Hughes v Fogarty & Anor - [2024] QCATA 21

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Hughes v Fogarty & Anor [2024] QCATA 21

PARTIES:

MERRYN HUGHES

(applicant/appellant)

v

MARY ANN FOGARTY

(first respondent)

and

KERRY PARKER

(second respondent)

APPLICATION NO/S:

APL030-24

ORIGINATING APPLICATION NO/S:

MCDT1468/20 (Southport)

MATTER TYPE:

Appeals

DELIVERED ON:

27 February 2024

HEARD AT:

Brisbane

DECISION OF:

Member Lember

ORDERS:

1.     Time for filing the application for leave to appeal or appeal the decision made in MCDT1468/20 on 5 December 2023 is extended to 24 January 2024.

2.     Leave to appeal the decision of 5 December 2023 is granted.

3.     Appeal allowed.

4.     The decision made in MCDT1468/20 on 5 December 2023 is set aside.

5.     The Principal Registrar is requested to refund to the applicant the fee paid on the application for leave to appeal or appeal filed 24 January 2024.

6.     The Principal Registrar is directed to:

(a)     serve a copy of the application in a residential tenancy dispute (MCDT1468/20) upon Merryn Hughes within seven (7) days; and

(b)     have the application in a residential tenancy dispute (MCDT1468/20) listed for rehearing in the Southport Registry as soon as practicable, but allowing at least thirty (30) days after the application in a residential tenancy dispute (MCDT1468/20) is served upon Merryn Hughes.

CATCHWORDS:

APPEAL – APPLICATION FOR LEAVE TO APPEAL – MINOR CIVIL DISPUTE – residential tenancy dispute – where primary judgment entered for tenants in absence of lessor – where lessor not served with the application in a residential tenancy dispute – where primary proceedings void for want of due process – where on rehearing primary judgment was again entered in the absence of the lessor where the lessor had still not been served with the application – where second decision on rehearing void for want of due process

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 4, s 13, s 32, s 61, s 93, s 143

Body Corporate for No 9 Port Douglas Road v McEvoy [2011] QCATA 292

Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69
Cachia v Grech [2009] NSWCA 232
Crime and Misconduct Commission v Chapman [2011] QCAT 229
Etherton v Public Service Board of NSW [1983] 3 NSWLR 297
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
Haoucher v Minister of Immigration and Ethnic Affairs (1990) 169 CLR 648 at 660-666
Hughes v Fogarty [2022] QCATA 190
Johnson v Miller (1937) 59 CLR 467
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
The Pot Man Pty Ltd v Reoch [2011] QCATA 318

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

What is the application about?

Twice now, a residential tenancy dispute has been decided in the minor civil disputes ‘MCD’) jurisdiction in the absence of the respondent lessor, in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] QCATA 21
Decision Date: 27 February 2024

CaseChat Overview and Summary

The case of Hughes v Fogarty & Anor involved a residential tenancy dispute, where the tenants, the respondents, were seeking a judgment against the landlord, the applicant. The matter was heard in the Queensland Civil and Administrative Tribunal, and the applicant subsequently sought leave to appeal the primary judgment which was entered in their absence. The applicant contended that they had not been served with the application and that the original and subsequent proceedings were void due to the lack of due process.

The legal issues before the court centred on the validity of the primary judgment and the rehearing, both of which were conducted without the applicant being served. The court had to determine whether the failure to serve the application rendered the proceedings void and if the rehearing, where the applicant was again absent, was similarly flawed. Additionally, the court needed to consider whether the applicant had a valid reason for not being served and if the application for leave to appeal was made within a reasonable time.

The court found that the primary judgment was indeed void due to the lack of service on the applicant, and the rehearing was also void for the same reason. Despite the applicant's absence, the court acknowledged the procedural error and granted the application for leave to appeal. The appeal was subsequently allowed, and the decision of 5 December 2023 was set aside. The court also ordered the refund of the application fee to the applicant and directed the Principal Registrar to serve the application on the landlord and to list the matter for rehearing once the application had been served.

In conclusion, the court's decision highlighted the importance of ensuring all parties are served in residential tenancy disputes to maintain the integrity of the proceedings. The court ordered a rehearing of the matter, with proper service to the landlord, and set aside the previous decisions due to the procedural errors.

Orders

Orders of the court

1. Time for filing the application for leave to appeal or appeal the decision made in MCDT1468/20 on 5 December 2023 is extended to 24 January 2024.

2. Leave to appeal the decision of 5 December 2023 is granted.

3. Appeal allowed.

4. The decision made in MCDT1468/20 on 5 December 2023 is set aside.

5. The Principal Registrar is requested to refund to the applicant the fee paid on the application for leave to appeal or appeal filed 24 January 2024.

6. The Principal Registrar is directed to:

(a) serve a copy of the application in a residential tenancy dispute (MCDT1468/20) upon Merryn Hughes within seven (7) days; and

(b) have the application in a residential tenancy dispute (MCDT1468/20) listed for rehearing in the Southport Registry as soon as practicable, but allowing at least thirty (30) days after the application in a residential tenancy dispute (MCDT1468/20) is served upon Merryn Hughes.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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