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Queensland Judgments
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  • Unreported Judgment

Wasshausen v Rizzo

 

[2020] QCATA 61

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Wasshausen v Rizzo [2020] QCATA 61

PARTIES:

JURGEN WASSHAUSEN

(appellant) 

 

v

 

ANDREW RIZZO

(respondent)

APPLICATION NO/S:

APL245-19

ORIGINATING APPLICATION NO/S:

MCDQ66/19

MATTER TYPE:

Appeals

DELIVERED ON:

27 April 2020

HEARING DATE:

22 April 2020

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDERS:

  1. Jurgen Wasshausen is taken to have made an application for the proceeding to be reopened under section 138 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
  2. Jurgen Wasshausen is taken not to have made an application or appeal under section 143 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
  3. The matter is referred to the Tribunal to decide whether the proceeding should be reopened.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – where appellant did not attend original hearing – where appellant did not raise any error but was effectively seeking reopening on grounds that he had reasonable excuse for not attending – where Appeal Tribunal may refer matter to Tribunal to decide whether proceeding should be reopened – whether reopening ground – whether reasonable excuse for not attending hearing 

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 4, s 28, s 138, s 143, s 143A, Schedule 3

Aon Risk Services Aust Ltd v Australian National University (2009) 239 CLR 175

Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69

Creek v Raine & Horne Mossman [2011] QCATA 226

Crime and Corruption Commission v Deputy Commissioner Stephan Gollschewski [2014] QCAT 359

Harris v Foxworth Pty Ltd [2013] QCATA 133

Laker Paint Company Pty Ltd v Bray [2013] QCATA 90

Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe [2013] QCATA 212

Ren v Poolworld Pty Ltd [2011] QCAT 706

The Pot Man Pty Ltd v Reaoch [2011] QCATA 318

Tilecorp Pty Ltd v Pinnacle Seal Pty Ltd [2011] QCAT 52

W&E Carlsen Builders v Tressider [2014] QCAT 131

Wimberley v Misevski [2013] QCATA 223

APPEARANCES &

REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

  1. [1]
    Jurgen Wasshausen did not attend the hearing of his Application for minor civil dispute – consumer dispute against Andrew Rizzo on 8 August 2019. Consequently, the learned Adjudicator dismissed his claim.
  2. [2]
    Although Mr Wasshausen has appealed that decision, it is clear that he has not raised any error by the learned Adjudicator. Rather, he is effectively seeking a reopening on the grounds that he had a reasonable excuse for not attending: that the Registry informed him that he was not required to attend.
  3. [3]
    Because of this, the matter should be referred to the Tribunal to decide whether the proceeding should be reopened.[1] The Appeal Tribunal notes that Mr Wasshausen will need to establish to the Tribunal a ‘reopening ground’ – a reasonable excuse for not attending the hearing or that significant new evidence has arisen since the proceeding was first heard and decided.[2]
  4. [4]
    Mr Wasshausen offered the following as an excuse for his non-attendance:

On 7th August 2019 I was in Cleveland Magistrates Court to ask if I have to attend the hearing as I live far away and I have documented the case in detail. I was told that I do not have to attend. Then on the same day I send [sic] an email to: [email protected]:  can’t come to the hearing. If you have further questions, I am available by phone...

  1. [5]
    Mr Wasshausen did not provide a copy of the email to the Appeal Tribunal. Regardless – and accepting Mr Wasshausen’s evidence on its face – in deciding whether to reopen the application, the Tribunal considers delay, wasted costs, the legitimate concerns of proper case management and the proper use of public resources.[3]
  2. [6]
    The Tribunal sent Mr Wasshausen a Notice of Hearing on 24 July 2019, stating the hearing time of 2.00pm on 8 August 2019 and including the following:

If you do not attend the hearing, the Tribunal may hear and decide the matter in your absence, including making orders against you.

