Zareon Pty Ltd v Communication Design and Management Pty Ltd

[2014] QCAT 540

CITATION: Zareon Pty Ltd v Communication Design and Management Pty Ltd [2014] QCAT 540

PARTIES:	Zareon Pty Ltd (Applicant)
v
Communication Design and Management Pty Ltd (Respondent)

APPLICATION NUMBER: MCDO1480-14

MATTER TYPE: Other minor civil dispute matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Mr Katter, Justice of the Peace (Presiding)
Mr Erwin, Justice of the Peace

DELIVERED ON: 21 October 2014

DELIVERED AT: Brisbane

ORDERS MADE: Application for re-opening is refused.

CATCHWORDS: Minor Civil Dispute – Application for re-opening – “Reasonable grounds” for re-opening

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 (Qld) (QCAT Act).

REASONS FOR DECISION

1. The substantive matter was heard on 3 October 2014. The Applicant did not appear at the hearing. The learned JPs that presided over the matter on 3 October 2014 proceeded to hear and determine the matter in the absence of the Applicant.

2. It was noted by the JPs that:

   a)    The JPs waited fifteen minutes before commencing the hearing;

   b)    The notice of hearing was posted to the parties on 9 September 2014;

   c)    No application for appearance by telephone was contained on file;

   d)    An attempt was made to contact the Applicant by calling the mobile telephone number provided by the Applicant as contained on file;

   e) The learned JPs proceeded to hear the application pursuant to section 93 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”).

3. Mr Cedric DeAir and Mr Jon Lambert appeared on behalf of the Respondent.

4. The application was heard and dismissed on 3 October 2014 pursuant to section 93 of the QCAT Act.

Application to re-open matter

1. The application to re-open the matter was filed by the Applicant on 7 October 2014. A decision was made on the papers on 21 October 2014. Subsequently, written reasons for the decision of 21 October 2014 have been requested.

2. The applicant has provided sworn evidence in the Application that:

   On the 3^rd of October I was late to the QCAT offices, Room 6A, Level 10, 259 Queen Street and subsequently missed the hearing due to an unplanned issue during the release of an IT system which I am intricately involved and primarily responsible for due to the role I have played during the systems development over the past 4 months.

3. Section 139(4) of the QCAT Act 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.

4. A “reopening ground” is defined in Schedule 3 of the QCAT Act as follows:

   for a party to a proceeding, means—

   (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.

5. The Applicant has not provided new evidence in relation to the substantive matter. The remaining question for determination is whether a “reasonable excuse” has been provided.

6. The Applicant’s involvement with the ‘release of an IT system’ is not a “reasonable excuse”.  Work or commercial activities do not constitute a reasonable excuse.  For any party, let alone an Applicant seeking that the Tribunal exercise jurisdiction, to fail to attend at the designated time for hearing on the basis of commercial activities is not justifiable.  The failure to appear on the basis provided represents a waste of the resources of the Tribunal.  There are significant statutory hurdles that must be considered prior to granting an application to re-open.[1]  A decision to re-open will not be made ‘lightly’.[2]

   [1]See Burns v James [2010] QCATA 101.

   [2]See Abrah v Rogers Ottley Pty Ltd [2012] QCATA 69.

7. Accordingly, the application to re-open the matter is dismissed.