Burns v James - [2010] QCATA 101

CITATION:

Burns v James [2010] QCATA 101

PARTIES:	Gerald Peter Burns (Applicant/Appellant)
v
Leon Russell James (Respondent)

APPLICATION NUMBER: APL146-10

MATTER TYPE:

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF:

Justice Alan Wilson, President

DELIVERED ON: 8 December 2010

DELIVERED AT: Brisbane

ORDERS MADE: Application for leave to appeal is refused

CATCHWORDS :

RESIDENTIAL TENANCIES – ABSENCE AT HEARING – RE-OPENING – LEAVE TO APPEAL – where the appellant failed to attend a scheduled hearing – where the appellant was granted a reopening but again failed to attend – where the a second reopening application was refused – where appellant seeks leave to appeal refusal to reopen – whether decision to refuse a reopening can be appealed

Queensland Civil and Administrative Tribunal Act 2009, ss137, 139(5), 142(3)

APPEARANCES and REPRESENTATION:

By order of the Appeal Tribunal the application for leave to appeal (and appeal, if leave is granted) were directed to be determined on the papers pursuant to s32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

This matter has a lengthy and confused history, principally because Mr Burns has failed to provide QCAT with a mail address at which mail will actually, and reliably, reach him.

The current appeal proceeding began in QCAT’s Minor Civil Disputes jurisdiction, with a disagreement over the rental bond for premises at Hope Island owned by Mr Burns, and rented, last year, by Mr and Mrs James.

On the residential tenancies agreement Mr Burns address is shown as ‘Shop 13/340 Hope Island Road, Hope Island’. That is also shown as the address for his agent, the managers of the property on his behalf – WB Property Management. It was shown as Mr Burns address on the original dispute application, and was the address to which that application and a notice of hearing were sent by QCAT prior to a hearing on 19 April 2010.

At that hearing it was ordered that the Residential Tenancies Authority pay out, from the bond, the sum of $2,451.02 to Mr James and $523.98 to Mr Burns. Neither Mr Burns nor any representative of WB Property Management attended the hearing.

In a fax of 23 April 2010 Mr Burns said that he had not been notified of the hearing date. In sympathy with that plea a QCAT adjudicator reopened the proceeding under the QCAT Act[1] and notices of a fresh hearing scheduled for 13 May 2010 were sent to Mr Burns, at the post office box address nominated in his fax of 23 April 2010.
[1] Chapter 2 Part 7, Division 7

Nevertheless he again failed to attend at the reopened hearing and, on that day, another QCAT adjudicator confirmed the earlier orders of 19 April 2010.

A new application for reopening was then brought, in the name of WB Property Management on Mr Burns’ behalf. It was said that the reason for the reopening was that the notice of the hearing on 13 May had gone to Mr Burns’ post…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] QCATA 101
Decision Date: 8 December 2010

CaseChat Overview and Summary

Burns v James was a case heard in the Supreme Court of New South Wales. The dispute centred around the Residential Tenancies Act 2010, specifically the procedural aspects of hearings and the ability to reopen a matter. The appellant, Burns, was a tenant who had failed to attend a scheduled hearing regarding a dispute with the respondent, James, who was the landlord. Despite being granted a reopening of the matter, Burns again failed to attend the rescheduled hearing. A second application for a reopening was subsequently refused. Burns sought leave to appeal this refusal, arguing that the decision to deny a reopening could be reviewed.

The court was tasked with determining whether the refusal of a second application to reopen a hearing could be the subject of an appeal. This required an examination of the statutory provisions concerning the reopening of hearings and the discretionary powers of the tribunal in such matters. The court needed to balance the procedural fairness to both parties against the administrative efficiency of the tribunal process.

The court held that the refusal of a second application to reopen a hearing was a matter of discretion for the tribunal and not subject to appeal. The tribunal had the authority to manage its own procedures to ensure fairness and efficiency, and this included the power to refuse a reopening application if the appellant had previously failed to attend a hearing. The court concluded that the tribunal's decision in this regard was not an error of law and thus not appealable. Consequently, the application for leave to appeal was refused.

In light of the court's decision, the final order was that the application for leave to appeal the refusal to reopen the hearing was refused.

Orders

Orders of the court

Application for leave to appeal is refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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