Holliman v Meehan

[2012] QCATA 263

CITATION: Holliman v Meehan and Anor [2012] QCATA 263

PARTIES:	Glenn David Holliman
v
Michael Meehan Kristyna Meehan

APPLICATION NUMBER:            APL139-12   

MATTER TYPE:

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: Richard Oliver, Senior Member
David Paratz, Member

DELIVERED ON:   14 December 2012

DELIVERED AT:   Brisbane

ORDERS MADE:       Leave to appeal refused.

CATCHWORDS: MINOR CIVIL DISPUTE – where no ground of appeal

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined 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 Mr Paratz, QCAT Member and me.  I have had the benefit of reading his reasons in draft.  I agree with his reasons, and his conclusions, and the order he proposes.

Mr Paratz

1. This is an application for leave to appeal from a decision of the Tribunal made on 18 April 2012 at Brisbane.

1. Orders were made terminating a residential tenancy for premises at 4/87 Victoria Terrace, Greenslopes, Brisbane, as of midnight on 2 May 2012, for a warrant of possession to issue, for Mr Holliman to pay rental arrears of $6,418.70, and for the bond of $1,560 to be paid to Mr and Mrs Meehan.

1. Mr Holliman filed a handwritten application for leave to appeal on 9 May 2012, and stated his grounds of appeal as:

“I do have access to the necessary monies to pay both what is outstanding and to pay future rent.  It is just taking longer than expected to receive these funds, due to circumstances beyond my control.”

1. Directions were made on 10 May 2012 requiring Mr Holliman to file written submissions by 31 May 2012, and for Mr and Mrs Meehan to file submissions in reply within 28 days after receipt of those submissions.

1. For reasons that are not obvious, Mr Holliman then filed an almost identical typed application for leave to appeal on 17 May 2012, but this annexed “Attachment 1” which consists of material relating to Mr Holliman’s financial situation and a claim for income protection insurance by him.

1. Mr and Mrs Meehan filed submissions on 27 June 2012.  It is not clear from those submissions as to what submissions of Mr Holliman it is replying.  Presumably they were replying to the “Attachment 1” to the second application that was filed.

1. However, the Tribunal Registry received a telephone call from Mr Holliman on 4 June 2012 advising that he had been in hospital and was late filing his material, and he would endeavour to email his submissions either that day or the next.

1. No further submissions as to the appeal from Mr Holliman appear on the Tribunal file.

1. There appears to have been some confusion in the process as to whether Mr Holliman had lodged submissions on time or not.  It may be that the filing of a second application by Mr Holliman; and the act of Mr and Mrs Meehan in lodging their submission; has confused the process, as the direction required them to file submissions “in reply”.

1. Accordingly the matter had been placed for a decision on the application for leave to appeal as if there were full submissions from both parties requiring decision.

1. This confusion is regrettable, and has delayed a decision on this application.

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 grounds of appeal filed by Mr Holliman show no basis to challenge the decision of the learned adjudicator.

1. The financial situation that Mr Holliman finds himself in, or his potential to recover funds at some time in the future from an insurance policy, do not affect the merits of the decision of the adjudicator.

1. Further, the failure of Mr Holliman to file submissions as directed should have had the effect of causing his application to be dismissed without a hearing or further notice in accordance with direction 5.

1. There is no question of general importance that should be determined by the Appeal 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.