Kelly v May
[2012] QCATA 58
•5 March 2012
| CITATION: | Kelly v May and Anor [2012] QCATA 58 |
| PARTIES: | John Stuart Kelly |
| v | |
| Cheryl May Michael William Power |
APPLICATION NUMBER: APL418-11
| MATTER TYPE: | Appeals |
HEARING DATE: 17 January 2012
HEARD AT: Brisbane
| DECISION OF: | Judge Fleur Kingham, Deputy President |
DELIVERED ON: 5 March 2012
DELIVERED AT: Brisbane
ORDERS MADE: 1. Leave to appeal is refused.
| CATCHWORDS : | APPEAL – LEAVE TO APPEAL – PROCEDURAL FAIRNESS – where landlord was represented by the real estate agent at the hearing –where landlord alleged the agent is not able to represent him properly – where the representative was the landlord’s choice – where landlord had notice of the matter considered at the hearing – whether landlord was denied procedural fairness Queensland Civil and Administrative Tribunal Act2009, ss 32, 137, 139(4) Cachia v Grech [2009] NSWCA 232 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
Ms May and Mr Power formerly leased residential premises from the Appellant Dr Kelly for a period of two and a half years. During the tenancy the Respondents informed the real estate agency of a number of defects which required repair. At the termination of the tenancy the Respondents commenced a claim for the sum of $5,212.50 asserting that Dr Kelly’s failure to repair the reported defects to the premises constituted a breach of section 185 of the Residential Tenancies and Rooming Accommodation Act 2008. Dr Kelly brought a counter claim for the sum of $1,300.50 for cleaning and repairs to the property.
On 6 October 2011 Magistrate Warfield awarded $2,730.00 to Ms May and Mr Power, in addition to filing fees, and ordered that the Residential Tenancies Authority return the rental bond of $1,300.00 to Ms May and Mr Power. The learned Magistrate also awarded $635.00 to Dr Kelly to be set off against the amount due to Ms May and Mr Power. The total award ultimately payable to Ms May and Mr Power was $2,095.00.
Dr Kelly now seeks leave to appeal this decision. Dr Kelly asserts that his representative at the hearing, Mr Fieldus of Ray White Real Estate, was not able to properly represent his claim or defence against the Respondents’ application, having only been the real estate agent for the last six months of the tenancy. In essence, Dr Kelly claims that he was not afforded an opportunity to properly put his case before the learned Magistrate and therefore has been denied procedural fairness.
The question whether or not leave to appeal should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[4]
[1] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2] Cachia v Grech [2009] NSWCA 232 at 2.
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
For reasons which follow, Dr Kelly has not persuaded me that he should have leave to appeal.
Notice of the claim
Mr Power and Ms May’s originating application was lodged on 26 July. Included with the application was an itemised list of monies claimed and the basis for each, and a further statement refuting the amounts Ray White Real Estate proposed to retain from the rental bond. Dr Kelly’s counter-claim and submissions were lodged on 8 September 2011, and the hearing of both matters occurred one month later. Dr Kelly was interstate at the time and did not attend the hearing, electing Mr Fieldus to appear on his behalf.
As Mason J (as his Honour then was) observed in Kioa v West,[5] the requirements of procedural fairness must be adjusted to the statutory framework governing the Tribunal in question:
What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting: Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 552-3; National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 at 311, 319-321.
In this respect the expression “procedural fairness” more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations …
[5] (1985) 159 CLR 550 at 584-585.
Finality in litigation is highly desirable, as any further action beyond the hearing can be costly and unnecessarily burdensome on the parties.[6] Dr Kelly was provided ample notice that the claim and counter-claim were to be determined at the hearing, and of the issues that were going to be raised. Dr Kelly was free to present his arguments at the hearing as he saw fit. No lack of procedural fairness arises from Dr Kelly’s decision to be represented at the hearing by Mr Fieldus.
Grounds of appeal
[6] See Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Kirby and Gummow JJ.
Dr Kelly does not point to any specific matters or arguments which he believes were not properly raised and discussed at the hearing, nor does he identify any error on the part of the learned Magistrate. Rather, Dr Kelly’s application refers only to the factual findings. In essence, Dr Kelly requests the matter be reopened.
Reopening may be appropriate where a party did not attend a hearing and had a reasonable excuse for doing so, or where new evidence has arisen that was not reasonably available at the time of the hearing.[7] Neither has occurred here. There is no reopening ground made out.
[7] Sections 137, 139(4) Queensland Civil and Administrative Tribunal Act 2009.
There is no suggestion that Dr Kelly suffered any unfairness in the history of the claim or the conduct of the hearing. It was within his power to decide whether to attend the hearing and represent himself, or to have his agent do so. The consequences flowing from such a tactical decision are not attributable to a fault on the part of either the tenant or the learned Magistrate.
Dr Kelly has not identified any lack of procedural fairness and there was no error of law. For these reasons leave to appeal is refused.
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