Brown v Northside First National

[2011] QCATA 119

CITATION: Brown v Northside First National [2011] QCATA 119

PARTIES:	Miss Jamie Rose Brown
v
Northside First National

APPLICATION NUMBER:            APL127-10               

MATTER TYPE: Appeals

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: Richard Oliver, Senior Member
Peta Stilgoe, Member

DELIVERED ON:   26 May 2011

DELIVERED AT:   Brisbane

ORDERS MADE:      Leave to appeal is refused.

CATCHWORDS:

Residential tenancy – whether tenant liable for cost of repairing cracked glass

Procedure – where applicant applied to attend by remote conferencing – where adjudicator rang number provided four times – where applicant did not answer telephone – where application dismissed – whether grounds to reopen proceeding

Queensland Civil and Administrative Tribunal Act2009, ss 3(b), 13(1), 137(a)

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

Mr Oliver

1. In this matter the Appeal Tribunal consisted of Ms Stilgoe, QCAT Member and me.  I have had the benefit of reading her reasons in draft.  I agree with her reasons, and her conclusions, and the order she proposes.

Ms Stilgoe

1. Ms Dowd was a tenant in premises managed by Northside First National.  At the conclusion of the tenancy, Northside sought a payment of $280 from the bond to pay for a cracked pane of glass in the door of the tenancy.  Ms Brown applied to the tribunal for an order that the $280 be paid to her.  The file records that neither party attended at the hearing of Ms Brown’s application.  The learned Adjudicator dismissed the application.

1. Ms Brown appeals this decision:

a)    She made arrangements to attend the hearing by remote conference but nobody contacted her.

b)    Northside did not send her the exit condition report within the time required.

c)    She denies that the glass was cracked when she left the tenancy.

d)    Because of the time that elapsed between her leaving the tenancy and the exit condition report being completed, the cracked glass could have been caused by an unknown third party.

1. In fact, Ms Brown’s application for leave to appeal is really an application for a reopening on the basis that she did not appear at the hearing of the proceeding, s 137(a) Queensland Civil and Administrative Tribunal Act 2009, and it is appropriate to determine the application on this basis.

1. Section 137(a), which defines a reopening ground, requires that the party who did not appear have a reasonable excuse for not attending the hearing. The minor civil dispute file does show Ms Brown’s application to attend the hearing by remote conferencing. The file also records that the learned Adjudicator attempted to call Ms Brown on the number she provided at 11.15 am and 11.20 am but there was no answer. When the learned Adjudicator called Ms Brown at 1.00 pm, a male person answered the phone and then hung up. The learned Adjudicator called again; the phone rang out and he was disconnected.

1. QCAT has statutory obligations to deal with matters in ways that are accessible, economical and quick: s 3(b). The minor civil disputes jurisdiction, in particular, is one in which the Tribunal has a broad jurisdiction to make orders that it considers fair and equitable including, importantly, orders dismissing an application if it considers that course to be appropriate: s 13(1). It is common knowledge that the jurisdiction is a busy and demanding one, in which parties are expected to present their own cases, and act in their own interests.

1. 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’[1].

   [1]Aon Risk Services Australia Limited v Australian National University [2009] 239 CLR 175, at 217, para [113].

1. Ms Brown has not provided a reasonable excuse for her non-attendance, stating simply that the tribunal did not call her.  I note the material from Northside has numerous references to the difficulty in contacting Ms Brown.  I find the learned Adjudicator’s notes more compelling than Ms Brown’s assertions.  I am, therefore, satisfied that the learned Adjudicator took sufficient precautions to enable Ms Brown’s attendance at the hearing, that she had no reasonable excuse for not appearing and her application for a reopening should be dismissed.

1. As for the application for leave to appeal, it will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief.  Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?

1. There is no question of general importance which requires a decision of the appeal tribunal; the evidence is capable of supporting the learned Adjudicator’s decision to dismiss the application; there is no real prospect that Ms Brown will obtain substantive relief on appeal; and she has not suffered a substantial injustice.

1. Leave to appeal should be refused.