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N+S Newham Pty Ltd v Cost-U-Less Concreting Pty Ltd[2015] QCAT 36

N+S Newham Pty Ltd v Cost-U-Less Concreting Pty Ltd[2015] QCAT 36

CITATION:

N+S Newham Pty Ltd v Cost-U-Less Concreting Pty Ltd  [2015] QCAT 36

PARTIES:

N+S Newham Pty Ltd ACN 129585039 (Applicant)

 

v

 

Cost-U-Less Concreting Pty Ltd

(Respondent)

APPLICATION NUMBER:

MCDO0071-14

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

7 November 2014

HEARD AT:

Pine Rivers

DECISION OF:

Member Favell

DELIVERED ON:

8 January 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Application to reopen matter Q71/14 is granted.
  2. The decision made on 12 September 2014 is stayed.

CATCHWORDS:

Application to reopen – request for reasons – extension of time for application

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 61, 122, 138,139. Schedule 3

Queensland Civil and Administrative Tribunal Rules 2009 (Qld) 38, 39, 92. Schedule

Coppens v Waterwise Design Pty Ltd [2014] QCATA 309

Taylor v Taylor (1979) 143 CLR 1

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 (Qld) (QCAT Act).

REASONS FOR DECISION

  1. [1]
    On 7 November 2014 the Tribunal considered an application to reopen a decision of the Tribunal made on 12 September 2014 when the respondent was ordered to pay $4,199 to the applicant.
  1. [2]
    The respondent did not attend the hearing and the order was made in its absence.
  1. [3]
    Section 138 of the QCAT Act provides:
  1. (1)
    A party to a proceeding may apply to the tribunal for the proceeding to be reopened if the party considers a reopening ground exists for the party.
  1. (2)
    The application must—
  1. (a)
    state the reopening ground on which it is made; and
  1. (b)
    be made within the period and in the way stated in the rules; and
  1. (c)
    be accompanied by the prescribed fee (if any).
  1. (3)
    The party must give a copy of the application to—
  1. (a)
    each other party to the proceeding; and
  1. (b)
    each other person to whom notice of the application is required to be given under an enabling Act or the rules; and
  1. (c)
    any person the tribunal directs to be given notice of the application.
  1. [4]
    “Reopening ground” for a party to a proceeding means-(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 heard and decided.[1]
  1. [5]
    Section 139 of the QCAT Act provides:

Deciding whether to reopen

  1. (1)
    This section applies if a party (the applicant party) to a proceeding makes an application under section 138 for a proceeding to be reopened.
  1. (2)
    Each party to the proceeding must be given an opportunity to make, within the period stated in the rules, written submissions about the application.
  1. (3)
    The tribunal—
  1. (a)
    must consider any written submissions made under subsection (2) about the application; and
  1. (b)
    may decide whether or not to reopen the proceeding entirely on the basis of documents, without a hearing or meeting of any kind.
  1. (4)
    The tribunal may grant the application only if the tribunal considers—
  1. (a)
    a reopening ground exists for the applicant party; and
  1. (b)
    the ground could be effectively or conveniently dealt with by reopening the proceeding under this division, whether or not an appeal under part 8 relating to the ground may also be started.
  1. (5)
    The tribunal’s decision on the application is final and can not be challenged, appealed against, reviewed, set aside, or called in question in another way, under the Judicial Review Act 1991 or otherwise.
  1. [6]
    The Tribunal ordered the application be reopened and the decision made on 12 September 2014 stayed.
  1. [7]
    Section 122 of the QCAT Act provides:

Request for written reasons

  1. (1)
    This section applies if the tribunal makes a decision in a proceeding, including its final decision, and does not give written reasons for the decision.
  1. (2)
    A party to the proceeding may, within 14 days after the decision takes effect under section 127, request that the tribunal give written reasons for the decision.
  1. (3)
    The tribunal must comply with a request under subsection (2) within 45 days after the request is made or, if the president extends the period, the extended period.
  1. (4)
    However, the tribunal is not required to comply with a request for written reasons for a decision made under section 51, 54(1), 55(1), 56(1), 57, 61(1), 62(1) or (3), 63(1) or (4) or 64(1).
  1. [8]
    The respondent has requested the Tribunal give written reasons for the decision.
  2. [9]
    An affidavit of the solicitor for the respondent filed in support of the application to reopen deposed that the respondent was not notified of the hearing date as the address for service was his law firm and it did not receive the notice. I accept that evidence.
  3. [10]
    In my view, a reopening ground exists in that the respondent did not appear at the hearing and it had a reasonable excuse for not appearing.
  4. [11]
    Further, I am satisfied the ground could be effectively or conveniently dealt with by reopening the proceeding.
  5. [12]
    The applications to reopen and for a stay were filed on 17 October 2014. That date was 7 days outside the period of 28 days allowed for the making of an application to reopen[2] namely 10 October- if the relevant day was 12 September.[3] The solicitor for the respondent received the 12 September 2014 decision on 14 September. Although there is no evidence that the respondent was actually advised of the decision until solicitors for the applicant made approaches for payment I am of the view that in the circumstances where the solicitor’s firm was the address for service, receipt of the decision by that solicitor on 14 September 2014 makes the relevant day 12 October 2014.   
  6. [13]
    Section 61 allows the Tribunal to order relief from procedural requirements. It allows the Tribunal to extend the time limit fixed for the start of a proceeding by the QCAT Act or an enabling act or extend or shorten a time limit fixed by the Act or an enabling act or the rules or waive compliance with another procedural requirement under the QCAT Act or an enabling act or the rules. It specifically allows an extension or waiver to be given even at the time for complying with the relevant requirement has passed. The Tribunal cannot extend or shorten a time limit or waive compliance with another procedural requirement if to do so would cause prejudice or detriment not able to be remedied by an appropriate order for costs or damages to a party or potential party to the proceeding.
  7. [14]
    As was said in Coppens v Waterwise Design Pty Ltd:[4]

