Currey v Pulik [2014] QCAT 371

CITATION: Currey v Pulik [2014] QCAT 371 PARTIES: Brett Clifford Currey (Applicant) v Stefan Frank Pulik (Respondent) APPLICATION NUMBER: MCD43/14 MATTER TYPE: Residential tenancy matters HEARING DATE: On the papers HEARD AT: Southport DECISION OF: Adjudicator Trueman DELIVERED ON: 2 April 2014 DELIVERED AT: Southport ORDERS MADE: 1. The Application for Reopening filed by the First Respondent on 17 March 2014 is refused. CATCHWORDS: Residential tenancy – reopening Queensland Civil and Administrative Tribunal Act 2009 Queensland Civil and Administrative Tribunal Rules 2009 Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226 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 [1] Mr Brett Currey filed an application on 17 March 2014 seeking leave to reopen the claim following a decision made on 10 March 2014 requiring him to pay to Mr Pulik the sum of $10,066.00. The claim lists Mr Brett -- 1 of 4 -- 2 Clifford Currey as the first named respondent and the second named respondent was listed as Mr Luke Brist Currey. [2] Section 138(1) of the Queensland Civil and Administrative Tribunal Act 2009 (the Act) permits a party to a proceeding to apply to the tribunal for the proceeding to be reopened if the party considers a reopening ground exists. [3] Section 137 of the Act states that the definition of a reopening ground, 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 substantial injustice if the proceeding was not reopened because significant new evidence has arisen and that the evidence was not reasonably available when the proceeding was first heard and decided. [4] Section 139 of the Act gives the tribunal the power to grant an application for reopening only if the tribunal considers a reopening ground exists for the applicant party; and 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. [5] The applicant has lodged an application for reopening. In accordance with section 139(2) of the Act, the parties were allowed to make written submissions about the application. [6] Written submissions were filed by the applicant on 17 March 2014 and by the respondent on 28 March 2014. I have read the submissions and I am satisfied that the application for reopening can be effectively dealt with on the papers without a hearing. [7] The tribunal file indicates that on 7 January 2014 the respondent filed an application for minor civil dispute, a residential tenancy matter claiming compensation of rental arrears. The matter was heard with claim 1676/13 involving the same parties and an urgent application for a termination order and warrant of possession. The matter was listed for 29 January 2014 for hearing and the applicant appeared. The claim was amended by including another tenant to the claim, Mr Brett Currey. The matter was adjourned to 14 February 2014 where Mr Currey appeared. [8] On the two prior occasions the applicant was notified that the claim had been listed for a hearing and the notice was sent by post to the relevant address provided by the applicant at an address at Nerang. It is clear that the applicant was receiving this mail as he appeared on two occasions when the matter was adjourned. The matter was then listed for hearing on 10 March 2014. The applicant did not attend the hearing and a decision was made in favour of the respondent. [9] The applicant now seeks to have the proceeding reopening on the grounds that he could not attend the hearing as he was caring for his -- 2 of 4 -- 3 elderly parents who had just been in hospital. He claims that the demand of caring for his parents on the day of the hearing prevented him from attending the hearing in person. [10] I do not accept the applicant’s submissions that he could not attend the hearing due to the fact that he was caring for his parents. He did not present any evidence to the tribunal to support his contention. The applicant could have applied to the tribunal to appear at the hearing by telephone or he could have requested an adjournment if he had bona fide reasons for not being able to attend. He did not exercise any of those options. The applicant accepts that he received the Notice of Hearing but did not do anything to notify the tribunal of his alleged inability to attend. [11] I am satisfied that the proper service of the Notice of Hearing has been affected pursuant to rule 38 of the Queensland Civil and Administrative Tribunal Rules 2009 (the Rules). Rule 38 provides for the service of a minor debt claim. The fact that the applicant appeared at the tribunal on prior occasions makes it evident that he did receive the original claim, the notices of hearing and the order that was made on 10 March 2014. [12] The Notice of Hearing was sent to the applicant on 7 February 2014 advising him that the matter was listed for hearing on 10 March 2014 at 11am. The applicant had ample opportunity to make alternative arrangements if he was unable to appear at that time. [13] The applicant has not provided any evidence that would warrant the matter being reopened. The Tribunal has a statutory obligation to deal with matters in ways that are accessible, economical and quick. The Act places obligations upon parties themselves to take care in their dealings with Tribunal matters and to act in their own best interests. [14] In Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226 at [13] the tribunal expressed the importance of parties taking care in their dealing with Tribunal matters stating: The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interest. QCAT resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, ... the public as a whole, not merely the parties to the proceedings. Finality in litigation is highly desirable, because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties. [15] I find that the applicant has failed to take proper action in his dealings with the Tribunal and that his excuse of caring for his elderly parents do not in my view constitute a reasonable excuse for him failing to appear at the hearing. As noted he could have appeared by telephone, he could have requested an adjournment, he could have relied on the second respondent Luke Currey to appear on his behalf and or he could have requested leave to be represented by a third person if he could not attend in person on the date of the hearing. None of those options were taken up -- 3 of 4 -- 4 by the applicant. I do no accept caring for elderly parents, in the absence of any evidence about that fact, as a reasonable excuse and the application for reopening must fail and be refused. [16] I propose to make the following order: 1. THAT the Application for Reopening filed by the First Respondent on 17 March 2014 is refused. -- 4 of 4 --