McFarlane v Department of Transport and Main Roads

[2023] QCATA 70

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

McFarlane v Department of Transport and Main Roads [2023] QCATA 70

PARTIES:

WENDY MCFARLANE

(appellant)

v

DEPARTMENT OF TRANSPORT AND MAIN ROADS

(respondent)

APPLICATION NO/S:

APL333-21

ORIGINATING APPLICATION NO/S:

MCDT1423/21

MATTER TYPE:

Appeals

DELIVERED ON:

30 May 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

Leave to appeal is refused

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – RESIDENTIAL TENANCY AGREEMENT – ARREARS OF RENT – FRESH EVIDENCE – where applicant fell into arrears of rent – where the respondent issued notice to leave – where tenancy terminated – where proceedings brought to recover rent – whether grounds to interfere with original decision

Queensland Civil and Administrative Tribunal Act 2009 ss 28 and 142(3)(a)(i)

Clarke v Japan Machines (Australia) Pty Ltd [1984] Qld R Rintoul v State of Queensland & Ors [2018] QCA 20

Terera v Clifford [2017] QCA 181

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

1. This appeal arises from a residential tenancy agreement entered into between Ms McFarlane and the Department of Transport and Main Roads (“Department”) in respect of residential premises at Kenmore. Ms McFarlane had been a tenant in the premises since 2012.

2. In January 2021 a dispute arose concerning arrears of rent. During the onset of the Covid 19 pandemic the Department provided rent relief from $480/wk down to $162/wk. However in January 2021 the Department gave notice that the rental would return to the normal rent payable prior to the pandemic. After the rent returned to $480/wk Ms McFarlane fell into arrears. In late 2020 and early 2021 there were extensive negotiations between Ms McFarlane and the Department to try and come to some solution to reduce the arrears. This included allowing Ms McFarlane to sublet or share with another tenant.  Despite attempts to negotiate with Ms McFarlane to reduce arrears, according to the Department, a satisfactory solution could not be reached so the Department issued a Notice to Leave.

3. An application was then filed in the Tribunal to terminate the tenancy for non-payment of rent and recover the arrears of rent. Annexed to the application is an extensive statement of the history of the dispute and particulars of the negotiations conducted with Ms McFarlane to assist with the arrears of rent.

4. Before application could be heard, Ms McFarlane vacated the property on 3 May 202.

5. The application came on for hearing on 17 November 2021. Ms McFarlane did not attend the hearing. Her reasons for not attending was because of a medical condition and she did not have sufficient time to prepare her “defence” to the Department’s claim. I must say, having read the Department’s material in support of the application, it would seem that a thorough and complete history of the matter was provided to the Tribunal. Also, there is a full and complete rent ledger 29 July 2011 to 3 May 2021 which records all debits and credits.

6. When the matter came of for hearing, all of this material was before the learned adjudicator. The representative of the Department referred to the rental ledger, advised that the bond had been used to reduce the arrears and the balance of 2,800.09 arrears of rent was due an owning. Accordingly, the Tribunal made an order that Ms McFarlane pay to the Department the arrears of rent. On the material before the learned adjudicator no other outcome was possible.

7. After the decision, Ms McFarlane applied to the Tribunal to reopen the case due to her inability to attend the hearing for medical reasons. That application was dismissed. She also applied for a stay of the decision but that was dismissed as well. She then filed an application for leave to appeal or appeal on 30 November 2011.

8. Her grounds of appeal are essentially the grounds for which she sought to reopen, that is her failure to attend and being able to present her case for the reasons stated above. However that question had already been decided in the re-opening application. Not only does she rely on a medical certificate for not attending the hearing but also because of financial hardship. There are no grounds identifying any error in the decision of the Tribunal at first instance.

9. As this is an appeal brought under s142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 in respect of a decision in a proceeding for minor civil dispute an appeal may be made only if the party has obtained leave of the tribunal. In Rintoul v State of Queensland & Ors [2018] QCA 20 at [10] the Court of Appeal reiterated the general principles:

   The principles governing a grant of leave to appeal are well-established. In short, an applicant for leave to appeal must show:

   (a)  the appeal is necessary to correct a substantial injustice;

   (b)  there is a reasonable argument that there is an error to be corrected.

   There must be reasonable prospects of success to warrant a grant of leave. Therefore, in deciding whether to grant leave to appeal the Court usually makes some preliminary assessment of the prospects of the proposed appeal[1]  

   [1]Citing Terera v Clifford [2017] QCA 181

10. Ms McFarlane has filed material going to the failure of the Tribunal to notify her in a timely manner of the hearing date (again dealt with in the re-opening) and meta data as to the time taken for the adjudicator to consider the re-opening application. None of this material is relevant to the decision under appeal. She also challenges the factual findings as to the amount owning. She contends that the Department refused to be reasonable and exhibits a payment plan schedule for the period between 1 January 2021 and 2 July 2021 to contend that this was a fair proposal put to the Department and rejected. Once again, this is not relevant to the primary decision.

11. What Ms McFarlane is attempting to do, which is often the case with self-represented parties is to litigate the issues that she wanted to put before the original decision maker. That is not the purpose of an appeal. Further, the material she is relying on is largely fresh evidence, which was not before the Tribunal at first instance. It was certainly available and even if it were allowed it is difficult to see that it would have a significant impact on the outcome of the case.[2] This is in light of the credible and comprehensive rent ledger that was before the learned adjudicator.

    [2]Clarke v Japan Machines (Australia) Pty Ltd [1984] Qld R 404 at 408

12. Ms McFarlane has not established any basis upon which I can interfere with the learned adjudicators decision so leave to appeal must be refused.