Griffioen v Cairns

[2011] QCATA 138

CITATION: Griffioen v Cairns [2011] QCATA 138

PARTIES:	Mr Dean Griffioen
v
Ms Michelle Cairns

APPLICATION NUMBER:            APL141-11               

MATTER TYPE: Appeals

HEARING DATE:   On the papers

HEARD AT:   Brisbane

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

DELIVERED ON:   16 June 2011

DELIVERED AT:   Brisbane

ORDERS MADE:       1. Leave to appeal granted.
  2. Appeal allowed.

3. The decision of 23 November 2010 is set aside.
4. The proceeding is referred to the tribunal for hearing by a different Adjudicator.

CATCHWORDS:

MINOR CIVIL DISPUTE APPEAL – where hearing completed in eight minutes – where no reasons for decision given – whether appellant given an opportunity to put case to the adjudicator – whether grounds for appeal

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
Cachia v Grech [2009] NSWCA 232

Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577

Attorney-General v Kehoe [2001] 2 Qd R 350

Tully v McIntyre [2001] 2 Qd R 338

Drew v Makita (Australia) P/L [2009] QCA 66

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. On 21 September 2010 Ms Cairns signed an application for residential tenancy of a property owned by Mr Griffioen.  It was a condition of the application that she pay a holding deposit of two weeks’ rent.  Ms Cairns paid the holding deposit by EFT transfer on 22 September 2010.  On 23 September 2010, Ms Cairns signed a tenancy agreement, left a copy with Mr Griffioen’s agent and took the original home for her husband to sign.  On 25 September 2010, Ms Cairns advised Mr Griffioen’s agent that she no longer wanted to take up the tenancy; she was advised that this was a “break lease” situation and that she had forfeited the two weeks’ rent she had already paid.  Ms Cairns applied to the tribunal for a refund of the holding deposit; the tribunal ordered that Mr Griffioen pay Ms Cairns the full deposit plus the tribunal’s filing fee.

1. Mr Griffioen has appealed that decision on these grounds:

a)    The hearing process was rushed.

b)    The learned Adjudicator made the decision without giving Mr Griffioen’s representatives the opportunity to put his case.

c)    The learned Adjudicator’s findings of fact were incorrect.

1. Ms Cairns, not surprisingly, maintains that the learned Adjudicator’s decision was correct and the conduct of the proceeding fair.

1. Because this is an appeal from a decision of the tribunal’s minor civil dispute jurisdiction, leave is necessary.  The question whether or not leave to appeal should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?[1]  Is there a reasonable prospect that the applicant will obtain substantive relief?[2]  Is leave necessary to correct a substantial injustice to the applicant caused by some error?[3]  Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[4]

   [1]        QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

   [2]        Cachia v Grech [2009] NSWCA 232 at [13].

   [3]        QUYD Pty Ltd v Marvass Pty Ltd (supra).

   [4]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.

1. Mr Griffioen is correct in his observation that the hearing was a short one.  The transcript records that the hearing, including preliminary matters such as identifying the parties, lasted no more than eight minutes.  That fact alone raises cause for concern.

1. It is also plain from the transcript that Mr Griffioen’s agent was not given a proper opportunity to respond to Ms Cairns’ assertions; Ms Cairns interjected at various times and the learned Adjudicator did not give Mr Griffioen’s agent any opportunity to develop her argument.

1. More importantly, however, the learned Adjudicator has not given any reasons for his decision.

1. The nature and extent of the obligation to provide full reasons varies according to the nature of the case.[5] In QCAT’s Minor Civil Disputes jurisdiction, giving immediate oral decisions accords with the spirit and purpose of the QCAT Act. Those decisions will not be exposed to criticism which fails to acknowledge the circumstances in which they are given, or the pressure of the adjudicator’s caseload. That proposition is not exclusive to the Minor Civil Disputes jurisdiction or the work of adjudicators; as Spigelman CJ remarked in Commissioner of Taxation v Baffsky [2001] NSWCCA 332 at [49]: ‘It is not appropriate to parse and analyse judgments given on an ex tempore basis by judges of the District Court, who have a considerable caseload’.

   [5]Attorney-General v Kehoe [2001] 2 Qd R 350 at 356; Tully v McIntyre [2001] 2 Qd R 338.

1. That does not mean, however, that a busy Adjudicator is relieved of the obligation to provide reasons.  As the Court of Appeal has pointed out[6]:

The rationale for the requirement that courts give reasons for their decisions provides some guidance as to the extent of the reasons required.  The requirement has been explained, variously, as necessary: to avoid leaving the losing party with "a justifiable sense of grievance" through not knowing or understanding why that party lost; to facilitate or not frustrate a right of appeal; as an attribute or incident of the judicial process; to afford natural justice or procedural fairness; to provide "the foundation for the acceptability of the decision by the parties and the public" and to further "judicial accountability".

[6]            Drew v Makita (Australia) P/L [2009] QCA 66.

1. The learned Adjudicator’s failure to provide reasons is a failure of a fundamental requirement of the tribunal to provide procedural fairness and natural justice.  That failure has been compounded in this case by the rushed manner in which the hearing was conducted and that the learned Adjudicator gave neither party an opportunity to present an argument to the tribunal without interruption.

1. Because the learned Adjudicator has not provided reasons for his decision, I am unable to determine whether Mr Griffioen is likely to receive substantive relief on appeal but I am satisfied that there is, at least, an arguable case and the parties should have the benefit of a proper opportunity to argue their case and be given reasons for the decision, whatever it may be.  Leave to appeal should be granted; the appeal allowed; the learned Adjudicator’s decision set aside and the proceeding referred back to the tribunal for a hearing before a different adjudicator.