DeBruin v Sanadee Enterprise Pty Ltd [2012] QCAT 524

CITATION: DeBruin v Sanadee Enterprise Pty Ltd [2012] QCAT 524 PARTIES: Paul DeBruin t/as Sunrise Erections Qld v Sanadee Enterprise Pty Ltd t/as Totalspan Capalaba APPLICATION NUMBER: MCDO57-11 (Beenleigh) MATTER TYPE: Other minor civil disputes matters HEARING DATE: 3 September 2012 HEARD AT: Beenleigh DECISION OF: Paul Favell, Member DELIVERED ON: 3 September 2012 DELIVERED AT: On the papers ORDERS MADE: Application to reopen refused. CATCHWORDS: Minor Civil Dispute – Application to reopen 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 [1] Paul DeBruin t/as Sunrise Erections applied to the Tribunal for an order that the Respondent, Sanadee Enterprises Pty Ltd t/as Total Span Capalaba pay the Applicant the sum of $3,894.01 together with the filing fee of $92.00 and a service fee of $38.50 and a business name or company search fee of $44.00. The claim was based upon work done in performing minor construction works at a number of sites in Queensland. [2] A request for a decision by default was filed on 5 April 2011. On 5 April 2011 the Tribunal ordered that the Respondent pay the Applicant $4,189.24. On 4 May 2011 the default order was set aside and the original matter was listed for hearing. -- 1 of 4 -- 2 [3] On 27 May 2011 when the matter was called on for hearing, it was adjourned for 25 July 2011. On that day, the hearing of the matter (on the papers) was adjourned to 11am on 5 September 2011 and directions were made such that the Applicant was to provide a statutory declaration detailing the substance of the Applicant’s claim and the Respondent was to provide an affidavit detailing his response. [4] On 5 September 2011 the Tribunal ordered the matter to be adjourned to the next available date at 11am and made further directions. On 24 October 2011 the application was dismissed. On 21 November 2011 a reopening was granted and the order dated 24 October 2011 was set aside. The matter was relisted for the next available date. [5] On 12 March 2012 the application was heard and it was ordered that the Respondent pay the Applicant $4,562.01. [6] On 26 March 2012 an application was made to reopen for the reason that the Respondent did not attend the hearing because, he said, he was previously informed on 25 July 2011 that without his attendance the hearing will be heard. He says until that day he attended all the hearings and the Applicant did not attend any of the hearings prior to 12 March 2012. He says that the magistrate (sic) informed him without his presence the matter could be heard and because of that he did not attend the hearings. He says he thought that his presence was not needed as the decision given to him by the magistrate (sic) on 25 July 2011 was still valid. [7] On 2 April directions were made that the hearing of the application for the rehearing be relisted. [8] On 27 June 2012, the Tribunal directed that each party file written submissions concerning the reopening application by 4pm 20 July 2012 and ordered that the application to reopen then be determined on the papers. Those submissions have been provided. [9] The Respondent says: “the reason I did not attend the hearing on 12 March 2012 was that on 25 July 2011 the magistrate informed me that my attendance was not needed and the matter can be heard without my presence. After this date I did not attend as I took the advice given to me by the magistrate on 25 July 2011. I did not attend the hearing on 12 March 2012 and due to this the magistrate gave the decision in favour of Mr Debruin. If I knew that my presence was required on this day I would have rearranged my prior commitments with the chance to attend this hearing.” [10] The Respondent then sets out what he says are reasons, why, if the matter is not reopened he will suffer financial difficulties. He puts forward a number of facts. Essentially, the Respondent alleges that the claim made by the Applicant is in respect of work that was done, which was work required to correct mistakes made by the Applicant. He says that he -- 2 of 4 -- 3 should not be responsible for paying for the Applicant to rectify his mistakes. [11] The Applicant points out that the notice of hearing provided to the parties has the sentence, “if you do not attend the hearing, the Tribunal may hear and decide the matter in your absence including making orders against you.” The Applicant says that the decision that was made on 12 March 2012 is fair and reasonable and that both sides had at least 10 weeks warning for the hearing. He says that at that date all evidence was examined in great detail. [12] Much of the material supplied by the Respondent on the appliaction to reopen was supplied to the Tribunal on 23 September 2011. That material made out the claim now made again by the Respondent. [13] Those matters were taken into account when the decision now sought to be reopened was made. [14] Section 138 of the Queensland Civil and Administrative Tribunal Act 2009 allows a party to a proceeding to apply to the Tribunal for the proceeding to be reopened if the party considers a reopening ground exists for the party. The application must state the reopening ground on which it is made and be made within the period in the way stated in the rules and accompanied by the prescribed fee. The party must give a copy of the application to each other party to the proceeding. [15] A “reopening ground” for a party to the proceeding is defined in s 137 to mean: a) “the party did not appear at the hearing 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 reasonable available when the proceeding was first heard and decided.” [16] Section 139 requires each party to the proceeding to be given an opportunity to make written submissions about the application. That has occurred. [17] The Tribunal is required to consider any written submissions about the application and may decide whether or not to reopen the proceeding entirely on the basis of documents without a hearing or meeting of any kind. [18] The Tribunal may grant the application only if the Tribunal considers a) a reopening ground exists for the applicant party; and -- 3 of 4 -- 4 b) the ground could be effectively or conveniently dealt with by reopening the proceeding under Division 7, whether or not in appeal under Part 8, relating to the ground may also be started. [19] I am not satisfied that the Respondent had a reasonable excuse for not attending the hearing. On his reasoning it seems he made a choice not to attend as he was told that if he did not attend, the hearing could be had. [20] I am not satisfied that the Respondent will suffer a substantial injustice if the proceeding is not reopened. There does not seem to be any significant new evidence and it seems to me the evidence relied on by the Respondent was available and considered when the proceeding was heard and decided. [21] The Tribunal had before it the material filed on behalf of the Respondent which material has been repeated in this application. [22] In the circumstances the application to reopen the proceeding is refused. -- 4 of 4 --