Young v Matta & Guest
[2015] QCAT 497
•18 November 2015
| CITATION: | Young v Matta & Guest [2015] QCAT 497 |
| PARTIES: | Kate Young Damian Young (Applicants) |
| v | |
| Joshua Matta Emma Guest (Respondents) |
| APPLICATION NUMBER: | MCDO796-15 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Adjudicator Bertelsen |
| DELIVERED ON: | 18 November 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for reopening is refused. |
| CATCHWORDS: | Reopening – reasons for reopening – adjournment request prior to hearing – adequacy of timing and content of adjournment application – parties responsibilities in the absence of adjournment order Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 137 |
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
REASONS FOR DECISION
The initiating application was filed on 15 April 2015. An application by the Respondents to dismiss the application, together with a response were both filed on 11 June 2015. The application to dismiss the initiating application was refused. The application was set down for hearing on 29 September 2015.
In the lead up there were comprehensive orders made on 24 June 2015 with respect to filing and service of evidence to be relied upon. Included in those orders there was an order that a hearing date be fixed for not earlier than 24 August 2015 on notice to the parties. Notices of Hearing were sent to all parties on 31 August 2015 for a hearing date of 29 September 2015. Additionally, in those orders, the Respondents were given leave to attend the hearing by telephone if required ‘but must inform QCAT of their contact details and numbers by no later than 14 August 2015’.
On 8 September 2015 the Respondents emailed the Tribunal indicating they have a ‘work trip scheduled for 20 September for three weeks to Europe for a trade show and road show. I am able to provide proof and details if necessary. Please advise of the process to apply’.
Then on 23 September 2015 an application was received from the Respondents to have the ‘case hearing date deferred’ citing a ‘critical business trip booked in Europe from September 23 – October 9. Both of us will due to travel be indisposed to tend to matters by phone or in person’. The application appended what appeared to be a trade show brochure 25 – 28 September 2015 and a QANTAS departure confirmation for 24 September 2015. The application was referred to the Applicants who objected.
It is unreasonable to make an application for adjournment on 23 September 2015, leave for overseas on 24 September 2015 in the expectation that the Tribunal will simply adjourn the application at the behest of the party applying. This was not an emergency. It was some sort of trade fair, presumably for the benefit of the Respondents.
Even if the email from the Respondent’s to the Tribunal of 8 September 2015 could be construed as some sort of notification of the Respondent’s movements, no application for an adjournment was made until 23 September 2015. At that time, the adjournment application was referred to the Applicants who objected. The adjournment application was dealt with promptly. A Tribunal order refusing the adjournment application was made on 25 September 2015.
Leave to attend by phone had, in any event, been given to the Respondents pursuant to the orders of 24 June 2015. The Tribunal was to be informed of the Respondents intention to attend by phone by 14 August 2015. No notification of intention to attend by phone appears to have ever been received.
The initiating application was heard on 29 September 2015 and a decision made in favour of the Applicants.
On 9 November 2015 the Respondents filed an application to reopen the proceeding stating that ‘Due to work commitments we had to travel to France and the UK during the time of the hearing. I notified the Court that this was the case, including travel documents and relevant flight itinerary etc.’ The travel documents and relevant flight itinerary were constituted by the trade fair brochure and QANTAS outward flight confirmation.
In this instance, an adjournment of the hearing date comes into effect when the Tribunal makes an order adjourning the hearing. No such orders were made. In contrast, an application by the Respondents for adjournment was made on 23 September 2015 appending some limited evidence of travel arrangements, apparently in the expectation that the Respondents could then simply leave the country on 24 September 2015, and in the expectation that the application would automatically be listed for hearing on a future date convenient to the Respondents. In the absence of an adjournment order other avenues were available such as telephone attendance or representation by someone else on their behalf.
Section 137 of the QCAT Act provides two bases for the reopening of an already determined application.
Firstly, did the party have a reasonable excuse for non-attendance? Here there is no proper excuse for non-attendance. An application for adjournment properly supported could have been made much earlier in a timely manner. It was not. Nor did the Respondents avail themselves of alternative modes of attendance. The application for adjournment when finally made was refused promptly in any event.
Secondly, has evidence come to light that was not reasonably available at hearing? That is not a relevant consideration here.
There is no compelling reason here for the application to be reopened and accordingly the reopening application is refused.
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