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BJ's Express Moving & Storage Pty. Ltd. v Scheepers[2019] QCATA 128

BJ's Express Moving & Storage Pty. Ltd. v Scheepers[2019] QCATA 128

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

BJ’s Express Moving & Storage Pty Ltd v Scheepers [2019] QCATA 128

PARTIES:

bj’s express moving & storage pty ltd

(applicant\appellant)

 

v

 

michael scheepers

(respondent)

APPLICATION NO/S:

APL309-18

ORIGINATING

APPLICATION NO/S:

MCDO393-18 Brisbane

MATTER TYPE:

Appeals

DELIVERED ON:

22 July 2019

HEARING DATE:

22 July 2019

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

The application for leave to appeal is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where a party was served with initiating process – where the party applied to change venue – where the application for change of venue was refused – where the party admitted receiving notice of hearing – where the party failed to attend the hearing despite having received notice of hearing

Pickering v McArthur [2005] QCA 294

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

APPEARANCES

& REPRESENTATION:

 

Applicant/appellant:

Self-represented by M Groves

Respondent:

Self-represented

REASONS FOR DECISION

  1. [1]
    Mr Scheepers engaged BJ’s Express Moving and Storage Pty Ltd (‘BJ’s’) to move his household goods and furniture from Townsville to Brisbane.
  2. [2]
    During the removal an expensive television set was damaged beyond repair.
  3. [3]
    Mr Scheepers brought proceedings in the Tribunal at Brisbane claiming the cost of replacement of the television.
  4. [4]
    The matter was listed for a mediation in Brisbane. Mr Scheepers attended but no one from BJ’s attended, in person or by telephone.
  5. [5]
    The matter was then listed for a hearing in Brisbane. Notice of the hearing was given to BJ’s.
  6. [6]
    BJ’s made an application to the Tribunal to change the hearing venue from Brisbane to Townsville but that was refused. Accordingly, the hearing scheduled for Brisbane remained on foot.
  7. [7]
    At the hearing in Brisbane Mr Scheepers attended but BJ’s did not.
  8. [8]
    The learned Adjudicator hearing the matter gave judgement for Mr Scheepers but reduced his claim, allowing him relief from paying outstanding money due for the removal work and an amount representing the loss of the value of the television set.
  9. [9]
    BJ’s sought leave to appeal that decision.
  10. [10]
    Given this is an appeal from a decision made in the Tribunal’s minor civil dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.[1]
  11. [11]
    Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice and where there is a reasonable argument that there is an error to be corrected.[2] There may be other relevant considerations, but these are primary.
  12. [12]
    The application for leave to appeal was heard by me on 22 July 2019. At the conclusion of the hearing I recorded oral reasons for refusing the application for leave to appeal. It is appropriate that I formally record those reasons given ex tempore in writing for the parties.
  13. [13]
    Mr Scheepers filed a consumer dispute application in Brisbane on 9 March 2018. He gave BJ’s address in that document as 196 Southwood Road, Stuart, 4811.
  14. [14]
    On 10 April 2018 a notice to attend mediation was sent by the Tribunal to BJ’s at that same address advising of the mediation to take place on 18 April 2018. As stated above, BJ’s failed to attend the mediation.
  15. [15]
    On 7 November 2018 notice of the hearing to take place in Brisbane on 7 November 2018 was sent to BJ’s by the Tribunal, again to the address 196 Southwood Road, Stuart.
  16. [16]
    On 17 September 2018, BJ’s applied to change the venue from Brisbane to Townsville. In its application for change of venue, BJ’s admitted receiving the notice of hearing scheduled for 7 November 2018 in Brisbane.
  17. [17]
    The Tribunal refused the application to change venue and sent a copy of the order advising the application was refused to 196 Southwood Road, Stuart. That was sent on 15 October 2019, well before the hearing.
  18. [18]
    The hearing took place on 7 November 2018. BJ’s failed to attend and the learned Adjudicator gave judgement in favour of Mr Scheepers.
  19. [19]
    The only ground of appeal raised by BJ’s is that it did not receive any paperwork or other documents prior to receiving the notice of hearing.
  20. [20]
    The affidavit of service filed by Mr Scheepers deposes to him sending the relevant initiating documents to 196 Southwood Road, Stuart. 196 Southwood Road, Stuart is the address on BJ’s letterhead. 196 Southwood Road, Stuart was the address used by the Tribunal to forward notice of hearing on 7 November 2018 to BJ’s, which BJ’s admitted receiving.
  21. [21]
    What is clear is that BJ’s knew of the hearing set down for 7 November 2018 in Brisbane and failed to attend. There is no error discernible in the learned Adjudicator’s decision. There is no reopening ground identified. The only reopening ground that could potentially be relied upon is that BJ’s failed to appear at hearing and had a reasonable excuse for that. BJ’s does not have a reasonable excuse for ignoring the notice of hearing and the hearing.
  22. [22]
    Parties have a responsibility to act in their own best interests in proceedings. As stated in The Pot Man Pty Ltd v Reaoch:[3]

… the legislation, and the demands upon public resources which fund QCAT, necessarily impose an expectation and an obligation upon a party that it will ensure that it acts in its own best interests, or accept the consequences.[4]

  1. [23]
    BJ’s has failed to act in its own best interests and it must accept the consequences for its negligence or disregard of reasonable notice of hearing.
  2. [24]
    There is no error discernible in the decision below. There is no substantial injustice in the decision handed down below.
  3. [25]
    The application for leave to appeal is refused.

Footnotes

[1]  QCAT Act, s 142(3)(a)(i).

[2] Pickering v McArthur [2005] QCA 294, [3].

[3]  [2011] QCATA 318.

[4]  Ibid [10].

Close

Editorial Notes

  • Published Case Name:

    BJ's Express Moving & Storage Pty. Ltd. v Scheepers

  • Shortened Case Name:

    BJ's Express Moving & Storage Pty. Ltd. v Scheepers

  • MNC:

    [2019] QCATA 128

  • Court:

    QCATA

  • Judge(s):

    Member Howe

  • Date:

    22 Jul 2019

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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