Thomas v Hahnon

[2018] QCATA 6

CITATION: Thomas v Hahnon [2018] QCATA 6

PARTIES:	GEOFF THOMAS (Applicant/Appellant)
v
PAUL DAMIEN HAHNON (Respondent)
APPLICATION NUMBER:		APL318-16

MATTER TYPE: Application and Appeals

HEARING DATE: 1 December 2017

HEARD AT: Brisbane

DECISION OF: Justice Carmody

DELIVERED ON: 8 January 2018

DELIVERED AT: Brisbane

ORDERS MADE:

THE APPEAL TRIBUNAL ORDERS THAT:

1.     The application to reopen is allowed.

2.     The order refusing leave to appeal is set aside.

3.     The application for leave to appeal and appeal will be heard on the papers, at a date to be fixed, based on the submissions and materials the parties have already filed.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – REOPENING – where the tribunal’s leave is required for an appeal – where leave to appeal was refused in default of appearance – where the non-appearance was due to a technical error and not the applicant’s fault – whether the tribunal has the power to reopen – where reopening the application for leave to appeal is in the interests of justice  

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 51, 136, 137, 138(5), 138(6), 139(4), 140(2), 140(4), Sch 3

Afrasiabi V Manningham CC [2009] VCAT 1746

Allesch v Maunz (2000) 203 CLR 172

Re Anasis; Ex parte Total Australia Ltd (1985) 11 FCR 127
Tomasevic v State of Victoria [2005] VCAT 1525
Spinosa v Victims Assist Queensland [2017] QCATA 120

APPEARANCES and REPRESENTATION (if any):

APPLICANT/APPELLANT                Self represented

RESPONDENT  Self represented

REASONS FOR DECISION 

1. This is a contested application to reopen leave to appeal proceedings dismissed exparte due to the applicant’s non-appearance at the oral hearing.    

2. On 11 August 2016 the tribunal resolved a minor civil dispute application by making a final order requiring the applicant to pay $781.70 (including filing costs of $108.70) to the respondent by monthly instalments.

3. A party to a proceeding cannot appeal against a decision for a minor civil dispute without first obtaining the appeal tribunal’s leave to do so.[1] 

   [1]QCAT Act s 142(3)(a)(i).

4. The applicant applied for leave to appeal from the decision on unfairness and legal error grounds.

5. The leave application was set down for oral hearing on 12 July 2017.  Both parties were notified and were permitted to appear by phone.  The respondent rang in but the applicant was uncontactable.

6. Accordingly, the application for leave was refused in his absence without hearing or any consideration of the merits.

7. Reopening is dealt with in chapter 2 part 7 division 7 of the QCAT Act which by virtue of s 136 applies to a proceeding other than an appeal that has been heard and decided even though the term ‘proceeding’ in the QCAT Act generally includes one “… relating to an application for leave to appeal to the appeal tribunal.”[2]

   [2]QCAT Act s 8, sch 3.

8. Any remedy for a final order after a full appeal hearing is by application to the Queensland Court of Appeal.

9. The tribunal may grant a reopening application if a stated ground exists and it could be effectively or conveniently dealt with by reopening the proceeding under division 7 whether or not an appeal relating to the ground may also be started.[3]

   [3]QCAT Act s 139(4).

10. The tribunal means QCAT[4] and includes a reference to the appeal tribunal constituted for a proceeding relating to an application for leave to appeal.[5] 

    [4]QCAT Act s 161, 163.

    [5]QCAT Act ss 9(2)(c), 26.

11. A reopened proceeding must re-decide the issues in the proceeding by way of a fresh hearing on the merits[6] and the decision as confirmed, amended or substituted is the tribunal’s final decision in the proceeding.[7]

    [6]QCAT Act s 140(2).

    [7]QCAT Act s 140(4).

12. A reasonable excuse for not attending at a hearing is a reopening ground.[8] 

    [8]QCAT Act sch 3.

13. The applicant was directed to file and serve written submissions and any material in support by 25 September 2017 but for some reason filed a Form 39 on 23 September 2017 instead claiming that despite being available he was not connected to the hearing room as a result of technology problems beyond his control. 

14. The practice in the court system which Professor Forbes submits tribunals should follow is for a default judgment for a monetary payment to be vacated and reconsidered[9] where a good reason is given for non-attendance and the applicant has an arguable case.  If no such reason is provided, the order made in the parties’ absence will not do any injustice.[10]

    [9]SRS Forbes, Justice in Tribunals (Federation Press, 4^th ed, 2014) 171 citing Evans v Bartlam [1937] AC 473.

    [10]Allesch v Maunz (2000) 203 CLR 172 [48]-[50].

15. In Tomasevic v State of Victoria[11] Morris P accepted as “clear enough” the proposition that a “blameless non-attending” party would usually be able to satisfy the reasonable excuse element of s 120(4)(a) VCAT Act but acknowledged that it is a question of fact to be determined by the tribunal on a case by case basis. 

    [11][2005] VCAT 1525 [12].

16. An exparte order made against a party who was duly served but  unavoidably detained or missed the opportunity to be heard due to some fault in the tribunal’s own processes may be set aside.[12]

    [12]QCAT Act s 51; Re Anasis; Ex parte Total Australia Ltd (1985) 11 FCR 127.

17. It can include both human and technical error.[13]

    [13]Afrasiabi V Manningham CC [2009] VCAT 1746.

18. However s 138(5)-(6) QCAT Act explicitly precludes a party from making an application to reopen “in relation to a decision the subject of … an application for leave to appeal … whether or not … the application has been decided.”

19. Properly construed the provision bars a party who has appealed or applied for leave to appeal from trying to reopen the same decision either before or after the appeal tribunal has decided the matter. 

20. This application, by contrast, relates to the refusal of a leave application in default of appearance.  It does not concern “… a decision the subject of … an application for leave to appeal.”  

21. Accordingly, notwithstanding s 138, the applicant is entitled to have his reopening application heard on its merits under ss 136, 139(4) of the QCAT Act.[14]

    [14]cf Spinosa v Victims Assist Queensland [2017] QCATA 120.

22. Alternatively, on the basis that the proposed appeal grounds are not apparently untenable setting the default decision aside is necessary and convenient for exercising the appeal jurisdiction in line with QCAT’s stated objectives.

23. In the circumstances the order refusing leave to appeal will be set aside and a new date fixed for hearing the application on the papers based on the submissions and material the parties have already filed.