The Pot Man Pty Ltd v Reaoch

CITATION: The Pot Man Pty Ltd v Reaoch [2011] QCATA 318

PARTIES:	The Pot Man Pty Ltd t/as De Pot Man (Applicant/Appellant)
v
Gary Reaoch t/as Cooroibah Park Landscapes (Respondent)

APPLICATION NUMBER:   APL300-11

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON: 24 November 2011

DELIVERED AT: Brisbane

ORDERS MADE:      Leave to appeal refused.

CATCHWORDS: 

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – REOPEN PROCEEDINGS – Where a Magistrate refused to reopen proceedings – Where Magistrate’s decision is final – Where the applicant seeks leave to appeal – Whether leave should be granted

Queensland Civil and Administrative Tribunal Act2009, ss 3(b), 13(1), 137(a), 139(5)

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, applied
Breezeway Development Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69, cited

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. The Pot Man Pty Ltd (trading as ‘De Pot Man’) brought proceedings against Mr Reaoch claiming $10,301.75 said to be owed for the sale of goods.  Mr Reaoch denied that he had agreed to pay for the goods.

2. The matter was listed in QCAT’s Minor Civil Disputes jurisdiction before a Magistrate, sitting as a QCAT Member, on 3 June 2011.  No one appeared on behalf of The Pot Man and the learned Magistrate struck out the application.

3. Mr Drew Camm then filed an application for reopening, claiming that he was trading as ‘De Pot Man’.  In the application the reason for the non-appearance at the hearing before the Magistrate of any person on behalf of De Pot Man was said to be financial difficulties which had led to De Pot Man laying off two staff members, and Mr Camm’s ill health with the flu at the time of the hearing with the result, as Mr Camm wrote in his application for reopening, that ‘… the case date was forgotten in this turmoil’.

4. The application for reopening came before another Magistrate on 1 July 2011.  The hearing was attended by Mr Maciej Radomyski on behalf of De Pot Man.  Mr Reaoch again attended.  As the recording of that hearing shows, Mr Radomyski frankly conceded that staff at De Pot Man knew of the earlier hearing on 3 June but he himself was unwell and under some strain, and had staff problems. 

5. Upon questioning from the learned Magistrate he admitted that no one from De Pot Man had contacted the Tribunal advising of these things, or seeking an adjournment.  The learned Magistrate concluded that De Pot Man had known of the date of the original hearing and had no reasonable excuse for its failure to attend, and refused to reopen.

6. The first difficulty confronted by De Pot Man in its application to this Appeal Tribunal is that the Magistrate’s earlier decision on the application…