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Queensland Judgments
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  • Unreported Judgment

Phillips v Knox

 

[2016] QCAT 152

CITATION:

Phillips v Knox [2016] QCAT 152

PARTIES:

Jeffrey Phillips

(Applicant)

 

v

 

David Knox

(Respondent)

APPLICATION NUMBER:

MCDO2479-15

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Adjudicator Bertelsen

DELIVERED ON:

22 April 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The Respondent’s reopening application filed 29 March 2016 is refused.

CATCHWORDS:

Minor Debt claim – default decision – basis on which a default decision can be set aside – basis on which an application otherwise can be reopened

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 137

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

  1. [1]
    On 12 November 2015, Mr Phillips filed an application for Minor Civil Dispute – Minor Debt. On 12 November 2015, personal service was effected on the Respondent, David Knox. On 14 December 2015, a default decision was entered in favour of Mr Phillips in the sum of $5,379.02.
  2. [2]
    Historically, an application to set aside the Tribunal’s default decision of 14 December 2015 was made on 18 December 2015. The Respondent, Mr Knox asserted that he wished ‘to have the decision waived due to my company having a large amount deducted from the original invoice’. That application was refused because no reason was given as to why a response to the claim was not filed, that no response was provided, and the mere fact that part of the invoice should assertedly be deducted from the original invoice did not constitute grounds to set aside the default decision.
  3. [3]
    Then on 20 January 2016, an application was made to reopen the original application. On this occasion, the Respondent asserted he was ‘unaware of the hearing date because the hearing date did not come to my attention’. He said he filed a change of contact details form on 18 December 2015 listing his new address; that he would like ‘the opportunity to presenting [sic] my evidence to the Tribunal’; that he had made an application to the Tribunal to set aside the default decision which was refused because he did not provide any material in support of his application.
  4. [4]
    Mr Knox said he was now in a position to provide material in support of his application, and that he wished to have his application to set aside the default decision reheard.
  5. [5]
    If this application (the second application post 14 December 2015) is to be construed as an application to set aside the default decision then it is refused for the reason that the application to set aside the default decision (the first application) had already been made.
  6. [6]
    If this application is to be construed as an application to reopen, then pursuant to s 137 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) the Respondent must establish that he had a reasonable excuse for not attending the application hearing. Here, there was no hearing. This was a Minor Debt application requiring the filing of a response within 28 days of service (personal service of the original application was not denied).
  7. [7]
    Alternatively, the Respondent must establish substantial injustice being occasioned to himself if the proceeding was not reopened because significant new evidence had arisen, and that evidence was not reasonably available when the proceeding was first heard and decided. Here there was no hearing. Quite apart from that, there was no latter day evidence produced to the Tribunal which would not have been available to Mr Knox for him to respond to the original application. Rather, it appears Mr Knox was busy making an open offer of settlement to the Applicant, Mr Phillips. The application to reopen was refused on 16 February 2016.
  8. [8]
    On 29 March 2016, a further application to reopen the proceeding was made. On this occasion Mr Knox asserted he was not a proper party to the proceeding; that he did not have a proper opportunity to respond to the original application; that consequently a default decision was made against him; that had he responded to the original application he would have adduced evidence to demonstrate that he was not a party to the proceeding; that such evidence was not before the Tribunal at the time of the (default) decision; that he had a reasonable explanation for failing to respond to the original application within the requisite time frame; and finally, that he had a reasonable explanation for failing to file this (third) application within the requisite time frame. No documentation accompanied this (third) application.
  9. [9]
    On 1 April 2016, the Tribunal directed:

Respondent is to file material within 14 days setting out the reasonable explanation for failing to respond to the original application and the reasonable explanation for the delay in filing this application to set aside the application will be further considered thereafter.

  1. [10]
    On 12 April 2016, Mr Knox filed an outline of argument stating he was applying to reopen the proceeding, extend the time to apply to reopen, and for the proceeding to be struck out. In his affidavit in support, filed at the same time, Mr Knox stated his previous (second) application was premised upon a failure to receive the original application. That is not so. Mr Knox’s previous (second) application asserted he was unaware of the ‘hearing date’. As stated, there was no hearing date as such. Service of the initiating Minor Debt application has never been denied until now.
  2. [11]
    Mr Knox stated that he did not owe money in his personal capacity. If that were so it was open to him to argue that as a response to the initiating application.
  3. [12]
    Mr Knox stated that subsequent to the issue of the default decision, information and evidence has come to his attention that he was not previously aware of. It is not evident what that is. If it is the material in the exhibit sheet to Mr Knox’s affidavit, then there appears to be nothing there that would not have been readily available prior to 14 December 2015. It consists of a scope of works, emails, quotes, invoices, photos, summaries and the like, all of which pre-date the date of entry of the default decision.
  4. [13]
    Mr Knox stated he was unaware of the necessity to file material to support ‘an application and consequently did not do so’. It is not for the Tribunal to take carriage of a party’s application such that enough material in support is eventually produced to the Tribunal. Rather, the Tribunal makes its decision based on what is before it at the time the decision is made. Having said that, the Tribunal has, in this instance, bent over backwards out of a sense of fairness to afford Mr Knox every opportunity to make a case for himself. In this regard, the Tribunal’s orders of 1 April 2016 are self-evident.
  5. [14]
    On numerous occasions now Mr Knox has failed to make out a case for setting aside the default decision or reopening (to the extent such could possibly be applicable). It is not for the Tribunal to continually revisit its decisions where arguments are simply sought to be raised after the event.
  6. [15]
    The Respondent’s application to reopen the proceeding filed 29 March 2016 is refused.
Close

Editorial Notes

  • Published Case Name:

    Phillips v Knox

  • Shortened Case Name:

    Phillips v Knox

  • MNC:

    [2016] QCAT 152

  • Court:

    QCAT

  • Judge(s):

    Adjudicator Bertelsen

  • Date:

    22 Apr 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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