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…