Freemantle v Jenwen Pty Ltd t/a LJ Hooker Jimbooma
[2013] QCATA 67
•6 March 2013
| CITATION: | Freemantle v Jenwen Pty Ltd t/a LJ Hooker Jimbooma [2013] QCATA 67 |
| PARTIES: | Mark John Freemantle (Appellant) |
| v | |
| Jenwen Pty Ltd t/as L J Hooker Jimbooma (Respondent) |
| APPLICATION NUMBER: | APL013-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr J R Forbes, Member |
| DELIVERED ON: | 6 March 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Time for filing application for leave to appeal APL013-13 is extended to and including 7 January 2013. 2. Leave to appeal granted. 3. The appeal is upheld, and the judgment entered against Mark John Freemantle on 2 November 2012 is set aside. 4. The original application is remitted to the Beaudesert registry of the Tribunal, to be reheard on a date to be fixed and notified to the parties. 5. Mark John Freemantle shall prepare, file and serve, by 4:00 pm on Friday 22 March 2013, an affidavit setting out reasons, if any, why L J Hooker Jimbooma is not entitled to all or part of the amount claimed. |
| CATCHWORDS: | MINOR CIVIL CLAIM – where judgment in default of appearance at hearing – where medical certificate explaining non-appearance – where certificate sent to Tribunal on day of hearing – where uncertain whether received before or after decision – where if received before decision, uncertain whether placed before Adjudicator – where risk of inadvertent denial of natural justice – where application for leave to appeal out of time – whether extension of time appropriate – whether leave to appeal should be granted – where matter remitted to primary tribunal Queensland Civil and Administrative Tribunal Act 2009, ss 32, 61, 95, 137, 138, 140, 143 Rose v Humbles [1972] 1 WLR 33, cited Cardillo v Queensland Building Services Authority [2011] QCAT 574, cited |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’).
REASONS FOR DECISION
The Lease and Breaches Alleged
On 12 December 2011 the Appellant (“Freemantle”) as tenant, and the Respondent (“Hooker”) as agent for the lessor, entered a General Tenancy Agreement[1] with respect to residential premises at 17 Coolibah Road, Cedar Vale, Queensland.
[1] Residential Tenancies and Rooming Accommodation Regulation 2009 s 6.
By Clause 43 of the said agreement Hooker was duly authorised by the lessor to stand in the lessor’s place in any application to a tribunal by the lessor or the tenant.
On 19 July 2012 Hooker gave Freemantle a Notice to Remedy Breach[2] of the said agreement, alleging arrears of rent, at that date, in the amount of $2,829.28.
[2] Residential Tenancies and Rooming Accommodation Act 2008 s 325, Form 11.
On 1 August 2012 Hooker gave Freemantle a Notice to Leave the subject premises by 10 August 2012, alleging arrears of rent, as at 1 August 2012, in the amount of $3,683.57.
The subject tenancy expired on 15 August 2012.
In August 2012 Hooker served upon Freemantle a claim for $3,558.57 for rent and cleaning services,[3] as the amount allegedly due and owing under the subject agreement, after credit for the tenant’s bond of $1,840.
[3] General Tenancy Agreement dated 12 December 2011, Clause 48(2).
On 19 September 2012 Hooker commenced these proceedings claiming an amount of $3,653.57, including a filing fee of $98.[4]
[4] Application for Minor Civil Dispute – Residential Tenancy Dispute, Beaudesert Claim
0000101/12.
The Hearing and Failure to Attend
On 22 November 2012 the matter came on for hearing before the Tribunal at Beaudesert. In default of appearance by or for Freemantle, the Adjudicator entered judgment[5] for Hooker in the amount of $3,653.57.
[5] QCAT Act s 93.
Freemantle filed no material in answer to Hooker’s claim, but on 22 November 2012 (the day of the hearing) the following, brief medical report was sent in facsimile[6] to the Beaudesert registry on his behalf:
Re Mr Mark Freemantle 7 Bell St Jimboomba – This is to certify that the above is currently suffering from major depression with anxiety. He is not coping with life in general. He is currently on medication and we are in the process of getting him to see a psychologist – Yours faithfully, Dr Joseph Tuitoga.
[6] Facsimile Transmittal Form, Jimboomba Junction Family Practice 22 November 2012.
There is no evidence of the precise time on 22 November 2012 when that document was sent by the medical witness or received by the Tribunal. The hearing was listed to commence at 9.30 am that day, but whether it actually began then, or later, is not clear.
There is no evidence that the medical certificate was drawn to the Adjudicator’s attention before he formally entered judgment in default of appearance. If it had been, an adjournment was called for.[7]
[7]Rose v Humbles [1972] 1 WLR 33; Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (No 4) (1986) 6 NSWLR 674; Miller v DPP (NSW) (2004) 145 A Crim R 95; [2004] NSWCA 90; Davana Timber Industries Pty Ltd v Cool [2012] QCAT 201 at [15].
