Wiperi v Queensland Building Services Authority
[2013] QCAT 156
| CITATION: | Wiperi v Queensland Building Services Authority [2013] QCAT 156 |
| PARTIES: | Nicholas John Wiperi (Applicant) |
| v | |
| Queensland Building Services Authority (Respondent) |
| APPLICATION NUMBER: | REO002-13 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Susan Gardiner, Member |
| DELIVERED ON: | 4 April 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The application to reopen OCR269–12 is granted. |
| CATCHWORDS: | REOPENING – OCCUPATIONAL REGULATION MATTER – NEW EVIDENCE – where there was an application to be categorised as a permitted individual – where guillotine order made – where applicant failed to file material or apply for an extension of time by date of compliance in directions – where application dismissed – where reopening sought for failure or mistake of a third person although evidence reasonably available – where, substantial injustice if significant new evidence not considered Queensland Civil and Administrative Tribunal Act 2009 (Qld), s136, s 137, s 138, s 139, s140 |
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
Nicholas Wiperi filed a review of a decision of the BSA not to be categorised as a permitted individual in August 2012.
After the filing of review, QCAT issued directions with time limits for the service of the review, the filing of subsequent documents by each party and the conduct of a conciliation conference.
In response to the directions, the BSA filed its documentation in October 2012. In November 2012, the BSA wrote to QCAT saying Mr Wiperi had not complied with the directions and requested that Mr Wiperi be directed to file his statement of evidence or failing this, that the matter be dismissed. The BSA sent a copy of this letter to Mr Wiperi by email.
QCAT made the following further directions on 27 November 2012:
1)Mr Nicholas John Wiperi must file two (2) copies in the Tribunal and give to the Queensland Building Services Authority one (1) copy of any statements of evidence, by:
4:00pm on 12 December 2012
2)If Mr Nicholas John Wiperi does not comply with paragraph number one (1) of these Directions then the Application to review a decision will be dismissed without further notice to the parties.
From the Tribunal’s point of view, nothing else then happened. Mr Wiperi filed no further documents and on 20 December, QCAT dismissed the review.
Mr Wiperi now seeks to re-open the review application. Mrs Wiperi says on 3 December she contacted the BSA to talk about extending the filing time of Mr Wiperi’s documents further. Mrs Wiperi says it took until 10 December to talk to the relevant BSA officer and that on 13 December she sent a consent application signed by Mr Wiperi for an extension. Mr Wiperi says the BSA signed this and returned it to his wife.
What Mrs Wiperi did not then do is send the consent application to QCAT. Mrs Wiperi says she did not know she had to and the BSA did tell her he had to do this until after QCAT made the dismissal order. Mr Wiperi says they thought the consent of the BSA was enough to get the extension of time.
Ms Kirsty Stewart, on behalf of the BSA has a different memory of these events. She says Mrs Barbara Wiperi contacted her after hours on 3 December 2012 after the second directions were made. Ms Stewart says she returned the call to Mrs Wiperi on 6 December and she explained the extension process to Mrs Wiperi, directing her to the QCAT website for the appropriate form.
Ms Stewart says Mrs Wiperi asked her where she would need to send the form and that Ms Stewart gave her the facsimile number used by the BSA to fax to QCAT. Ms Stewart provides a file note of this conversation.
Ms Stewart says the BSA received the consent form from Mrs Wiperi on 13 December 2012 by email and that same day returned a letter to Mrs Wiperi by email consenting to the extension. The second page of the BSA letter informed Mrs Wiperi that the second page of her consent application had not been received by the BSA in the scanning, but that the BSA thought that the letter sent to her would satisfy QCAT’s requirements.
The proposed extension for Mr Wiperi’s documents was until 7 January 2013. On that day, Ms Stewart says Mrs Wiperi emailed Ms Stewart trying to provide large documents to her. By then QCAT had dismissed the review. Mrs Wiperi told Ms Stewart she had not received the QCAT order. Mrs Wiperi also told Ms Stewart she had not filed the consent application to extend the time for her husband’s documents.
An application to reopen is made under s 138 of the QCAT Act. The applicant must state the reopening ground for the application[1]. Mr Wiperi does not state his re-opening ground. Impliedly, it is the ground set out in the definition of reopening ground found in s137(b) of the QCAT Act. This is because Mr Wiperi implies he would suffer a substantial injustice because significant new evidence has arisen and that evidence was not reasonable available when the proceeding was first heard and determined.
[1] Queensland Civil and Administrative Tribunal Act 2009, s138(2)(a).
Mr Wiperi says he did not realise QCAT”s consent was required to extend the filing times. On the evidence, I am reasonably satisfied that while Mr Wiperi says he did not know, his Wife did. It is apparent from the documented evidence of the BSA that Mrs Wiperi was informed of the necessary steps to obtain an extension of time. It appears that she was acting on Mr Wiperi’s behalf during this period. It may have been a misunderstanding as Mrs Wiperi suggests but I am satisfied the BSA she told of her obligations concerning the need for a QCAT consent order.
It was due to Mrs Wiperi’s inaction that the hearing proceeded before the senior member on 20 December 2012 in the absence of any material filed on behalf of Mr Wiperi resulting in the dismissal of his application.
The BSA’s refusal to allow Mr Wiperi to be a permitted individual has a substantial impact on Mr Wiperi’s ability to earn his living. It is unreasonable in my view, to hold Mr Wiperi out of his application because of the inaction or mistake of a third person in such a matter. Had the evidence been available to the senior member potentially another determination may have been made. Also, the BSA were agreeable to an extension of time and therefore there can be no prejudice to if it the application is reopened.
So, while Mr Wiperi’s evidence was reasonably available when the proceeding was first heard and determined, I am satisfied in these circumstances, that Mr Wiperi will suffer a substantial injustice if this significant new evidence is not considered.
I will grant the re-opening of OCR matter 269–12. Mr Wiperi is now aware that any further non-compliance with directions of this Tribunal, in the absence of a QCAT order varying compliance dates, is potentially fatal to his application.
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