Smith v Howard
[2013] QCAT 735
•4 November 2013
| CITATION: | Smith v Howard [2013] QCAT 735 |
| PARTIES: | Stephen James Smith (Applicant) |
| v | |
| Dean Howard (Respondent) |
| APPLICATION NUMBER: | MCDO255-13 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | 4 November 2013 |
| HEARD AT: | Southport |
| DECISION OF: | Adjudicator Trueman |
| DELIVERED ON: | 4 November 2013 |
| DELIVERED AT: | Southport |
| ORDERS MADE: | 1. That the application for reopening is refused. |
| CATCHWORDS: | Minor Civil Dispute – Reopening Queensland Civil and Administrative Tribunal Act 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 (QCAT Act).
REASONS FOR DECISION
Application
Section 138 (1) of the Queensland Civil and Administrative Tribunal Act 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 states 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 15 October 2013 the respondent lodged an application for a 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.
The Applicant provided written submissions. The respondent did not file any submissions to the reopening application.
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 on the respondent filed an application for minor debt on 28 March 2013. The file provides that the respondent could not be personally served with a copy of the claim. The applicant attempted to serve the respondent personally at his home and business. It appeared the respondent was avoiding service and the applicant applied on 7 May 2013 for orders for substituted service. The Bailiff, Mr Seaton provided an affidavit of attempted service sworn on 2 may 2013.
“I called at the given address of the defendant Dean Howard of Unit 4501/323 Bayview Street, Runaway bay, Qld on the following dates and times 8/4/13 at 10.25am no response through the intercom and then on the 11/4/2013 at 1.45pm no response again, then again on the 17/4/2013 I managed to again access through the front gates and I spoke with the managers of the complex…. I know the respondent can seem through the cctv camera and is just avoiding me.”
An order for substituted service was made on 9 May 2013 for service by express mail to the respondent and by email to his email address at ‘fabdock.’
The respondent did not file a response and on 21 June 2013 an application was made for a default decision. An affidavit was filed in support of the request for a decision by default sworn on 21 June 2013 claiming the respondent was served with the claim on 17 May 2013 and claiming the sum of $16,379.00. A default order was made 21 June 2013 for the sum of $16,420.00 being the claim amount and costs of $316.00.
On 5 July 2013 the respondent filed an application to set aside the default decision. The respondent claimed in his submission that he received a copy of the default judgement by post on 26 June 2013. He said he never received the claim by mail until 8 June 2013 due to the applicant not posting it in the correct express post box. The respondent said he never received the claim by email. The response said he obtained legal advice and “believed he had until 6 July 2013 to file a response”.
The applicant filed submissions to the application to set aside the default decision. He stated that the applicant arrange for delivery by express post mail and provided evidence it was in fact delivered on 17 May 2013. The evidence suggests the respondent was incorrect in his submissions that he did not receive the claim until 8 June 2013. The evidence appears to suggest the default order was regularly obtained but for whatever reason an order was made on 8 July 2013 to set aside the default order made on 21 June 2013 and remit the matter for mediation. The parties attended mediation on 10 September 2013, the matter did not settle.
The matter was then listed for a hearing on 3 October 2013 at 2pm.
This notice of hearing was sent to the respondent by mail to his post office box in Runaway Bay. This is the same address where the default decision was sent and to which he has acknowledged he received mail there.
At the hearing on 3 October 2013 the respondent did not attend and a decision was made in favour of the applicant.
The respondent now seeks to have the proceeding reopened on the grounds that he did not receive the notice of hearing. The respondent states in his application for reopening filed on 15 October 2013 that he did not receive the notice to appear at the QCAT hearing as he was overseas. He provided a copy of his boarding passes indicating that he was in Auckland on 24 September and returned 2 October 2013. The hearing was on 3 October 2013. He says that he was overseas for business and was unable to receive notification. The respondent claims he has been away for business and checked his post box prior to going to the airport and had not received any notice. He said he returned to Australia on 2 October 2013 and went to work on a marina on the 3rd of October 2013 to undertake urgent work for a client. He provided an affidavit of James Micallef sworn 15 October 2013 to support that contention. The evidence is clear that the respondent arrived back from his travel overseas the day before the hearing and did not check his post box but instead went to work.
It appears to be that the respondent claims that he did not receive the Notice of Hearing and denies being served with the Notice of Hearing pursuant to rule 38 of the Queensland Civil and Administrative tribunal Rules 2009 (the ‘Rules’).
I do not accept the respondent’s submissions that proper service has not been affected pursuant to rule 38 of the Rules. Rule 38 provides for the service of a minor debt claim. The fact that the applicant received a copy of the order made by default, filed an application to set the default order aside and received a Notice of Mediation, and attended, all sent to the same postal address satisfies me that the claim, previous orders, notice of Mediation and the Notice of Hearing were all sent to the respondent at the appropriate address.
The tribunal record indicates that the Notice of Hearing was served pursuant to rule 39 which allows service by sending the notice by post to the relevant address. The relevant address for the respondent is defined as the post box address at Runaway Bay.
I am satisfied after reviewing the tribunal file that a Notice of Hearing was posted to the relevant address for service being PO Box 1161, Runaway Bay QLD, 4810. An affidavit of service was completed by the registry office stating the Notice of Hearing was posted to both parties.
I find the notice of hearing was served in accordance with the Rules of the Tribunal.
The respondent relies on an excuse that he was overseas in Auckland and absent from the Gold Coast and failed to receive notification of the hearing. Further to this, he states that he can not afford to pay for staff to collect his mail while he was away and that he does not employ a secretary due to his business being “small a with a tight cash flow”. I do not consider this to be a reasonable excuse for not attending the hearing. The respondent was aware proceedings were underway and provided the Tribunal with an address for service for all notices to be sent to.
The Tribunal proceeded to send notification of the Notice of Hearing to the respondent. All notices were sent to the address for service provided by the respondent in his responses and submissions previously filed with the tribunal regarding the setting aside of the default decision.
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 the respondent’s attitude to the claim appears to be one that he gave little importance to dealing with the matter. He had already been granted the indulgence of an interlocutory application to set aside a default decision. I find that the “setting aside order’ was made where there appears to be little merit in the respondents application and his evidence that he received the claim on a later date was contradicted by independent third party evidence by Australia Post. Australia Post provided confirmation of delivery of the claim upon the respondent that indicated the respondent was lying about the date he received the claim. On the evidence it would seem that the default decision should not have been set aside. In any event it was, and now the tribunal is being asked by the respondent again to be indulged with a reopening application due to his direct tardiness in dealing with this matter.
I find from the evidence the respondent was served with a copy of the claim, he said he sought legal advice and I find he would have been advised to file a claim within the requisite time frame. He did not and then sought to blame his lack of knowledge in thinking he had until 6 July to file a response. He claims he did not get the mail until 8 June 2013 yet Australia Post express post confirmation state the mail was delivered to him on 27 May 2013. The fact the respondent did not provide a copy of the envelope with his submissions to prove the date it was delivered to him probably indicates that it was not true. I do not accept his submission in that regard. The respondent returned to Australia the day before the hearing, he should have checked his mail box knowing he had a tribunal matter pending rather than, even on his own evidence, “went to work” because he had an “urgent job” to do. Clearly the respondent’s conduct suggests he considers his work more important than dealing and attending to tribunal matters.
I find that the applicant has failed in his obligations to take care in his dealings with the Tribunal and that his absence from the Gold Coast and overseas travel which resulted in his failure to receive the notice of hearing does not qualify as a reasonable excuse and the application for reopening must therefore be refused.
Order
THAT the application for reopening is refused.
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