Indorato Enterprises Pty Ltd and Panbar Pty Ltd t/as Ray White Smithfield v Kattab
[2014] QCATA 257
•1 September 2014
| CITATION: | Indorato Enterprises Pty Ltd and Panbar Pty Ltd t/as Ray White Smithfield v Kattab & anor [2014] QCATA 257 |
| PARTIES: | Indorato Enterprises Pty Ltd and Panbar Pty Ltd t/as Ray White Smithfield (Applicants/Appellants) |
| v | |
| Mohammad Kattab Nishant Kajaria (Respondents) |
| APPLICATION NUMBER: | APL347 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Thomas, President |
| DELIVERED ON: | 1 September 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 22 July 2013 is set aside. 4. Cairns MCDT344/13 is remitted to the tribunal for rehearing. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – RESIDENTIAL TENANCY DISPUTE – EVIDENCE – where video tendered by respondents was viewed and used to question applicant/appellant at hearing – where applicant/appellant had not seen video and was not given an opportunity to view it – where applicant/appellant could not properly respond to or make submissions in response to the evidence – whether denial of natural justice – whether grounds for leave to appeal PROCEDURE – where Magistrate closed hearing – whether circumstances existed to justify closed hearing Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 90 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 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 (Qld) (QCAT Act).
REASONS FOR DECISION
On 19 January 2013, only a few days after Messrs Kattab and Kajaria took possession of an apartment they rented through Ray White Smithfield, they complained about faulty venetian blinds, a leaking shower and rusty springs poking through the mattresses. On 8 February 2013, the tenants issued a notice to remedy breach. On 14 February 2013, they issued a dispute resolution request. On 10 July 2013, the tenants filed a claim for a rent reduction until the lessor addressed the maintenance issues. A Magistrate, sitting as a member of the tribunal, ordered a reduction of $10 per week rent for 84 weeks. He declined to order the lessor pay the tenant’s costs of “mattress toppers” but he did order the lessor pay two overdraft fees and the tenant’s filing fee.
Ray White Smithfield seeks to appeal the learned Magistrate’s decision on the basis that the order of rent reduction was excessive. It says that the learned Magistrate did not look at its evidence; that the learned Magistrate looked at video evidence on the tenants’ lap top but that its representative, Ms Thomas, did not have an opportunity to look at that video. It says the learned Magistrate erred in ordering payment of the overdraft fees because there was no evidence that the bank account statement supplied was for an account held by the respondents, and that the fees were incurred due to rent collection.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]
[1]QCAT Act s 142(3)(a)(i).
[2][2005] QCA 294 at [3].
The learned Magistrate watched a video tendered by Mr Kajaria.[3] Mr Kajaria tendered a flash drive copy of the video[4] which has been provided to the appeals tribunal with the original file. It must, therefore, be part of the tribunal record.
[3]Transcript page 1-4, line 35 to page 1-5, line5.
[4]Transcript page 1-5, line 37.
The learned Magistrate told Mr Kajaria that the video could not be part of the record[5] but then relied on it to question Ms Thomas.[6] Ms Thomas told the learned Magistrate that she had not seen the video[7] but the learned Magistrate took no steps to ensure that Ms Thomas could see the video.
[5]Transcript page 1-5, line 39-41.
[6]Transcript page 1-9, line 1.
[7]Transcript page 1-9, line 3.
The learned Magistrate’s action prevented a fair hearing, as Ms Thomas could not properly make submissions in response to the video. The learned Magistrate’s action was a denial of natural justice. A denial of natural justice is an error of law[8] which renders the learned Magistrate’s decision void.[9] Leave to appeal is granted and the appeal allowed. The decision of 22 July 2013 is set aside and the proceeding is remitted to the tribunal for rehearing.
[8]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.
[9]Ridge v Baldwin [1964] AC 40.
Closed Proceedings
Section 90(1) of the QCAT Act states that, unless an enabling Act provides otherwise, tribunal hearings must be held in public. The tribunal can direct that a hearing be held in private if it is considered necessary to: avoid interfering with the proper administration of justice; avoid endangering the physical or mental health or safety of a person; avoid offending public decency or morality; or for another reason in the interests of justice.[10]
[10]QCAT Act s 90(2).
The learned Magistrate told the parties that the hearing was closed and that there was a “big sign across” to that effect.[11] There is no evidence that the learned Magistrate turned his mind to any of the factors that might persuade him to conduct the hearing in private and the file does not reveal any reason for the hearing to be held in private. The learned Magistrate erred in purporting to close the proceedings.
[11]Transcript page 1-2, lines 13-14.
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