Davis v Blocksidge [2012] QCAT 211

CITATION: Davis v Blocksidge [2012] QCAT 211 PARTIES: Anthony Davis (Applicant/Appellant) v Michael David Blocksidge (Respondent) APPLICATION NUMBER: REO002-12 MATTER TYPE: Building matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Michelle Howard, Member DELIVERED ON: 15 May 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. The applications filed by Anthony Davis for reopening and for leave for legal representation are dismissed. CATCHWORDS: APPLICATION FOR REOPENING – where applicant alleges reasonable excuse for not attending hearing – where given notice – where applicant alleges substantial injustice because new evidence – where no new evidence Queensland Civil and Administrative Tribunal Act 2009, ss 5, 43, 47, 48, 137, 139 Aon Risk Services Australia Limited v Australian National University [2009] 239 CLR 175 Breezeway Developments Pty Ltd v AND Hydraulics Pty Ltd [2010] QCATA 69 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). -- 1 of 6 -- 2 REASONS FOR DECISION [1] Mr Davis has filed an application to reopen a proceeding on the grounds that he had a reasonable excuse for not attending at the hearing and that he would suffer a substantial injustice if the proceeding was not reopened because of significant new evidence which was not reasonably available when the proceeding was first heard and decided. [2] He contends that he was not notified of the hearing. He says that he had been in contact with the tribunal in early 2011 and again in June 2011 by telephone and in person, and had notified that he would be in Papua New Guinea for an extended period of time due to work commitments. He says that having filed a response it was clear that he intended to defend the application. Further, he says evidence not considered at the first hearing should be put before the tribunal. [3] Mr Blocksidge opposes the application. [4] The tribunal may only grant a reopening application only if it is satisfied that a reopening ground exists for the party, and the ground could effectively be dealt with by reopening the proceeding.1 There are two reopening grounds specified in the QCAT Act.2 Firstly, the party did not attend the hearing but had a reasonable excuse for not attending the hearing.3 Secondly, if the proceeding is not reopened, the party would suffer a substantial injustice for the reason that there is significant new evidence which has arisen, which was not reasonably available when the proceeding was heard and decided.4 History of the original proceeding [5] Mr Blocksidge filed an application in the tribunal on 14 February 2011, for claims relating to alleged defective plastering work performed by a subcontractor, Mr Davis. Mr Davis filed a response and counter-claim on 1 March 2011. He said that the work was not defective and claimed full payment of monies owed, although the amount of the claim was not specified. [6] On 28 April 2011, the tribunal directed both parties to file the statements of evidence they relied upon by specified dates in May 2011. Mr Blocksidge filed material in the tribunal in compliance with the directions. Mr Davis did not. [7] A mediation was held on 2 June 2011. Both parties attended, but the dispute was not resolved. [8] On 13 July 2011, the tribunal received correspondence from Mr Davis stating that he was urgently required to go somewhere, although the 1 QCAT Act, s 139(4). 2 QCAT Act, s 137. 3 QCAT Act, s 137(a). 4 QCAT Act, s 137(b). -- 2 of 6 -- 3 location is indecipherable, for work and ‘will be required to leave before the court case’ and on that basis requested that it be adjourned ‘for a further 3 months.’ A directions hearing listed for 20 July 2011 was then vacated. The matter was listed for a directions hearing on 31 August 2011. [9] On 31 August 2011, directions were again made for the filing by Mr Davis of his material to be relied upon at hearing and listing the matter for hearing on 6 December 2011. [10] On 13 September 2011, the tribunal yet again made directions, among others, for the filing of Mr Davis’ statements of evidence relied upon by 18 October 2011. It also confirmed the listing of the proceeding for hearing on 6 December 2011. [11] It is not apparent from the file whether Mr Davis attended the directions hearings on those dates. Given his correspondence received on 13 July 2011, he may not have done so. However, on each occasion the tribunal forwarded to him copies of its directions at the address he nominated as his address for service. At no time did he change his address for