Voiceworks Australia Pty Ltd v Astor Hotel Motel Pty Ltd
[2011] QCAT 703
•30 November 2011
| CITATION: | Voiceworks Australia Pty Ltd v Astor Hotel Motel Pty Ltd [2011] QCAT 703 |
| PARTIES: | Voiceworks Australia Pty Ltd |
| (Applicant) | |
| v Astor Hotel Motel Pty Ltd (Respondent) |
| APPLICATION NUMBER: | MCDO3653-10 |
| MATTER TYPE: | Other minor civil disputes matters |
| HEARING DATE: | 3 August 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Paul McGrath, Member |
| DELIVERED ON: | 30 November 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. That the Application to reopen the decision of the Tribunal of 9 June 2011 is dismissed. |
| CATCHWORDS: | Minor Civil Dispute – Failure of Applicant to attend Mediation conference – Dismissal of Application by Tribunal in default of attendance – Application to reopen – Whether Applicant had grounds to reopen |
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
This application was decided on 3 August 2011. The applicant has requested written reasons for the decision. These are the reasons.
This is an application brought by Voice Works Australia Pty Ltd for a reopening of the application brought initially by the applicant against the respondent, the Astor Hotel Motel Pty Ltd.
The application was originally filed in the Tribunal on 24 December 2010 by which the applicants sought the payment of an amount of $603.58 for monies owing pursuant to an agreement between the applicant and the respondent for which the applicant would rent to the respondent Intelligent Messaging Equipment required to play music and messages on hold (the on hold equipment).
The applicant stated in its claim that there was an invoice dated 12 March 2010 for a late payment of an overdue invoice of $33.00. An invoice dated 22 July 2010 for advertising on hold agreement from the period of 6 August to 6 November 2010 of $285.29 and an invoice dated 22 October 2010 for advertising on hold agreement paid in advance for the period 6 November 2010 to 6 February 2011 of $285.29. Total amount claimed therefore $603.58 plus the filing fee of $51.00 making a total claim of $654.58.
On 13 February 2011 the respondent filed a response in the Tribunal. It stated that any agreement between the parties as at 2 October 2009 was terminated by the respondent’s written notice to the applicant dated that date, and that if any on hold service of the applicant remains operational on the respondent’s telephone services that the applicant terminate such service and remove any equipment of the applicant from the respondent’s premises in conjunction with the respondent’s nominated contractors to ensure no disruption to the respondent’s telephone service.
The respondent further states in its response that there was a failure to comply with the terms of the agreement and that the parties agreed to terminate this service on 2 October 2009 as confirmed in the terms of the respondent’s letter to the applicant of that date.
The matter was listed for mediation on 9 June 2011 at 2pm. On that occasion whilst the respondent attended the applicant did not attend. In accordance with the note to parties on the Notice of Mediation that indicates that “If you do not attend the mediation then the application may proceed immediately to a hearing” the matter was referred to a Member sitting in the Minor Civil Disputes list on the afternoon of 9 June 2011 and the application was dismissed.
An order to that effect was sent to both parties on or about 10 or 11 June 2011.
By letter received by the Tribunal on 30 June 2011 the applicant’s representative indicated that he had called the registry of the Tribunal on 9 June and was advised that as he had called, that was sufficient as mediation can be conducted by telephone. He stated that he was advised in a further call that afternoon that the matter would be set down for a hearing and notification of the hearing would be received in approximately 2-3 weeks.
The applicant subsequently filed an application to reopen the matter on 11 July 2011 and on 18 July the Tribunal waived the requirement for the applicant to pay a fee to file the application to reopen the matter and ordered that a copy of the application to reopen be provided to the respondent.
In the application to reopen the applicant states that he was advised, in the phone call to the registry on 9 June 2011, that this matter would be listed for hearing because the respondent had failed to appear at the mediation and that it was not necessary for the applicant to attend the mediation as they (the applicant) had telephoned. The applicant attached to the application a page from an Optus telephone account with a call to the QCAT 1300 number highlighted at 1.42pm. The respondent had until 1 August to file a written response.
On 29 July 2011 the respondent by letter forwarded to the Tribunal set out the grounds upon which the respondent relied in opposing the application to reopen.
The letter states that the representative of the respondent arrived at the venue of the mediation at approximately 1:45 and spoke with two female officers advising of his attendance. In response to the applicant having claimed to have phoned QCAT at 1:42pm, the respondent states that the applicant has given no reason why he would be phoning the QCAT office at that time when an appearance by both parties was required at 2pm. The respondent contends that the explanation of the applicant is implausible and a fabrication.
There was no request by the applicant, or anyone on its behalf, to attend the mediation by way of telephone link. It is doubtful that if the Tribunal staff were aware that there was a mediation scheduled, that they would inform the applicant, 15 minutes before the mediation was scheduled to commence, that he need not attend and that the matter would be listed for a future hearing. It is also doubtful that the applicant would be advised that the respondent had not attended the mediation when in fact the respondent was in attendance.
The respondent also contends that the applicant’s prospect of success must be taken into account on the reopening. The respondent states that this a claim by the applicant for services allegedly provided subsequent to the applicant receiving written notification of a cancellation and removal of the services.
Section 138 of the QCAT Act 2009 provides as follows:
(1) A party to a proceeding may apply to the tribunal for the proceeding to be reopened if the party considers a reopening ground exists for the party.
(2) The application must—
(a) state the reopening ground on which it is made; and
(b) be made within the period and in the way stated in the rules; and
(c) be accompanied by the prescribed fee (if any).
Section 139 states that:
(3) The tribunal—
(a)must consider any written submissions made under subsection (2) about the application; and
(b)may decide whether or not to reopen the proceeding entirely on the basis of documents, without a hearing or meeting of any kind.
Subsection 4 of section 139 states:
(4) The tribunal may grant the application only if the tribunal considers—
(a)a reopening ground exists for the applicant party; and
(b)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.
Reopening grounds are defined in section 137 of the QCAT Act to mean –
(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 a substantial injustice if the proceeding was not reopened because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard and decided.
The Tribunal is of the view that the applicant was notified of the mediation time and place and chose not to attend the mediation. The applicant made no request to appear at the mediation by telephone or other means. The respondent attended the mediation in good faith prepared to discuss and negotiate the application with the respondent. The Member to whom the matter was referred following the non appearance by the applicant at the mediation was well within his rights to dismiss the application. The Tribunal is of the view that the applicant has given no grounds that would justify a reopening of the application and accordingly the application to reopen is dismissed.
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