  1. [7]
    During the appeal hearing, Mr Wasshausen said he thought this meant that if he did not attend, the Tribunal would simply decide the matter ‘on the papers’ – rather than simply dismissing the matter because he did not attend. He seems to have inferred this from what he said he was told by Registry.
  2. [8]
    The Tribunal must act fairly[4] and according to principles of natural justice[5] with as little formality and as much speed as matters permit.[6] This is intertwined with the Tribunal’s statutory mandate to conduct proceedings in an informal way that minimises costs to parties and is as quick as is consistent with achieving justice[7] – particularly in the busy and demanding minor civil disputes jurisdiction, where thousands of applications are processed and determined each year.[8] Because of the considerable demands on the Tribunal’s resources resulting in multiple listings before Adjudicators, applicants who do not attend their hearing at the listed time and date can have their matters dismissed.
  3. [9]
    Incorrect advice from the Registry, if given, is not a denial of procedural fairness.[9] This is because Mr Wasshausen has an obligation to act in his own best interests:

The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, ‘… the public as a whole, not merely the parties to the proceedings’. Finality in litigation is highly desirable, because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties.[10]

  1. [10]
    The onus is always upon Mr Wasshausen to attend the hearing and present his case.[11] He cannot shift that personal responsibility to the Tribunal Registry.[12] The words in the Hearing Notice are clear and not difficult to understand. If Mr Wasshausen had doubts about whether he could attend, it was incumbent upon him to apply for an adjournment or apply to appear by telephone. 
  2. [11]
    Missing a date through misunderstanding is not a reasonable excuse.[13] The rationale is consistent[14] and clear:

In the context of the legislation and the demands upon public resources like those which fund QCAT it is not unreasonable to impose, upon a party, an expectation and an obligation that it will ensure it acts in its own best interests, or accept the consequences; and that mistakes like those made here, while attracting sympathy, can no longer prevail over statutory and practical constraints on available resources for dispute resolution.

When these matters are appreciated, it will be seen that a party’s own fundamental error in misreading a document cannot be categorised as a ‘reasonable excuse’ for the purpose of revisiting proceedings which were otherwise correctly and legitimately brought to an end.[15]

  1. [12]
    Mr Wasshausen considered his dispute sufficiently important to commence proceedings and file an application. Prudence dictates it was therefore sufficiently important to read the material the Tribunal sent to him. Mr Wasshausen’s alleged reliance on Registry advice would therefore not usually be considered a reasonable excuse to not attend the original hearing.
  2. [13]
    It is within this context that the matter is referred to the Tribunal to decide. The appropriate orders are:
    1. Jurgen Wasshausen is taken to have made an application for the proceeding to be reopened under section 138 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
    2. Jurgen Wasshausen is taken not to have made an application or appeal under section 143 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
    3. The matter is referred to the Tribunal to decide whether the proceeding should be reopened.

Footnotes

[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 143A.

[2]  Ibid, s 138(1), Schedule 3 (definition of ‘reopening ground’).

[3] Ren v Poolworld Pty Ltd [2011] QCAT 706, [8], citing with approval Aon Risk Services Aust Ltd v Australian National University (2009) 239 CLR 175.

[4] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(2).

[5]  Ibid, s 28(3)(a).

[6]  Ibid, s 28(3)(d).

[7]  Ibid, s 4(c).

[8] Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe [2013] QCATA 212, [46] (Wilson J).

[9]  Ibid, [43].

[10] Creek v Raine & Horne Mossman [2011] QCATA 226, [13], citing with approval Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 217.

[11] Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe [2013] QCATA 212, [47] (Wilson J); Harris v Foxworth Pty Ltd [2013] QCATA 133, [18]; Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69, [18].

[12] W&E Carlsen Builders v Tressider [2014] QCAT 131, [21].

[13] Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 069; Tilecorp Pty Ltd v Pinnacle Seal Pty Ltd [2011] QCAT 52; Laker Paint Company Pty Ltd v Bray [2013] QCATA 90. See also Crime and Corruption Commission v Deputy Commissioner Stephan Gollschewski [2014] QCAT 359, [35] where the Tribunal reopened the application but specifically declined to decide whether the application would have succeeded on administrative error alone.

[14]  See for example Creek v Raine & Horne Mossman [2011] QCATA 226; The Pot Man Pty Ltd v Reaoch [2011] QCATA 318; Harris v Foxworth Pty Ltd [2013] QCATA 133; Wimberley v Misevski [2013] QCATA 223; W&E Carlsen Builders v Tressider [2014] QCAT 131.

[15] Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 069, [12], [13].

Close

Editorial Notes

  • Published Case Name:

    Jurgen Wasshausen v Andrew Rizzo

  • Shortened Case Name:

    Wasshausen v Rizzo

  • MNC:

    [2020] QCATA 61

  • Court:

    QCATA

  • Judge(s):

    Member Hughes

  • Date:

    27 Apr 2020

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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