Davana Timber Industries Pty Ltd v Cool [2012] QCAT 201

CITATION: Davana Timber Industries Pty Ltd v Cool [2012] QCAT 201 PARTIES: Davana Timber Industries Pty Ltd v Mr Adrian Cool APPLICATION NUMBER: REO016-11 MATTER TYPE: Other civil dispute matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Mr Jim Allen, Member DELIVERED ON: 15 May 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. The application to reopen matter BDL122- 11 is granted. 2. The Tribunal is to hear and decide all of the issues in the proceeding again. CATCHWORDS: REOPENING – where continuing ill-health of director of Respondent Queensland Civil and Administrative Tribunal Act 2009, ss 136-140 APPEARANCES and REPRESENTATION (if any): The matter was heard and determined on the papers pursuant to s 32 (2) of Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] Mr Cool filed an application in the Tribunal against Davana Timber on 13 May 2011 claiming $49,090.80 in respect of damage allegedly caused by the supply of flooring timber which he claimed was faulty. An amended application was filed on 20 May 2011. Davana Timber did not file a response to the application within the 14 days limited by the Tribunal Rules1. [2] The Tribunal made directions for the progress of the application on 27 July 2011 giving Davana Timber to the 10 August 2011 to file its response to the application. If a response was filed the matter was set down for a 1 Rule 44 of the QCAT Rules 2009. -- 1 of 4 -- 2 compulsory conference on 30 August 2011. If no response was filed by Davana Timber, Mr Cool was directed to file any further statements of evidence by 24 August 2011 and the application was then to be determined on the papers. [3] Davana Timber still had not filed a response to the application by 10 August 2011. A directions hearing was held on 31 August 2011 and the application was listed for an oral hearing on 28 September 2011. Mr Cool was directed to file and serve any further evidence to be relied on at the hearing by 21 September 2011. [4] Davana Timber did not appear at the hearing on 28 September 2011 and the Tribunal delivered its decision on 27 October 2011. The order of the Tribunal was that Davana Timber pay to Mr Cool the sum of $48,070.80 within 21 days. [5] Davana Timber has now filed an application for the proceedings to be reopened2. A reopening application is decided based on the submissions provided by the parties without a hearing and the application may be granted only if the Tribunal considers a reopening ground exists3. [6] There are two reopening grounds set out in the QCAT Act: 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 heard4. [7] The effect of a reopening being granted is that the Tribunal must determine the issues that must be heard and decided again by way of a fresh hearing on the merits5. The Tribunal may then confirm, amend or set aside the Tribunal’s previous final decision and if the decision is set aside then substitute a new decision6. [8] The grounds raised by Davana Timber for the reopening application are that the director of Davana Timber, Mr David Collision had been ill throughout the year since the floods on 10 January 2011. That he has been in and out of hospital for both observation and surgery and that it is believed that he may have picked up a virus when cleaning out his house immediately following the floods. That Mr Collison has separated from his partner, who previously worked in the office for his business, and the business was not able to trade for much of this year. Davana Timbers did not have any office staff at the time and only had casual labour working in the mill so there was no-one to attend to matters on behalf of the company. Mr Collision was not aware of the proceedings being commenced against the company and did not file any material in 2 Section 138 of the QCAT Act. 3 Section 139 of the QCAT Act. 4 Section 137 of the QCAT Act. 5 Section 140 of the QCAT Act. 6 Section 140 of the QCAT Act. -- 2 of 4 -- 3 response. He received a copy of the reasons for decision and wishes to reopen the matter to allow Davana Timber to respond in this matter. [9] Davana Timbers has provided to the Tribunal hospital discharge and appointment summaries which are said to show that Mr Collision spent 30 days in hospital with 19 separate occasions of admissions and had 44 appointments at hospital during the period. Mr Collison’s admissions to hospital commenced on 13 April 2011 and included admissions on 31 August 2011 and 28 September 2011. Mr Collison also had an appointment at hospital on 27 July 2011 which he failed to attend. It is submitted by Davana Timbers that even when Mr Collison has not been in hospital, he has been extremely ill, so ill, that his ability to take part in proceedings has been impaired to such a state that it has rendered him incapable of doing so. [10] Davana Timbers submitted in regard to the merits of the claim that Davana Timbers had never contracted with Mr Cool and the proceedings have been incorrectly brought against Davana Timbers. Davana Timbers had only ever contracted with the builder. It is noted that Mr Cool admits that another person contracted with him and installed the material and so it would be especially unjust and unfair not to allow a reopening of the matter so that a response can be prepared. Further that it was the handling and installation process that was the cause of the issues with the timber and Davana Timber wishes to place evidence before the Tribunal in this regard. There should also be afforded an opportunity to refute the evidence in regard to quantum. [11] Mr Cool in his response to the reopening application stated that Davana Timbers was aware of the issues with the timber flooring from September 2010. That he disputed that marital problems and ad hoc hospital visits could prevent someone from opening their mail. He had not seen any medical evidence which shows the applicant was permanently incapacitated during 2011. The dispute process went on all year without a single response. This was consistent with Mr Collison refusing to answer Mr Cool’s phone calls during 2010 and early 2011, prior to lodging the tribunal claim. That Mr Collison had eventually answered the phone when Mr Cool’s wife rang him from a number, which he did not recognise. And at that time he sent a text saying that he would come to a resolution, but no further correspondence was received. He believes that the only reason why we are hearing from him (Mr Collison) now is because Mr Cool instigated recovery action through the Magistrates Court and the threat of arrest has prompted action. [12] Mr Cool states that the contract for the supply of timber was with him and the builder arranged the order on his behalf as his agent. When the timber was delivered it was to Mr Cool at his home and was paid by him directly. That subsequent to the installation he had discovered that the timber species was not what he had ordered. He says this is evidence of poor quality control and attention to detail. [13] In this case it would appear Mr Collison was in hospital on the day of the hearing. If Davana Timber had participated in the hearing process up to that date and the hospitalisation had been an emergency admission and there was therefore no time to advise the Tribunal of Mr Collison’s inability -- 3 of 4 -- 4 to attend then this would have clearly been a reasonable excuse for not attending the hearing. Mr Cool has submitted that Mr Collison’s ill health should not be taken as a reasonable excuse. [14] The Tribunal is being asked to accept Mr Collison’s overall state of ill- health during the year as constituting a reasonable excuse for not attending the hearing. It is clear that Mr Collison had major health issues which is evidenced by the number of admissions and appointments he had at hospital during the period of the hearing process. The Tribunal accepts these as showing that Mr Collison’s state of ill-health during this period was to such an extent that it totally compromised his ability to participate in the hearing process and constitutes a reasonable excuse for not attending the hearing and a ground for reopening the application. [15] Having found a reopening ground the Tribunal will not give further consideration to the other grounds raised by Davana Timbers. [16] The Tribunal is required to decide the issues which must be heard and decided again. As Davana Timber has not presented any material for the consideration of the Tribunal then all of the issues in respect of the original hearing must be heard and decided again. [17] The application to reopen matter No. BDL122-11 is granted and the tribunal is to hear and decide all of the issues again. -- 4 of 4 --