Botros v Auspro Removal Pty Ltd [2019] QCAT 126

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Botros v Auspro Removal Pty Ltd [2019] QCAT 126 PARTIES: MONA BOTROS (applicant) v AUSPRO REMOVAL PTY LTD (respondent) APPLICATION NO/S: MCD1104/18 MATTER TYPE: Other minor civil dispute matters DELIVERED ON: 2 May 2019 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Mclean Williams ORDERS: Application for re-opening granted. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS – OTHER MATTERS – where application for reopening made by respondent REPRESENTATION: Applicant: Self-represented Respondent: Self-represented APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). REASONS FOR DECISION [1] On 4 December 2018, judgement was given for the Applicant in MCD1104/18 in circumstances where there was no appearance before the Tribunal on the date scheduled for the hearing by the Respondent. [2] An Application for reopening, correction, renewal or amendment was then filed by the Respondent, Auspro Removal Pty Ltd on 2 January 2019. In that Application the Respondent complained that they had applied on 30 November 2018 to attend at the original hearing by telephone, and that leave to appear by telephone had been granted by the Tribunal just prior to 4 December 2018. Despite then waiting by the phone on 4 December 2018 there was no phone call from QCAT on 4 December 2018 on the telephone number that had been nominated by the Respondent. -- 1 of 2 -- 2 [3] On 15 February 2019 an order was made by me granting the application for a reopening, further directing that the matter be re-listed for hearing on a date to be fixed by the Tribunal (‘the reopening decision’). In effect, that is an order vacating the original order that had given default judgement to the Applicant, and now requiring that the matter be re-determined by the Tribunal, after hearing from both parties. [4] More recently, the Applicant has requested written reasons for the re-opening decision. These now are my written reasons for the reopening decision as previously made by me on 15 February 2019. [5] Examination of the file by me on 15 February 2019 revealed that the Respondent had been given leave by the Tribunal - very shortly prior to 4 December 2018 - to appear by telephone, yet that fact had not been relayed to me as the Presiding Tribunal Member on 4 December 2018. In those circumstances it was not fair to the Respondent for the Tribunal to proceed to judgement and the matter should not have been determined on the basis of an apparent failure by the Respondent to appear before the Tribunal, when the Respondent was at all times ready, willing and able to appear by telephone, and in circumstances where it asserts that it has a proper defence to the claim. -- 2 of 2 --