Mark Anthony Symes v Invest & Co Pty Ltd
[2022] QCATA 94
•29 June 2022
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Mark Anthony Symes v Invest & Co Pty Ltd [2022] QCATA 94
PARTIES:
MARK ANTHONY SYMES (appellant)
v
INVEST & CO PTY LTD (respondent)
APPLICATION NO/S:
APL287-21
ORIGINATING APPLICATION NO/S:
MCDT 1139/21
MATTER TYPE:
Appeals
DELIVERED ON:
29 June 2022
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member PG Stilgoe OAM
ORDERS:
Leave to appeal refused
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – leave to appeal – minor civil dispute – residential tenancy – where appellant did not appear in primary hearing – where appellant tried to make new submissions and give additional evidence – where no error was identified – where procedural fairness was not an issue
Queensland Civil and Administrative Tribunal Act 2009, s 142(3), s 32
Australian Broadcasting Commission v Bond (1990) 170 CLR 321
Chambers v Jobling (1986) 7 NSWLR 1
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Kioa v West (1985) 159 CLR 550
Pickering v McArthur [2005] QCA 294
Waterford v The Commonwealth (1987) 163 CLR 54
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
Mark Symes was the tenant of a property managed by Invest & Co Pty Ltd. On 19 April 2021, Mr Symes gave Invest & Co a Notice of Intention to Leave citing safety concerns about the property as his reason for leaving.
After Mr Symes left the property, Invest & Co filed a claim for rental arrears and other costs. Invest & Co had already received the $1280 bond.
Mr Symes did not appear at the hearing of the claim. The tribunal ordered Mr Symes pay Invest & Co $2915.41.
Mr Symes wants to appeal that decision on two grounds of appeal. Firstly, he claims that he was not able to attend the tribunal hearing due to other Court hearings and recovery from surgery. He also claims that Invest & Co breached its safety obligations by letting the property to him.
Mr Symes is also asking the appeal tribunal to:
(a)Order Invest & Co to pay him $5252.80 – this amount consists of $1240 for cancelled client meetings and $4012.80 which is 33% of 19 weeks rent.
(b)Charge Invest & Co for breaches of the Workplace Health and Safety Act, Electrical Safety Act, and for allowing the property to be let out in a state of disrepair.
(c)Charge Invest & Co a penalty of $10,000 for providing false and misleading information relating to the state of the property and return of the property keys.
The appeal tribunal has no power to investigate or penalise for breaches of the Workplace Health and Safety Act or the Electrical Safety Act.
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]Queensland Civil and Administrative Tribunal Act, s 142(3)(a)(i).
[2]Pickering v McArthur [2005] QCA 294 [3].
A failure to give a person the ability to be heard on an issue may be a breach of procedural fairness for which leave is granted. The question, then, is whether Mr Symes’ failure to attend the hearing was a breach of procedural fairness.
Mr Symes does not say that he did not get notice of the hearing. He says, simply, that he was unable to attend the hearing. He did not ask for an adjournment of the hearing. He did not apply to reopen the proceeding[3] which was the appropriate course. Although he has mentioned a number of factors that prevented him from attending the hearing, Mr Symes has provided no evidence to support those submissions.
[3]QCAT Act s 138.
Mr Symes was given an opportunity to make submissions against Invest & Co’s application but did not do so.
It is not the tribunal’s role to second guess why a party has not attended a hearing. It understands that parties have competing obligations and often have difficult situations in their lives. Ultimately, however, a party must take personal responsibility for complying with the tribunal’s requirements, including attendance at a hearing.
Mr Symes also claims that the property was unsafe and in a state of disrepair. He says that Invest & Co breached its safety obligations by letting this property to him initially.
Mr Symes’ safety concerns were already in the material before the tribunal. Mr Symes wrote about his safety concern in the Notice of Intention to Leave. The tribunal also had access to the entry condition report and exit condition report. Mr Symes could have filed his own application for compensation. He could have made submissions and provided evidence to the tribunal about his safety concerns. He did not do so. The tribunal was entitled to accept Invest & Co’s evidence.
The task of this appeals tribunal is to determine whether the tribunal made an error in its decision. It is not an opportunity for Mr Symes to make further submissions or present additional evidence. His claims about the property being unsafe and the material he has attached to this application does not show any error in the tribunal’s decision.
Orders
Leave to appeal should be refused.
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