“Based on the wording of s 61 of the QCAT Act, consideration of applications under s 61(1) is essentially a two stage process which includes:

  1. (a)
    Consideration of whether s 61(3) applies: whether the making of an order under s 61(1) would cause prejudice or detriment not able to be remedied by an appropriate order for costs or damages to a party or potential party to a proceeding.
  2. (b)
    In the absence of such prejudice or detriment, consideration of other factors which may be relevant to the exercise of the discretion contemplated by s 61(1).”
  1. [39]
    In Coppens v Waterwise Design Pty Ltd[5] Justice Thomas said:

“In circumstances where such a prejudice should not arise by the granting of an extension or shortening of a time limit or waiver of compliance with other procedural requirements, or where prejudice that does arise can be remedied by an appropriate order for costs or damages, other factors may be relevant.”

  1. [15]
    Other factors where identified in Crime and Misconduct Commission v Chapman & Anor[6] as:

“(a)Whether a satisfactory explanation (or good reason) is shown to account for the delay.

  1. (b)
    The strength of the case the applicant wishes to bring (assuming it is possible for some view on this to be formed on the preliminary material).
  2. (c)
    Prejudice to adverse parties.
  3. (d)
    Length of the delay, noting that a short delay is usually easier to excuse than a lengthy one.
  4. (e)
    Overall, whether it is in the interests of justice to grant the extension. This usually calls for some analysis of the above factors considered in combination.”
  1. [100]
    As was noted by Justice Thomas:

“The legislature must have had a good reason for fixing a time limitation period. Clear definition of time limits assist in achieving the object outlined in s 3(b) of the QCAT Act to deal with matters in a way that is accessible, fair, just, economical, informal and quick...each party is aware of the required time limits and the fair approach is to require the time limits to be complied with unless there is some compelling reason (such as those listed above) to the contrary. That is fair for all parties. Compliance with time limits also will lead to disposition of matters in the most efficient and quick way. Compliance with time limits is also consistent with the public interest in finality of litigation.”[7]

  1. [16]
    I do not find that there is any prejudice to the applicant. In my view a satisfactory explanation for the delay has been provided. Further the day in filing the application to reopening is short. It is in the interests of justice to extend the time for making the application and determine the application for reopening.
  2. [17]
    I am satisfied that the respondent was not given the notice of hearing as required by Rule 77 of the QCAT rules or at all.
  3. [18]
    As was said by the High Court in Taylor v Taylor[8]:

“it was prima facie the right of each party to have the proceedings heard in his or her presence and that justice to both parties required that each party should be entitled to present his or her case.”

  1. [19]
    In my view the respondent has not been afforded that right.
  2. [20]
    The application should be reopened and the decision made on 12 September 2014 stayed.

Footnotes

[1]  QCAT Act, Schedule 3.

[2]  QCAT Rules r 92; QCAT Act s 138.

Rule 92: An application under section 138 of the Act for a proceeding to be reopened must be made—

  1. (a)
    in the approved form; and
  1. (b)
    within 28 days after the relevant day; and
  1. (c)
    by filing it.

[3] relevant day, for an application mentioned in rule 89, 90 or 92 about a decision of the tribunal, means—

  1. (a)
    if the party making the application has requested written reasons for the decision under section 122 of the Act—the day the party is given the written reasons; or
  1. (b)
    otherwise—the day the party is given notice of the decision. (schedule to QCAT Rules)

[4]   [2014] QCATA 309 at [8].

[5]   [2014] QCATA 309 at [10].

[6]  [2011] QCAT 229 at [9].

[7]R v Twindale [2009] QCA 200 per Margaret Wilson J.

[8]  [1979]HCA 38; (1979) 143 CLR 1 at 15-16.

Close

Editorial Notes

  • Published Case Name:

    N+S Newham Pty Ltd v Cost-U-Less Concreting Pty Ltd

  • Shortened Case Name:

    N+S Newham Pty Ltd v Cost-U-Less Concreting Pty Ltd

  • MNC:

    [2015] QCAT 36

  • Court:

    QCAT

  • Judge(s):

    Member Favell

  • Date:

    08 Jan 2015

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Coppens v Water Wise Design Pty Ltd [2014] QCATA 309
3 citations
Jump To
Cite 1 - [2014] QCATA 309
Cite 2 - [2014] QCATA 309
Cite 3 - [2014] QCATA 309
Crime and Misconduct Commission v Chapman & Anor [2011] QCAT 229
1 citation
Jump To
Cite 1 - [2011] QCAT 229
R v Twidale [2009] QCA 200
1 citation
Jump To
Cite 1 - [2009] QCA 200
Taylor v Taylor (1979) 143 CLR 1
2 citations
Jump To
Cite 1 - (1979) 143 CLR 1
Cite 2 - (1979) 143 CLR 1
Taylor v Taylor [1979] HCA 38
1 citation
Jump To
Cite 1 - [1979] HCA 38

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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