Horne v Crestwood Heights Real Estate
[2011] QCATA 303
•2 November 2011
| CITATION: | Horne v Crestwood Heights Real Estate [2011] QCATA 303 |
| PARTIES: | Mr Phillip Vernon Horne |
| v | |
| Crestwood Heights Real Estate |
APPLICATION NUMBER: APL091-11
| MATTER TYPE: | Appeals |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Richard Oliver, Senior Member Peta Stilgoe, Member |
DELIVERED ON: 2 November 2011
DELIVERED AT: Brisbane
ORDERS MADE: Leave to appeal refused.
| CATCHWORDS : | MINOR CIVIL DISPUTE – tenancy dispute – where two proceedings reopened – where appellant failed to appear on both reopened hearings – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009, s 139(5) Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226 |
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
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
Mr Horne was a tenant of a property managed by Crestwood Heights Real Estate. Two proceedings arose from his tenancy. Mr Horne has applied for leave to appeal in both proceedings.
The first proceeding
On behalf of the owner, Crestwood applied for payment of rent arrears, “departure costs” and replacement of missing items. On 6 May 2010, in Mr Horne’s absence, the Tribunal ordered that the residential tenancy bond be paid to the owner and that Mr Horne pay $2,903.27 to the owner within 7 days.
Mr Horne applied for, and was granted, leave to reopen that decision.
The new hearing was set down for 14 July 2010. Mr Horne sought an adjournment of that hearing. The adjournment was not granted and the hearing proceeded. Once again, Mr Horne failed to attend and, once again, the Tribunal ordered that he pay $2,903.27.
Mr Horne made another application to reopen the proceeding. That application was refused.
The second proceeding
Mr Horne brought an application for compensation because of his dissatisfaction with the condition of the tenancy. The application was heard in Mr Horne’s absence on 29 June 2010 and his claim was dismissed.
Mr Horne applied for, and was granted, leave to reopen that decision.
The new hearing was set down for 17 September 2010. Mr Horne did not appear so, once again, his claim was dismissed.
This appeal
Mr Horne has appealed the decisions on the grounds that he wants “to be given a fair trial in front of a Magistrate in a real Court with real laws with an unbiased adjudicator.”
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?
Mr Horne’s stated grounds for leave to appeal are misconceived. The jurisdiction for residential tenancy matters now lies with the Tribunal. Even if he is successful in the application for leave to appeal, there is no possibility that Mr Horne will have his claim ventilated in the Magistrates’ Court before a Magistrate. Although not a Court, the Tribunal is the “real” forum for adjudication of this dispute by the application of the relevant law.
Mr Horne’s allegation of bias seems to be that he was ignored by the learned Adjudicator. In particular, he complains that the learned Adjudicator ignored Mr Horne’s doctors’ certificates.
The transcript of the hearing on 25 August 2010 shows that the learned Adjudicator:
a) Advised Mr Horne that something more than the doctor’s certificate would be required if there was any further adjournment. The learned Adjudicator made this comment in light of the fact that even though the medical certificate stated Mr Horne was unfit for work, he was fit to move house.
b) Warned Mr Horne that if he failed to attend hearings on a regular basis and made repetitive requests for adjournments, his claim would be dismissed, as “it cannot languish forever with the matter not being dealt with.”
The transcript of 25 August 2010 does not reveal any bias by the learned Adjudicator. It would have been helpful if the learned Adjudicator’s comment about “repetitive requests for adjournments” was limited to, perhaps, requests that were without merit. That omission does not, however, change my view that there is no evidence of bias.
At the hearing on 17 September 2010, the learned Adjudicator noted that the Tribunal sent a notice of hearing to Mr Horne but there was no appearance from him. Again, I can find no evidence of bias by the learned Adjudicator.
The real question is whether Mr Horne has been denied natural justice by having these proceedings determined in his absence. That is another way of saying that the decisions to refuse the reopening of each proceeding a second time were wrong. Unfortunately for Mr Horne, there is no appeal from a decision to refuse an application to reopen a proceeding.[1]
[1] Section 139(5) Queensland Civil and Administrative Tribunal Act 2009.
The Tribunal has expressed the view[2] that:
The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, … the public as a whole, not merely the parties to the proceedings‟. Finality in litigation is highly desirable, because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties.
[2]Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226 at [13].
Mr Horne did not arrange his affairs so that he was available for the numerous Tribunal hearings. The evidence of his inability to attend hearings was not compelling and delivered late. The Tribunal allocated considerable resources to the two proceedings and Mr Horne did not take proper advantage of those opportunities. There needs to be an end to this litigation.
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.
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