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 the respondent. The claim was then listed for hearing on 2 October 2012. On 2 October 2012 the applicant did not attend the hearing and a decision was made in favour of the respondent.
The applicant now seeks to have the proceeding reopening on the grounds that she did not receive the notice of hearing. The applicant states in her application for reopening filed on 25 October 2012 that she did not receive the notice to appear at the QCAT mediation until last week due to absence from Townsville for medical reasons. She says the second respondent named in the minor debt claim, Karen Lusk, was keeping her informed of proceedings, however Karen Lusk’s notice was sent to the wrong address so she too was not aware of the mediation on 2 October 2012. The applicant claims she has been away from Townsville on a regular basis both overseas as well as nationally. Twice the applicant refers to the mediation on 2 October 2012 and I have taken this to mean the hearing date scheduled on 2 October 2012.
In written submissions prepared by Shades of Gray Lawyers filed on behalf of the applicant, it was submitted that the applicant did not receive the Notice of Hearing and denies being served with the Notice of Hearing on 2 October 2012 pursuant to rule 38.
I do not accept the applicant’s submissions that proper service has not been affected 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 the applicant filed a response to the minor debt claim on 26 June 2012 makes it evident that she did receive the original claim.
The tribunal record indicates that the Notice of Hearing was then served pursuant to rule 39 which allows service by sending the notice by post to the relevant address. The relevant address is defined as the service address in the entity’s address for service.
The address for service provided by the applicant in Part B of her response to the minor debt claim, filed 26 June 2012, provides the address for service to be PO Box 535, Belgian Gardens, QLD, 4810.
I have reviewed the tribunal record and find that a Notice of Hearing as posted to the relevant address for service being PO Box 535, Belgian Gardens, QLD, 4810. An affidavit of service was completed by the registry office stating the Notice of Hearing was posted on 3 September 2012.
I find the notice of hearing was served in accordance with the Rules of the Tribunal.
The applicant relies on the grounds that she was regularly absent from Townsville and failed to receive notification of the hearing. Further to this, she was relying on the second respondent named in the claim, Karen Lusk, to advise her of the proceedings. I do not consider this to be a reasonable excuse for not attending the hearing. The applicant was aware proceedings were underway and on 26 June 2012 provided the Tribunal with an address for service for all notices to be sent to. The Tribunal proceeded to send notification of the referral to mediation on 3 July 2012, notification of the hearing date on 3 September 2012 and notification of the decision on 9 October 2012. All notices were sent to the address for service provided by the applicant in her response to the minor debt claim.
The applicant states that a week before lodging her application for reopening she did receive notice of the mediation and notice of the decision and yet claims she did not receive the notice of hearing which was also sent to the same address. I note again however that the applicant refers to the mediation date on 2 October 2012 and from this I conclude the applicant is in fact referring to the hearing date of 2 October 2012 and that she did not receive this until a week before lodging her application for reopening because she was absent from Townsville.
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 deals 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 the applicant has failed to take care in her dealings with the Tribunal and that her absence from Townsville resulting in her failing to receive the notice of hearing does not qualify as a reasonable excuse and the application for reopening must therefore be dismissed.

ORDER

Application for reopening is dismissed.