service with the tribunal. [12] Also, on 5 September 2011, a separate Notice of Hearing was sent to both parties. [13] On 29 September 2011, the tribunal received a miscellaneous application from Mr Davis seeking to have to have Mr Blocksidge’s application struck out on the basis that there was no written subcontractor’s agreement, although acknowledging that he was asked to sign one. He contended that this meant he was hired as a labourer only and therefore, not liable for any defective work. It is reasonable to infer that Mr Davis filed this application in response to the tribunal’s directions aimed at progressing the matter to hearing, and I do draw that inference. [14] Subsequently on 3 October 2011, in response to the miscellaneous application, the tribunal directed Mr Davis to file in the tribunal and serve on Mr Blocksidge any submissions in support of the miscellaneous application by 10 October 2011 and for Mr Blocksidge to file and serve his submissions in reply by 17 October 2011. The miscellaneous application was then to be determined on the papers not before 17 October 2011. Mr Davis filed nothing further. Mr Blocksidge filed some documents, including a copy of a housing subcontract agreement which he said he asked Mr Davis to sign on at least 4 separate occasions regarding the works to be done. On 19 October 2011, the tribunal made orders dismissing the miscellaneous application. [15] On 24 October 2011, Mr Davis sent an email to the tribunal stating that the Mr Blocksidge had produced a ‘bogus contract’ which he had never seen before and essentially that Mr Blocksidge’s material contained a ‘pack of lies’. Mr Davis ‘still’ asked for the case to be dismissed. Then on 28 October 2011, he sent a further email to similar effect. It is reasonable -- 3 of 6 -- 4 to infer that these emails were sent in response to Mr Blocksidge’s material and the tribunal’s order dismissing the miscellaneous application, and I do draw that inference. [16] The matter was listed for a further directions hearing on 23 November 2011, although no directions were made on that date. [17] On 6 December 2011, Mr Davis did not appear. After satisfying myself that he had been sent notice of the hearing, I proceeded to hear the matter. I subsequently made orders that Mr Davis pay the sum of $4,711.55 to Mr Blocksidge within 28 days. I published my reasons for decision.5 The reopening application [18] In support of his reopening application, Mr Davis has provided an unsigned letter through lawyers who also provided written submissions on his behalf. In his letter Mr Davis asserts that he let QCAT know ‘on several occasions’ that he had unexpected work commitments as ‘we were getting the court case ready’. He says he had to fly to and live in Papua New Guinea for several months. He further asserts that he ‘was told he could leave and finish the case when I got back.’ His application itself asserted that he had made contact with the tribunal by telephone and in person in early 2011 and again in June 2011, advising that he would be in Papua New Guinea for an extended period of time for work commitments, but his letter did not refer to the times at which or how he alleges he made contact. During the time he was away, he says that his neighbour was to collect the mail. He says that she did so, but that some of it went missing, ‘which was probably the qcat papers.’ [19] Further, he asserts that after arriving back in Australia and ‘slowly’ getting back in to work, he started to wonder when his next QCAT appearance was scheduled. He says that he phoned the tribunal and was told that it was two days earlier. He says he was quite shocked by this as he had not received notification ‘due to my time in New Guni (sic) and mail losses’. He continues that he and his unnamed neighbour, from whom there is no evidence provided, are ‘very sorry for the inconvenience’. He considers that he has not had a chance to explain himself and that there are many things he would like to present to the tribunal in his defence. [20] The submissions from Mr Davis’ lawyers refer to his desire to place evidence before the tribunal refuting evidence accepted by the tribunal that Mr Davis had walked out of the job and that Mr Davis’ workmanship on the job was poor; as well as regarding his counter-claim for monies owed. [21] Mr Blocksidge has provided submissions and copies of some documents in response to Mr Davis’ material. Included is a copy of a page from the Toowoomba Chronicle dated 15 October 2011, which contains a ‘Tradie 5 Blocksidge v Davis [2011] QCAT 672. -- 4 of 6 -- 5 Profile’ about Mr Davis, which includes a photograph of Mr Davis with the caption ‘Travelling plasterer: Toowoomba plasterer Anthony Davis has travelled to Papua New Guinea and worked with locals there for a month and a half.’ Discussion and decision [22] I will address Mr Davis’ claims in respect of each of the possible grounds for reopening separately. [23] Mr Davis’ submits that he had a reasonable excuse for not attending the hearing. He relates this to his travel to live in Papua New Guinea for a period of time. The file does not record the telephone and personal contacts which Mr Davis’ reopening application asserts he made. Inexplicably, he does not refer to the letter he forwarded in July 2011, advising that he would be away for work. His statements about the period for which he was to be away and was away are vague, although his letter in July suggested a 3 month adjournment. [24] The article in the Toowoomba Chronicle, refers in October 2011, to Mr Davis having been in Papua Guinea for a month and a half. That period had ended some time before 15 October 2011 when the article was published. If he left in mid-July 2011, as his correspondence suggests, it appears he returned to Australia by about late August 2011. [25] The tribunal provided copies of its directions and orders to Mr Davis. There were 2 sets of directions which provided him with the hearing date of 6 December 2011, and a separate notice of hearing. They were posted to his address for service and therefore, the tribunal is entitled to be satisfied that he was properly notified. [26] In any event, it is apparent from Mr Davis’ actions, as I have set out above, in response to tribunal notifications, that he was receiving them. [27] The suggestion made that some of his mail was lost is unsupported, and contrary to his actions, such as the filing of his miscellaneous application in September 2011 and his emails to the tribunal in late October 2011, following the tribunal’s decision on 19 October 2011. These steps taken by him at these times also support the conclusion that Mr Davis had returned to Australia by September 2011. [28] Even if some of his mail had gone missing, which I do not accept on the vague, unsupported and somewhat unlikely assertions made, he knew that he had proceedings on foot in the tribunal and had a responsibility to make enquires with the tribunal if he had lost track of the state of the proceedings. Parties have a responsibility to act in their own interests and advance their case in tribunal proceedings.6 As the High Court of Australia has observed, resources provided for the resolution of disputes 6 See for example, QCAT Act, ss 5, 43, 45, 47, 48. -- 5 of 6 -- 6 serve not only the parties to the proceedings, but the public.7 Parties who fail to advance their own interests have to accept the consequences for their failure.8 [29] I am not satisfied that Mr Davis has established that he had a reasonable excuse for failing to attend the hearing. [30] I turn to Mr Davis’ claims that he would suffer a substantial injustice if the proceeding is not reopened because of significant new evidence arising which was not reasonably available when the proceeding was heard and decided. Mr Davis’ material in support of this claim does not assert that there is any new evidence arising since the hearing and determination of the matter. [31] In essence what Mr Davis asserts is that he should be allowed to file material in response to the evidence relied upon by Mr Blocksidge’s evidence and in support of his counter-claim. [32] It is apparent from the history of the original proceeding as I have outlined it, that the tribunal directed Mr Davis to file his evidence on three separate occasions the first of those on 28 April 2011 and he did not. The evidence he now seeks to file is the type of evidence that could have been filed by him. This is not new evidence arising since the hearing and determination of the proceeding. Mr Davis had every opportunity to advance his case. He simply failed to do so. [33] The application in relation to this ground must also fail. [34] The application for reopening is dismissed. [35] I note that Mr Davis has also filed an application seeking leave for legal representation. As the matter has now concluded, I need consider that application no further. It is dismissed. 7 Aon Risk Services Australia Limited V Australian National University [2009] 239 CLR 175. 8 Breezeway Developments Pty Ltd v AND Hydraulics Pty Ltd [2010] QCATA 69. -- 6 of 6 --