur because they were unable to maintain contact with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] QCAT 651
Decision Date

CaseChat Overview and Summary

In the matter of Smallwood v Ross Island Hotel, the applicant Gracelyn Smallwood sought to reopen a minor debt proceeding against the respondent, Ross Island Hotel. The proceeding was initially heard on 2 October 2012 and a decision was made in favour of the respondent when the applicant failed to attend. On 25 October 2012, the applicant filed an application for reopening, claiming she did not receive the notice of hearing due to her absence from Townsville for medical reasons. The legal issues before the tribunal were whether the applicant's failure to attend the hearing constituted a reasonable excuse for not attending, and whether significant new evidence had arisen that was not reasonably available when the proceeding was first heard and decided.

The tribunal found that the applicant did not have a reasonable excuse for not attending the hearing, as she had provided an address for service and was aware that proceedings were underway. The tribunal noted that the notice of hearing was sent to the address provided by the applicant, and the applicant had received other notices related to the proceeding. The tribunal also found that the applicant's reliance on another party to inform her of the proceedings did not constitute a reasonable excuse. The tribunal emphasised the importance of parties taking care in their dealings with tribunal matters and acting in their own best interests. The tribunal concluded that the applicant had failed to take care in her dealings with the tribunal and that her absence from Townsville did not qualify as a reasonable excuse. Therefore, the application for reopening was dismissed.

The tribunal's decision was based on the evidence presented and the application of relevant legislation and tribunal rules. The tribunal found that the applicant had not provided a reasonable excuse for not attending the hearing and that the application for reopening did not meet the criteria for reopening under the Queensland Civil and Administrative Tribunal Act 2009. The tribunal also noted the importance of finality in litigation and the burden that further action can place on parties and tribunal resources. The tribunal's decision was consistent with the principles of accessibility, economy, and quickness in the resolution of disputes, as well as the obligations placed on parties to take care in their dealings with tribunal matters.

Orders