De Gee v Wallace [2012] QCAT 469

CITATION: De Gee v Wallace [2012] QCAT 469 PARTIES: Joshua De Gee t/as De Gee Tiling v Mark Wallace t/as Red Dog Builders APPLICATION NUMBER: REO001-12 MATTER TYPE: Building matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Ms Kerrie O'Callaghan, Acting Deputy President DELIVERED ON: 7 September 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. The application to reopen matter BDL204- 11 is granted. CATCHWORDS: REOPENING – where applicant had complied with guillotine order and Tribunal mistakenly dismissed application – where document placed in incorrect file – substantial injustice – opportunity to present case Queensland Civil and Administrative Tribunal Act 2009, ss 137, 139 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 Background [1] On 20 July 2011 the applicant filed this matter with the Tribunal. No affidavit of service was filed. No response was filed. The matter was listed for directions hearing on 6 September 2011, neither party attended. Subsequently I made an order that the applicant was to file with the Tribunal an affidavit of service of the application by 20 September 2011. Further to this, I ordered that if this order was not complied with then the application would be dismissed without further notice. Copies of these orders were sent to the parties. -- 1 of 2 -- 2 [2] On 3 August 2011 I made an order to dismiss the application due to noncompliance with the Tribunal’s order to file an affidavit of service of the application by 20 September 2011. [3] Since the application was dismissed it has come to light that the applicant did file an affidavit of service of the application on 20 September 2011 but this was filed in the incorrect file. [4] On this basis the applicant filed an application for reopening on 10 January 2012. It is this application that the Tribunal now considers. [5] The Tribunal may reopen a matter where: a. A reopening ground exists; and b. The ground can be effectively dealt with by reopening the proceeding.1 [6] There are two grounds for reopening a matter. The applicant’s submissions are relevant to the second ground of reopening, namely a. The party would suffer a substantial injustice if the proceeding was not reopened because new significant evidence had arisen and that evidence was not available when the proceeding was first heard and decided.2 [7] There is now evidence before the Tribunal that the grounds on which the order dismissing the proceedings were made were incorrectly founded. The affidavit of service was filed but was placed in the incorrect file. This information was not available at the time of the decision. [8] The decision to dismiss the proceedings has lead to a substantial injustice as the applicant, through no fault of his own, was not afforded the opportunity to present his case. This injustice can be effectively dealt with by reopening the proceedings, allowing the applicant the opportunity to present his case. 1 Section 139(4) Queensland Civil and Administrative Tribunal Act 2009. 2 Section 137 Queensland Civil and Administrative Tribunal Act 2009. -- 2 of 2 --