Jayanti v Kondireddy - [2022] QCATA 93

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Jayanti v Kondireddy [2022] QCATA 93

PARTIES:

VAMSI MOHAN JAYANTI

(appellant)

v

MAHESHWAR REDDY KONDIREDDY

(respondent)

APPLICATION NO:

APL266-21

ORIGINATING APPLICATION NO:

MCDO69/21

MATTER TYPE:

Appeals

DELIVERED ON:

23 June 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member JR McNamara

ORDERS:

1.   Leave to appeal is granted.

2.    Appeal allowed.

3.   The application of the respondent Maheshwar Reddy Kondireddy filed 16 July 2021 is dismissed.

4.    Orders 1 and 2 made 29 September 2021 are set aside.

CATCHWORDS:

APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW –DENIAL OF NATURAL JUSTICE where respondent sought compensation from appellant neighbour for construction of dividing fence under Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) – where appellant was not served with originating application – where appellant was served with hearing notice – where appellant did not appear at hearing – where application under Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) could not succeed for procedural failures – where tribunal proceeded to determine matter as a debt dispute – where debt dispute engaged different procedural steps – where tribunal waived requirement for personal service – where appellant had no opportunity to respond to application as a debt dispute – where appellant was denied natural justice – where leave to appeal and appeal allowed

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011(Qld) s 31, s 35

Queensland Civil and Administrative Tribunal Act2009 (Qld) s 28, s 29, s 61, s 142

Chandra v Queensland Building and Construction Commission [2014] QCA 335, considered

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

Background

On 16 July 2021, Maheshwar Reddy Kondireddy (for convenience I will refer to this party simply as ‘Kondireddy’) and Madhuri Sareddy (not a party to this appeal) filed an ‘Application for minor civil dispute – dividing fences – Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 and Building Act 1975’. Kondireddy sought an order for the contribution of $1260 towards the cost of a dividing fence from the owner of his neighbouring property, Vamsi Mohan Jayanti (for convenience I will refer to this party simply as ‘Jayanti’).
On 23 July 2021, the tribunal sent a notice of hearing to Jayanti informing him that the matter was listed for hearing at Ipswich at 3pm on Wednesday 29 September 2021. The notice identified the parties and the claim number and stated: “If you do not attend the hearing, the tribunal may hear and decide the matter in your absence, including making orders against you.”
The matter was heard at Ipswich on 29 July 2021. Kondireddy (and Sareddy) appeared. Jayanti did not appear. The only evidence before the hearing member appears to have been provided by Kondireddy (and Sareddy). A decision was made, and reasons given ex tempore.
A copy of…

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: [2022] QCATA 93
Decision Date: 23 June 2022

CaseChat Overview and Summary

Jayanti and Kondireddy were neighbours who disputed the construction of a dividing fence between their properties. Kondireddy sought compensation from Jayanti under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld). Jayanti was not served with the originating application but was served with a hearing notice. He did not attend the hearing due to a family emergency. The tribunal proceeded to determine the matter as a debt dispute, despite the application under the Neighbourhood Disputes Act not succeeding due to procedural failures. Jayanti was denied an opportunity to respond to the application as a debt dispute, which deprived him of natural justice. Jayanti sought leave to appeal, which was granted, and the appeal was allowed.

The legal issues in this case were whether Jayanti's failure to appear at the hearing, despite not being served with the originating application, deprived him of natural justice, and whether the tribunal's decision to proceed with the matter as a debt dispute was fair. The court held that Jayanti's failure to appear did not, in itself, disentitle him to natural justice, but the tribunal's decision to proceed with the matter as a debt dispute was unfair as it deprived him of an opportunity to respond. The appeal tribunal found that the evidence was contradictory or opaque and that the timing of events was unclear. The appeal tribunal concluded that the application as framed could not succeed, and the tribunal should not have proceeded with the matter as a debt dispute without giving Jayanti an opportunity to respond.

The court allowed the appeal and granted leave to appeal. The orders of the tribunal made on 29 September 2021 were set aside, and the application of the respondent was dismissed. This case highlights the importance of ensuring that all parties to a proceeding have an opportunity to respond to the claims made against them and that the tribunal takes all reasonable steps to ensure that each party understands the nature of the assertions made in the proceedings and the legal implications of those assertions.

Orders

Orders of the court

1. Leave to appeal is granted.

2. Appeal allowed.

3. The application of the respondent Maheshwar Reddy Kondireddy filed 16 July 2021 is dismissed.

4. Orders 1 and 2 made 29 September 2021 are set aside.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In Chandra v Queensland Building and Construction Commission, Peter Lyons J (with whom Margaret McMurdo P and North J agreed) said:“Section 29(1)(a)(ii), consistently, requires the tribunal to take all reasonable steps to ensure each party to a proceeding understands the nature of assertions made in the proceedings and the legal implications of the assertions. This provision also requires the tribunal to take all reasonable steps to "understand the actions, expressed views and assertions" of a party to a proceeding before it, with specific reference to the party's age, any disability, and cultural, religious and socioeconomic background. Section 95(1) requires the tribunal to allow a party to a proceeding reasonable opportunity to do a number of things, including calling or giving evidence, and making submissions. These things are consistent with the objects of the Act, which include to have the tribunal deal with matters in a way that is fair.” [8][8] [2014] QCA 335 [24].Decision Under s 142(3) of the QCAT Act, an appeal on a question of fact, or a question of mixed law and fact, may be made only if the party has obtained the appeal tribunal’s leave to appeal. While Jayanti’s application for leave and appeal does not engage with the basis upon which the member determined the matter, it did not do so because that basis was, at the time, not known to him. The matters raised in Jayanti’s application take issue with aspects of the evidence of Kondireddy. The member, in the absence of material from Jayanti, came to a similar view and concluded that the application as framed could not succeed. As noted, Jayanti did not appear at the hearing, and sometime later advised that his non-attendance was the result of a family emergency. Jayanti had not been served with the application. He was served with a notice to appear. The notice to appear identified the parties, the file number and the time and place of the hearing. It did not identify the nature or purpose of the hearing and the application that gave rise to it. Despite this, the risk of non-attendance had been spelt out in the Notice of Hearing: “If you do not attend the hearing, the Tribunal may hear and decide the matter in your absence, including making orders against you.” Jayanti’s failure to appear should not, for that reason alone, disentitle him to natural justice. When it became apparent to the hearing member that the application as framed could not succeed, but that there might be another basis upon which the dispute could be prosecuted, consideration needed to be given to whether the matter could be fairly dealt with in the absence of Jayanti. Relevant to the consideration of whether the matter could fairly proceed at that point is the fact that Jayanti would have been entitled to file a response had the claim been commenced as a ‘debt dispute’. Relevant also to that consideration were aspects of the evidence which are somewhat contradictory or opaque. The documentary evidence, including screenshots of text messages, is in many cases subjective and/or equivocal. The account of conversations (said to establish an oral contract) drawn from the hearing transcript and the limited written material is in my view inconclusive. The timing of events (relevant to the terms of an oral contract) as disclosed in the material before the appeal tribunal is similarly unclear.

Ratio Decidendi

Legal Principle Established

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