Castillo v O'Brien

[2013] QCATA 74

CITATION: Castillo v O’Brien [2013] QCATA 74

PARTIES:	Ricardo Castillo (Applicant/Appellant)
V
Des O’Brien (Respondent)

APPLICATION NUMBER: APL130 -12

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Peta Stilgoe, Senior Member

DELIVERED ON: 5 March 2013

DELIVERED AT: Brisbane

ORDERS MADE: 1. Leave to appeal refused.

CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where appellant did not appear at hearing – where appellant’s sister appeared and made submissions – whether grounds for leave to appeal

APPEARANCES and REPRESENTATION (if any):

The Appeal Tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. Mr Castillo rented a property owned by Mr O’Brien. In March 2011, police executed a search warrant on the property, causing damage to the front door and locks. Around the same time, Mr Castillo was arrested and he is now in Arthur Gorrie Correctional Facility. Through his agent, Mr O’Brien terminated the tenancy agreement and sought compensation for damage to property. An adjudicator ordered that Mr Castillo pay Mr O’Brien $1,374.

2. Mr Castillo wants to appeal that decision. He says that the Tribunal did not have a copy of the notice of damage issued by the Queensland Police Service, showing that the door was damaged by police officers. He also says that he was not given an opportunity to put his case, because the Tribunal could not get through to him on the phone.

1. Because this is an appeal from a decision of the Tribunal in its Minor Civil Dispute jurisdiction, leave is necessary. Leave to appeal 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. The learned Adjudicator had a blank copy of the notice of damage.  He acknowledged that the police had caused some of the damage to the tenancy.[1] He found, as he was entitled to do, that Mr Castillo was responsible for this damage. Despite this, the learned Adjudicator did not make Mr Castillo pay for replacing the locks that the police damaged.

   [1]        Transcript of Proceedings, 10.

1. The Tribunal tried to contact Mr Castillo by phone at an earlier hearing but it was unable to make a connection. Therefore, the Tribunal ordered that Mr Castillo be represented by his sister. 

1. At this hearing, the transcript shows that the tribunal tried to contact Mr Castillo three times by phone[2] but the line was engaged.  Mr Castillo’s sister did attend and made submissions. She knew that Mr Castillo wanted to dispute the amount of the items claimed but he had not given her the tools to do that. The learned Adjudicator acknowledged that he had not spoken to Mr Castillo and that this might raise issues of natural justice[3] but Mr Castillo’s sister indicated that she wanted the dispute finalised that day.[4] The learned Adjudicator decided the dispute based on the submissions by Mr O’Brien’s agent and Mr Castillo’s sister.

   [2]        Ibid 12.

   [3]        Ibid 9.

   [4]        Ibid.

1. There is nothing in the transcript that persuades me the learned Adjudicator should have taken a different view of the facts. Because Mr Castillo knew that his sister had leave to represent him at the hearing, and she did appear, I am satisfied that Mr Castillo had a reasonable opportunity to put his case to the learned Adjudicator and that there has been no substantial injustice that would warrant leave to appeal.

1. There is no question of general importance that should be determined by the appeals tribunal; there is no reasonably arguable case that the learned Adjudicator was in error; there is no reasonable prospect of substantive relief on appeal; and there is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.