Wilson v Allman
[2012] QCAT 275
•15 June 2012
| CITATION: | Wilson v Allman [2012] QCAT 275 |
| PARTIES: | Ms Beau Wilson (Applicant) |
| v | |
| Mr Luke Allman (Respondent) |
| APPLICATION NUMBER: | MCDO2691-11 |
| MATTER TYPE: | Other minor civil disputes matters |
| HEARING DATE: | 15 June 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | J Bertelsen, Adjudicator |
| DELIVERED ON: | 15 June 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The reopening application is refused. |
| CATCHWORDS: | Application to reopen – where respondent did not attend hearing – where respondent’s insurer had subrogated respondent’s rights – subrogation matter between respondent and insurer – no obligation on applicant to notify respondent of hearing date – where no application for representation made by respondent’s insurers’ solicitors and no grant of representation made – no obligation on Tribunal to notify respondent’s insurers’ solicitors of hearing date Queensland Civil and Administrative Tribunal Act 2009, s 138 |
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
Application for reopening of decision delivered 17 January 2012
By application for minor civil dispute – consumer dispute filed 1 September 2011 the applicant sought damages as a result of a traffic incident that took place on 30 March 2011 at the intersection of Turpin Road and Central Street, Labrador. The applicant’s vehicle was driven at the time by her husband, Felipe Drumond.
At the time the applicant’s driver was headed south on Turpin Road towards Central Street. The respondent was headed east on Central Street towards Turpin Road.
The application was served by post on the respondent on 8 September 2011 and on the respondent’s insurer, AAMI, on the same day. Mediation was set for 12 December 2011.
By application for miscellaneous matters filed 22 November 2011 the applicant requested that mediation be dispensed with and that the application be referred directly to hearing. This application was prompted by solicitors Rodgers Barnes & Greene letter of 4 November 2011 to the applicant pointing out that “AAMI have subrogated our client’s rights under the claim” and requesting the applicant’s “consent to the dispensing of the mediation and listing the claim for hearing”. On 23 November 2011 the Tribunal ordered, “the matter be set down for hearing without requiring mediation”.
On 8 December 2011 notices of hearing were sent to both applicant and respondent directly nominating 17 January 2012 as the hearing date. The applicant appeared at hearing, the respondent did not. The circumstances of the incident were traversed in detail particularly, but not limited to, the direction each vehicle was travelling appropo each other, speed and weather conditions. The Tribunal decided in favour of the applicant.
The two bases on which an application can be reopened are set out in section 137 of the QCAT Act and are:
(a)the party did not appear… and had a reasonable excuse for not attending the hearing; and
(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.
There is nothing in the respondent’s submission that suggests that (b) was the case. Rather, in terms of section 137, the respondent states that he, “did not receive a notice of the date of the hearing until 15 February 2012”.
The notice of hearing was posted by ordinary mail to the respondent on 8 December 2011. It was mailed to the same address as the mediation notice. The respondent was absent from Australia from 16 December 2011 to 26 January 2012 immediately on his return moving interstate to Victoria. There was never any return of mail nor any suggestion of non delivery of the mail containing the notice of hearing for 17 January 2012.
No application for representation was made by the respondent’s insurers’ solicitors, Rodgers Barnes & Greene, let alone any grant of representation made. The parties were self represented. There was never any requirement that the applicant notify the respondent of a hearing date and certainly no obligation on the part of the Tribunal to notify the respondent’s insurers’ solicitors.
The fact that the respondent had subrogated his rights to his insurer AAMI is a matter as between those two parties and in no way affected the applicant’s right to proceed against the driver of the other vehicle involved in the accident ie the respondent.
The respondent asserted a satisfactory explanation for failure to defend, no unreasonable delay in the application to set aside and a prima face defence on the merits. These are collectively issues more appropriately considered in an application to set aside a Tribunal default decision entered, in the absence of a response, in a minor civil dispute minor debt application which this is not.
It is clear that the protagonist for speedy resolution was the respondent more so than the applicant. That accords with the respondent’s insurers’ solicitors' settlement suggestion as outlined in correspondence of 5 October 2011 and that solicitors’ firm’s suggestion to dispense with mediation in correspondence of 4 November 2011.
No response was ever filed by the respondent or by the respondent’s insurers’ solicitors in circumstances where it was clearly articulated in October 2011 that it was considered by the respondent’s insurer’s solicitors that the applicant was primarily at fault.
The Tribunal finds the respondent’s assertions as to non notification in the above circumstances to be both disingenuous and improbable. The respondent’s insurer’s solicitors who had effective control of settlement efforts and pursued prompt resolution were not and made no application to be placed on record such as to enable them to be informed of progress of the primary application. If the respondent absented himself from Australia at a time his insurer’s solicitors were actively pursuing prompt resolution and failed to inform them then that may well be a matter as between insured and insurer. The Tribunal refuses the application to reopen the proceeding.
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