Campbell v Flucker

[2010] QCATA 70

CITATION: Campbell v Flucker [2010] QCATA 70

PARTIES:	Barry Graeme Campbell & Anne Florence Campbell (Appellants)
v
Tony Flucker & Vicki Flucker (Respondents)

APPLICATION NUMBER:            APL069 -10              

MATTER TYPE:

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON:   10 November 2010

DELIVERED AT:   Brisbane

ORDERS MADE:  Application for leave to appeal refused

CATCHWORDS :  RESIDENTIAL TENANCIES – PROCEDURAL FAIRNESS – ABSENT FROM HEARING- LEAVE TO APPEAL – where appellants failed to attend hearing – where adjudicator determined the matter in their absence – whether appellants denied a reasonable opportunity to be heard – whether appellants had arguable case – whether error of law

REASONS FOR DECISION

1. The Fluckers were tenants in residential premises at Remita Court in Alexandra Hills, formerly owned by the Campbells. On 3 June 2009 the Campbells agreed to sell the Remita property to Mr and Mrs Gallacher, and as result, the Fluckers vacated on 17 June 2009. Settlement of the Campbells’ sale to the Gallachers was effected on 22 July 2009.

1. The Campbells commenced proceedings in QCAT claiming that the Fluckers owed them rent from the time they moved out to the time the Gallachers moved in.

1. There is, however no evidence of any agreement to that effect.  Rather, the basis for the Campbells claim appears to rest on an allegation that an earlier contract of sale was terminated by prospective purchasers because the Fluckers failed to vacate the premises on 1 June 2009. The QCAT file shows that the Fluckers advised the Campbells on 6 May that they had purchased another property, and would not move out until 17 June.

1. The matter was listed for a hearing before an adjudicator on 18 March 2010. The Campbells failed to attend, and the matter was determined in their absence.

1. QCAT’s legislation permits the Tribunal to hear and decide a matter in the absence of a person if it is satisfied that person has received proper notice of the hearing: QCAT Act, ss 57(1)(b), 93. However, QCAT is bound to act fairly in each proceeding and determine every matter according to the substantial merits of the case[1].

   [1]QCAT Act, s 28(2)

1. Mr Flucker attended the hearing and tendered as evidence:

(i)      a sworn Statutory Declaration from the Gallachers;

(ii)     two letters from the Campbells’ solicitors to the Gallachers dated 17 June 2009 and 3 July 2009.

The substance of these documents is that the Gallacher’s agreed to pay rent for the property from 22 June until settlement.

1. Unsurprisingly, the learned adjudicator dismissed the Campbells’ application. They now seek leave to appeal that decision. Leave is necessary to appeal a decision arising from a minor civil dispute: Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), s 142 (3)(a)(i).

1. The Campbells alleged that they were unable to attend the QCAT hearing because they were travelling interstate and did not receive the notice of hearing until 19 March 2010, the day after the hearing itself. However, they admitted that a mail collection agency delivered the notice to their mailbox on 16 March 2010.

1. The Campbells application to QCAT was filed on 1 March 2010. The file then shows that the Notice of Hearing was issued by ordinary post according to standard QCAT procedures; that the Registrar certified that in the ordinary course of post it would be delivered by 4 March 2010; and that the hearing was scheduled for 18 March 2010. Their contention concerning non-attendance therefore touches more upon questions of procedural fairness, rather than any failure to receive notice of the hearing[2].

   [2]See QCAT Act, s 92

1. QCAT is required to afford each party a reasonable opportunity to be heard[3].  Inherent in that proposition, however, is the presumption that the parties will actually take steps to avail themselves of the opportunity to present or defend their case.

   [3]Kioa v West (1985) 159 CLR 550

1. In the present case, the Campbells apparently elected to leave their mail unattended to at a time after they had commenced proceedings. They did not, it appears, take any steps to address the contingency that things might happen in the proceeding, in their absence – eg, by having someone else monitor their mail and report to them on its contents.

1. The tribunal has a statutory obligation to act speedily.  The Campbells would have had the opportunity to be heard had they acted in their own interests.

1. The Campbells’ additional difficulty is that there is no evidence that they had an arguable case[4]. Their submission is that the money paid by the Gallachers prior to settlement was not rent, and that this is evidenced by the fact that the monies were never referred to as ‘rent’ in any correspondence – a claim that stands in stark contrast to the Gallachers’ Statutory Declaration, and contents of the 17 June 2009 letter.

   [4]           Atkinson v Consumer, Trader and Tenancy Tribunal of NSW[2010] NSWSC 426;

1. The Campbells have not produced evidence which is persuasive that a different decision would, or might, have been made if they had attended the hearing. As there are no demonstrated errors in the learned Member’s decision, leave to appeal should be refused.

1. It might have been possible for the Campbells to seek a reopening of the proceedings on the grounds that they had a reasonable excuse for non-attendance: QCAT Act, s 137(a). For the reasons explored above, that application would not have been successful.

         Dobell v Blue Haven Pools and Spas Pty Ltd [2009] NSWCA 77.