Jones v Catania
[2010] QCATA 8
•27 April 2010
| CITATION: | Jones v Catania [2010] QCATA 8 |
| PARTIES: | Frances Margaret JONES (Applicant) |
| v | |
| Jennifer CATANIA (Respondent) |
APPLICATION NUMBER: APL013-10
| MATTER TYPE: |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | President |
DELIVERED ON: 27 April 2010
DELIVERED AT: Brisbane
ORDERS MADE: Application for leave to appeal refused
| CATCHWORDS : | PRACTICE AND PROCEDURE – FAILURE TO RECEIVE NOTICE OF HEARING – where applicant failed to provide the Tribunal with personal address for service and supplied incorrect address for her legal representative – whether leave to appeal should be granted PROCEDURAL FAIRNESS – FAILURE TO RECEIVE NOTICE OF HEARING – where applicant supplied incorrect address for service for her legal representative - where applicant had notice hearing was to be set down by specified date – whether occasion of procedural unfairness Queensland Civil and Administrative Tribunal Act 2009, ss 61(1)(c), 92(a) |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: |
| RESPONDENT: |
REASONS FOR DECISION
On 20 January 2010 an adjudicator ordered that Ms Frances Jones pay her former landlord Mrs Catania $5,871 for compensation under the Residential Tenancies and Rooming Accommodation Act 2008.
The sum was made up of arrears of rent, water usage charges, cleaning costs and repairs. At the same time the adjudicator ordered that the Residential Tenancies Authority pay the bond $1,400 it held to Mrs Catania in part satisfaction of the judgement.
Ms Frances Jones says she never received notice of the hearing on 20 January 2010, and seeks leave to appeal. The central question is whether or not she should have leave in circumstances where, the evidence shows, she declined to provide this Tribunal or its predecessor with a personal address for service for herself; gave an incorrect address for her legal representative; and, the legal representative was informed about the hearing date.
There is a complication in the matter. Sometime after 20 January Ms Frances Jones’ lawyer, Ms Debbie Jones, a field officer at the Strathpine office of the Aboriginal & Torres Strait Islander Legal Service (Qld) Ltd, wrote to the Registrar claiming that mail had been incorrectly addressed and that her client did not receive notice of the hearing on 20 January 2010.
Another QCAT adjudicator (not the one who heard the matter on 20 January) directed that the letter be treated as an application for re-opening under s 138 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) and made orders that Ms Frances Jones file written submissions in support of the application to re-open by 10 February, and that Mrs Catania respond by 17 February.
Both parties ignored those orders. On 18 February Ms Jones filed her application for leave to appeal. On 23 February it was ordered that the application be determined by written submissions from the parties without oral submissions, and a timetable for submissions from both parties was set. Each has complied.
It is an embarrassment that two orders of differing effect have been made. Each party has, however, chosen to ignore the order of the second adjudicator and proceed with orders arising in the application for leave to appeal. If a re-opening had been granted, the best Ms Jones might have achieved is a fresh hearing on the merits: QCAT Act, s 140. If she were to succeed in her application for leave to appeal, and any subsequent appeal, she would be same position. When she has herself apparently elected to proceed by way of an application for leave to appeal there is not, in the circumstances, any procedural unfairness if that application is determined.
The original proceeding between Mrs Catania and Ms Jones was listed for hearing before the Small Claims Tribunal at Brisbane on 18 December 2009. At the hearing on 20 January 2010 Mrs Catania gave evidence on oath that the proceedings were adjourned on that day at Ms Jones request and that, on that occasion, she gave her address for service as care of her advocate, Ms Debbie Jones, c/- Aboriginal Legal Aid GPO Box 2449 Brisbane Qld 4001. That evidence is consistent with a document on the Small Claims Tribunal file, adjoining the order of 18 December, showing that postal address for Legal Aid Queensland.
Ms Frances Jones’ only ground advanced in her application for leave to appeal is that she was not notified of the last court date on 20 January. The Small Claims Tribunal file does show that notice of a hearing on 20 January was sent to Ms Jones c/- Debbie Jones at the address mentioned above and returned marked ‘not at this address’.
Ms Debbie Jones’ letter of 28 January 2010 says this address was incorrect, and the proper mail address was GPO Box 2064 Strathpine Qld 4500. Ms Frances Jones does not claim that she ever provided the Small Claims Tribunal or QCAT with the Strathpine address.
Notice of a hearing must be given to each party to a proceeding: QCAT Act, s 92(a). QCAT Rule 36 also provides that a party to a proceeding must file a statement of address for service and give a copy to each other party. Ms Jones never did that.
The learned adjudicator who conducted the hearing on 20 January 2010 gave reasons in which she observed that the notice had been forwarded to the address at GPO Box 2449 Brisbane Qld 4001; that it had been returned marked ‘not at this address’; and then said ‘…that address was provided by the respondent herself and is, in effect, although it does not comply with the rules of the Tribunal, an address that she has provided for service in the proceedings. So I waive compliance with the rules relating to the requirement that the notice be in writing and I am satisfied that notice has been given of the hearing today’.
The waiver referred to by the learned adjudicator (apparently, under s 61(1)(c) of the QCAT Act) was only ordered after evidence, on oath, from Mrs Catania that the original correspondence had been returned unclaimed; that Mrs Catania had made enquiries and established the whereabouts of Ms Debbie Jones; that pursuant to the adjudicator’s order of 18 December 2009 that she provide copies of all rental receipts and statements evidencing rental monies to Ms Debbie Jones, she had delivered them to an office adjoining that of the Aboriginal Legal Aid office at Strathpine on 15 January 2010; and that on Monday 18 January Mrs Catania had a telephone conversation with Ms Debbie Jones and told to whom the documents related, and of the hearing date.
It is also relevant that the order of 18 December 2009 adjourned the matter ‘…to a date to be fixed before 21 January 2010’ and that Ms Frances Jones was present at that hearing and was, therefore, alerted to the fact that it would occur sometime before that date.
It cannot be said that, in the circumstances, the learned adjudicator was in error in concluding that Mrs Catania had done everything required of her in terms of the order of 18 December 2009; that Ms Frances Jones had received, through Ms Debbie Jones, notice of the new hearing date in circumstances where any delay in giving that notice was caused by Ms Frances Jones giving an incorrect address on 18 December 2009; and that, therefore, a waiver of the requirements of s 92 was warranted.
No question of procedural unfairness arises in those circumstances. Ms Frances Jones had it within her power to provide an address for service on 18 December 2009. She chose not to provide a personal address for service but rather one for a legal representative, and that address was incorrect.
It is also to be observed that, as the transcript of the proceedings before the learned adjudicator on 20 January 2010 shows, she was careful to require both evidence on oath from Mrs Catania and verification from invoices and receipts in respect of her claims for outstanding rent and the other heads of compensation. A letter accompanying Ms Frances Jones’ application for leave to appeal does not refer to any evidence contradicting that upon which the adjudicator based her decision, save for a minor aspect of the claim relating to carpet cleaning.
In the result, nothing in the application shows that an occasion of procedural unfairness has arisen; that the learned adjudicator fell into error; or, that any important principle arises, for which leave to appeal is warranted.
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