The Pot Man Pty Ltd v Reaoch

[2011] QCATA 318

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 for reopening is final and cannot be challenged, appealed against, reviewed, set aside, or called in question in any other way: QCAT Act, s 139(5).

7. Even if that circumstance did not arise, however, there is no basis upon which leave ought to be granted here.  As the QCAT Appeal Tribunal has previously observed[1], a reopening can only be granted if a party has a reasonable excuse for not attending the hearing: QCAT Act, s 137(a). The applicant knew of the hearing date and, although its officers or staff have advanced several explanations for their failure to attend, it is inescapable that they knew of the hearing date and took no appropriate steps in their own interests, including any attempt to seek an adjournment of the hearing.

   [1]        Breezeway Development Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69.

8. As observed in Breezeway, QCAT has statutory obligations to deal with matters in ways that are accessible, economical and quick: QCAT Act, s 3(b). The Minor Civil Disputes jurisdiction is, in particular, one in which the Tribunal has a broad jurisdiction to make orders that it considers fair and equitable including, importantly, orders dismissing an application if it considers that course to be appropriate: QCAT Act, s 13(1).

9. It is common knowledge that the jurisdiction is a busy and demanding one, in which parties are expected to present their own cases, and act in their own interests.  QCAT’s resources for the resolution of disputes serve, as the High Court has recently observed, the public as a whole and not merely the parties to proceedings[2].  The QCAT statutory regime itself places obligations upon parties to take care in their dealings with Tribunal matters and to act in their own best interests. 

   [2]Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 217.

[10] The legislation, and the demands upon public resources which fund QCAT, necessarily impose an expectation and an obligation upon a party that it will ensure that it acts in its own best interests, or accept the consequences. A failure to attend in the circumstances advanced for the applicant here is not, in those contexts, a ‘reasonable excuse’ under QCAT Act, s 137(a).