Claremont Holdings Pty Ltd v Marsh

[2017] QCAT 297

CITATION:

Claremont Holdings Pty Ltd v Marsh [2017] QCAT 297

PARTIES:

Claremont Holdings Pty Ltd
(Applicant)

v

Graham Marsh

(Respondent)

APPLICATION NUMBER:

MCDT1320-17

MATTER TYPE:

Residential tenancy matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Adjudicator Bertelsen

DELIVERED ON:

28 July 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

1.   The applicant’s reopening application is refused

CATCHWORDS:

APPEARANCES:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS – reopening – absence of a reopening ground – no reasonable excuse for non-attendance

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 138

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

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. On 22 May 2017, Claremont Holdings Pty Ltd (Claremont) filed an application seeking termination of Graham Marsh’s tenancy agreement and a payment of $3,027.95 rental arrears/unpaid utilities, together with additional sums of money that might accrue in the interim.

2. The application came before the Tribunal on 20 June 2017. Neither party appeared. The application was dismissed.

3. On 3 July 2017, Claremont filed on application to reopen the proceeding.  Claremont’s reason was “I missed the hearing date due to a glitch in my computer, the diary reminder did not work properly and failed to send me a reminder of the hearing date. I apologise for this inconvenience”.

4. S 138 of the QCAT Act states that if a party has a reasonable excuse for non-attendance at hearing, then the application can be reopened and heard afresh.

5. The Appeal Tribunal’s decision of Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd[1] (Breezeway), a joint decision of the then QCAT President, Wilson J, and Member Gardiner, turned on the same point as here, namely, whether there was a reasonable excuse for not attending the hearing. In Breezeway the appellant company’s representatives misread the hearing date on the Notice of Hearing and turned up at the courthouse two days later. Wilson J stated:

   The incorrect reading of a plainly notified date does not, I think, qualify. QCAT has statutory obligations to deal with matters in ways that are accessible, economical and quick…

   [1][2010] QCATA 69.

6. Wilson J went on to say (footnotes omitted):[2]

   …parties are expected to present their own cases, and act in their own interests.

   That statutory regime 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 serve, as the High Court has recently observed ‘…the public as a whole, not merely the parties to the proceedings’.

   The document Breezeway Developments received from QCAT giving it notice of the date of the mediation, or hearing, was an important one. Its officers and staff were required to pay attention to its contents. Nothing, it appears, impeded Breezeway Developments’ comprehension of the document or its opportunity to learn, from it, the correct date.

   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.

   [2]Breezeway, [10] - [13].

7. Member Gardiner pointed out that there was:[3]

   …no dispute that proper notice of the hearing was given to Breezeway, only that a mistake was made by the company’s representatives as to the proper day…

   Breezeway can show no other error other than its own.

   [3]Breezeway, [18], [23].

8. Here, it is clear Claremont was given notification of the date of hearing, and that the company was aware of the date it was required to appear.

9. There was no notification to the Tribunal registry regarding inability to attend, no adjournment request, no additional reason proffered to the Tribunal in support of reasonable excuse for non-attendance on the day. In fact, nothing other than a latter day realisation of one’s own mistake.

10. Blaming a computer diary reminder glitch does not constitute a reasonable excuse for non-attendance on the day where the hearing date was clearly communicated to Claremont. It was Claremont’s own choice to select the manner in which it was to remind itself of important dates. In accordance with the Appeal Tribunal’s Breezeway decision, the reopening application is refused.