In the circumstances Freemantle might have applied for a reopening,[8] pleading a reasonable excuse for his non-appearance.[9] However, he is seeking leave to appeal. In the circumstances of this case either type of application, if successful, will have the same result, namely a remission for rehearing.[10]
[8] QCAT Act s 138; Toledo v Etienne [2012] QCATA 146 at [5].
[9] QCAT Act s 137 – “reopening ground” sub-paragraph (a).
[10] QCAT Act s 140(1) prescribes the consequences of a reopening order;
Application for Extension of Time
When the application for leave was filed, registry staff helpfully pointed out to Freemantle that he must first obtain leave to lodge an appeal out of time. The Tribunal has directed[11] that the application for extension of time be decided on the papers; logically, it must be considered first.
[11] Directions 14 January 2013 paragraph 4.
The appeal should have been filed by 20 December 2012.[12] In fact, it was filed on 9 January 2013 – some 3 weeks out of time.
[12] QCAT Act s 143(3).
Hooker opposes an extension of time,[13] but does not suggest that it would suffer any irremediable prejudice or detriment if the application were granted.[14] Other factors to be considered are the presence or absence of an acceptable explanation for delay, the apparent merits of the applicant’s case, and the interests of justice.[15] In my view, Freemantle’s medical evidence, and his lack of legal assistance, sufficiently answer the first of those three questions. There is, as yet, no material upon which the merits of his case can be assessed. So far as time is concerned, a delay of 3 weeks, in the Christmas-New Year period, is readily distinguishable from delays of 7[16], 9[17] and even 16 months[18], when extensions were refused. In view of a real possibility that an inadvertent denial of natural justice has occurred, I consider that it is in the interests of justice to grant the extension sought.
[13] Letter Hooker to Tribunal 6 February 2013.
[14] Cf QCAT Act s 61(3).
[15] Cardillo v Queensland Building Services Authority [2011] QCAT 574; Hammond and
Anor v Queensland Building Services Authority [2012] QCAT 404 at [8].
[16] Knocker v Esteller [2011] QCATA 89.
[17] Frazer v Assistant Commissioner Rynders, Queensland Police Service [2012] QCAT
295.
[18] Palmer v Queensland Building Services Authority[2012] QCATA 158.
Should Leave to Appeal be Granted?
I move on, then, to the application for leave to appeal. That document does not expressly allege any legal or factual error in the primary decision. Essentially it repeats the reason for non-appearance that was sent to the Tribunal on 22 November 2012:
My doctor’s certificate was faxed to the Beaudesert court but I don’t know if it was taken into account or not. ... I have not been given the opportunity to verify any claim details due to my ongoing severe mental health disorder. I suffer from depression with anxieties. I am unable to attend court and I am under my doctor’s care. ... I would ask the court to allow extra time due to my mental health disorder ... until I am able to respond appropriately.[19]
[19] Application filed 9 January 2013, Part B.
I have already noted that it is impossible, on present materials, to determine whether Freemantle’s doctor’s facsimile reached the Tribunal before or after the judgment in absentia was entered. Nor is it possible to say whether it was placed before the Adjudicator before the decision was made. I presume that it was not; I am confident that, if it had been, a different order would have been made. However, on a point so fundamental to due process, I consider that Freemantle should be given the benefit of the doubt. An inadvertent denial of natural justice[20] is a possibility that cannot be disregarded.
[20] See the authorities cited in note 7, above.
Accordingly, I shall grant leave to appeal, allow the appeal, set aside the decision matter on 22 November 2012, and remit the matter for rehearing at Beaudesert on a date to be fixed by the Registrar and notified to the parties.
Medical Evidence and Defence Material Distinguished
It is most important that Mr Freemantle understands that he has succeeded here on a fundamental point of procedure. The present decision is by no means a judgment or expression of opinion on the merits, if any, of his response to Hooker’s claim. Mr Freemantle must appreciate that medical evidence, in itself, is not, and cannot be a good defence to Hooker’s action in debt. When the matter is reheard, he must produce evidence to show that he is not indebted as alleged, or face the hazard that Hooker will re-establish, in whole or part, the substance of its claim.
For the assistance of the Tribunal, and in fairness to Hooker, I shall order Freemantle to file relevant material, by way of defence, before the case is reheard.[21] The very brief medical evidence notwithstanding, he has demonstrated an ability to prepare and file two applications and two affidavits of service.
[21] QCAT Rules r 43; QCAT Act s 95.
ORDERS
1.Time for filing application for leave to appeal APL013-13 is extended to and including 7 January 2013.
2.Leave to appeal granted.
3.The appeal is upheld, and the judgment entered against Mark John Freemantle on 2 November 2012 is set aside.
4.The original application is remitted to the Beaudesert registry of the Tribunal, to be reheard on a date to be fixed and notified to the parties.
5.Mark John Freemantle shall prepare, file and serve, by 4:00 pm on Friday 22 March 2013, an affidavit setting out reasons, if any, why L J Hooker Jimbooma is not entitled to all or part of the amount claimed.
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