Lovel v Uribe
[2013] QCATA 347
•3 December 2013
| CITATION: | Lovel v Uribe [2013] QCATA 347 |
| PARTIES: | James Lovel (Applicant/Appellant) |
| v | |
| Juan Uribe (Respondent) |
| APPLICATION NUMBER: | APL289 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe OAM |
| DELIVERED ON: | 3 December 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for an oral hearing is refused. 2. The application for leave to appeal granted. 3. The Appeal is allowed. 4. The decision of 8 July 2013 is set aside. 5. The notice to leave dated 23 May 2013 is set aside. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where notice to leave without grounds – where period of notice one day short of time required – whether tribunal had power to waive compliance with notice period PROCEDURE – where application for oral hearing of application for leave to appeal – whether appropriate to consider application for leave to appeal on the papers Queensland Civil and Administrative Tribunal Act 2009 ss 4(c), 32(2) Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 |
APPEARANCES and REPRESENTATION (if any):
The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Mr Lovel filed an application to set aside a notice to leave without grounds. An Adjudicator dismissed his application. Mr Lovel has filed an application for leave to appeal that decision.
Request for an oral hearing
The tribunal normally deals with applications for leave to appeal minor civil dispute decisions on the papers. Mr Lovel wanted an oral hearing. He submitted that Mr Uribe’s submissions were extensive and were prepared by a lawyer and that would give him an unfair advantage. He says that Mr Uribe has filed fresh evidence and that procedural fairness requires that he have an opportunity to address the tribunal about that fresh evidence.
There is nothing in the Queensland Civil and Administrative Tribunal Act 2009 that prevents a party engaging a lawyer to assist in drafting submissions or preparing material for the tribunal. That, in itself, is not a reason to grant an oral hearing.
Mr Lovel’s submissions are thorough and well written. Mr Uribe’s lawyers submit that Mr Lovel has a degree in law, as has his sister and co-tenant. Mr Lovel is at no disadvantage in the quality of his written submissions.
The tribunal may conduct a hearing entirely on the basis of documents.[1] The tribunal has an obligation to ensure proceedings are conducted in a way that is as quick as is consistent with achieving justice.[2] The tribunal has limited resources and there is some delay in dates for oral hearings. I am confident that the issues are sufficiently identified so that I can make a decision on the papers without the need for an oral hearing. I am also confident that this is a quick, cost effective procedure for the parties and the tribunal.
[1] QCAT Act s 32(2).
[2] Ibid s 4(c).
Fresh evidence
Mr Uribe has filed an affidavit from Ms Frawley in response to the application for leave to appeal. The affidavit sets out the history of Mr Lovel’s tenancy.
The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined[3]. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Mr Uribe have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?[4]
[3] QCAT Act ss 137 and 138.
[4] Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.
An application for leave to appeal is not, and should not be, an attempt to shore up the deficiencies of a party’s case at the initial hearing. Ms Frawley gave evidence and made submissions at the hearing. Mr Uribe does not explain why Ms Frawley did not give this evidence at the hearing. The evidence will not have an important impact on the result of the case. It should not be admitted.
The application for leave to appeal
Mr Lovel says that the tribunal erred in finding that the notice to leave was valid. He also says that the tribunal erred in finding that the notice to leave was not retaliatory.
Mr Lovel’s argument is simple, but compelling. He was entitled to two months’ notice for a notice to leave without grounds. In fact, the notice period was one day short of two months. The learned Adjudicator used s 349 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) to excuse the non-compliance but, as Mr Lovel points out, the learned Adjudicator did not have that power.
Section 349 is specific. The tribunal may excuse non-compliance on a lessor’s application for termination. The lessor did not file the application; Mr Lovel filed it. The tribunal may also excuse non-compliance if there is an application about a notice of intention to leave. That was not the application before the learned Adjudicator.
As Kingham DCJ has already determined, the Residential Tenancies and Rooming Accommodation Act is proscriptive about the requirements for issuing notices and commencing proceedings.[5] The learned Adjudicator could not extend the powers in s 349 to excuse non-compliance in this case.
[5] Lowe v Aspley [2010] QCATA 59 at [10].
This is not the lessor’s first attempt to remove Mr Lovel from the tenancy. It is surprising that the lessor’s agent did not take extra care to ensure strict compliance with the requirements of the Residential Tenancies and Rooming Accommodation Act.
Leave to appeal should be granted and the appeal allowed. The decision of 8 July 2013 is set aside. The notice to leave dated 23 May 2013 is set aside.
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