Oatley v Pertzel
[2011] QCATA 92
•13 April 2011
| CITATION: | Oatley v Pertzel [2011] QCATA 92 |
| PARTIES: | Christopher Oatley (Applicant/appellant) |
| v | |
| Ian Pertzel (Respondent) |
APPLICATION NUMBER: APL176-10
| MATTER TYPE: | Appeals |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Justice Alan Wilson, President |
DELIVERED ON: 13 April 2011
DELIVERED AT: Brisbane
ORDERS MADE: 1. Paragraphs 2, 3 and 4 of Part E of the respondent’s response and counter-claim filed on 7 October 2010 are struck out;
2. Leave to appeal is granted to the applicant;
3. The appeal is allowed but only to the extent of ordering that, in lieu of the order made by the learned Magistrate, the abandonment termination notice dated 1 June 2010 is set aside;
4. The applicant’s application for costs is dismissed.
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RENTAL TENANCIES – where a Magistrate ordered at first instance that a rented caravan site at the Glasshouse Mountains holiday village had not been abandoned – where the applicant seeks leave to appeal that decision on the grounds that the learned Magistrate erred by failing to accept certain evidence – whether leave to appeal should be granted APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RENTAL TENANCIES – APPLICATION TO STRIKE OUT – where the respondent filed a response and counterclaim – where the applicant has applied to have the response and counterclaim struck out – whether the application for leave to appeal is frivolous, vexatious or misconceived; lacking in substance; or an abuse of process Acts Interpretation Act 1954, s 39 Residential Tenancies and Rooming and Accommodation Act 2008, ss 355, 356 |
APPEARANCES and REPRESENTATION (if any):
This proceeding was heard on the papers, pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act).
REASONS FOR DECISION
The background to this matter is that Mr Pertzel has rented a caravan site in the Glasshouse Mountains Holiday Village for many years. Since 2003 he has, however, spent most of his time interstate. Nevertheless, he claims, he continued to rent the site at the Village and to stay in his caravan there from time to time and he had not abandoned it.
A Magistrate, sitting as a QCAT Member in the Tribunal’s Minor Civil Disputes jurisdiction determined that site 58, at the Village, had not been abandoned by Mr Pertzel. Mr Oatley, who manages the Village, seeks leave to appeal that decision.
When Mr Pertzel is not at the Village, he agrees, he resides on a day-to-day basis at an address in Jindera, New South Wales. Mr Oatley, the lessee manager of the Village, and Clive Garnsey, the assistant manager, had the Jindera address and telephone contact details for Mr Pertzel at all relevant times.
On 1 June 2010 Mr Oatley issued a Form 15 abandonment termination notice to ‘Ian Peltzel’ for ‘site 41,[1] 778 Steve Irwin Way, Glasshouse Mountains’. Mr Oatley affixed the original notice to the door of the caravan owned by Mr Pertzel on 1 June 2010. As Mr Pertzel was at Jindera, he was not aware of this. Mr Oatley tendered the original notice in an envelope, which was still unopened, at the hearing.[2]
[1]There was evidence before the Magistrate that the site was unchanged, but the numbering had been altered.
[2] Transcript p 4.
Mr Oatley also posted a letter by registered post to Mr Pertzel at the Jindera address on 1 June 2010. The letter states that a ‘Form 15 has been issued and will take effect 10/6/10, furthermore we have applied to the RTA to commence proceedings for the recovery of outstanding rent. (audited statement attached)’. The correspondence advised Mr Pertzel that if he received ‘this communication’ and settled his outstanding rent prior to 10 June 2010, no further action would occur.
Mr Oatley claims that a copy of the Form 15 was attached to the correspondence.[3] Mr Pertzel says that a copy of the Form 15 was not enclosed with it when he finally received the letter on 22 June 2010.[4]
[3] Transcript p 5.
[4] Transcript p 7.
Mr Pertzel says that on 19 June 2010 Mr Garnsey telephoned him inquiring about his intentions regarding the correspondence. Mr Pertzel explained that he had not received it. On Monday 21 June 2010, he received telephone advice from another resident in the Village that management representatives had broken into his van, and were removing property from it.
Mr Pertzel filed an application disputing the abandonment termination notice under the Residential Tenancies and Rooming and Accommodation Act 2008 (the RTRA). That was the application which the Magistrate decided in his favour.
The matter has, regrettably, generated its own procedural complications. Mr Oatley filed an application seeking leave to appeal the Magistrate’s decision. Mr Pertzel responded with a QCAT form called a response and counter-claim. This prompted a cross-application from Mr Oatley seeking that Mr Pertzel’s response and counter-claim be struck out under s 47 of the QCAT Act, with costs.
Legislative Framework for Striking Out Proceedings; and, for Applications for Leave to Appeal and Appeals
Before these matters are directly addressed it is appropriate to mention some aspects of the QCAT Act concerning striking out a party’s documents; the appeal process; and, the circumstances in which new evidence will be admitted during an appeal.
Section 47 of the QCAT Act empowers the Tribunal to strike out a proceeding or part of it. Relevantly, s 47 applies if the Tribunal considers a proceeding or part of a proceeding to be frivolous, vexatious or misconceived; lacking in substance; or, otherwise, an abuse of process.[5]
[5] QCAT Act s 47(1).
Leave is required to appeal the decision of the Magistrate under s 142(3)(a)(i) of the QCAT Act, because the original decision involves a Minor Civil Dispute. Leave to appeal will ordinarily be granted when a question of general importance upon which further argument and a decision of the Appeal Tribunal is to public advantage;[6] there is a reasonably arguable case that the primary decision-maker made an error[7] and there are reasonable prospects that the applicant would be granted orders in its favour;[8] or to correct a substantial injustice to the applicant caused by error.[9]
[6]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578 and 580.
[7] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[8] Cachia v Grech [2009] NSWCA 232, [13].
[9] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
Under s 147(2) of the QCAT Act an appeal on a question of mixed law and fact must be decided by way of rehearing. The Appeal Tribunal may make its decision with or without the hearing of additional evidence, as it sees fit. The appeal jurisdiction is not generally the proper forum to receive evidence on disputed facts.[10] Generally, for additional evidence to be admitted, it must be shown that the additional evidence sought to be relied upon in the appeal was not available, and could not have been obtained with reasonable diligence for use at the hearing; that it is highly probable that if admitted there would be a different result; and that it is credible.[11]
[10]See discussion in Georgalis v Andonaras (1993) 113 FLR 196; Doherty v Liverpool District Hospital (1991) 22 NSWLR 284.
[11] Cicic v Snowy Mountains Hydro-Electric Authority [1964-65] NSWR 178.
A finding of fact will generally not be disturbed on appeal, if the evidence before the Tribunal supports the inferences drawn and facts found.[12]
The Magistrate’s Decision
[12] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 355 (Mason CJ).
The learned Magistrate gave brief oral reasons, referring to ss 355 and 356 of the RTRA. In essence, he considered that the RTRA required that an abandonment termination notice must be given to the tenant by the lessor serving it at the tenant’s residence or place of business. He also considered that, by virtue of s 39 of the Acts Interpretation Act 1954, service under the RTRA must be at the last known place of residence. In this case, he considered that Mr Pertzel’s residence was the caravan site, but that it was obvious Mr Oatley had another address for him in Jindera.
It is implicit in his decision that the learned Magistrate accepted Mr Pertzel’s evidence that he received only the letter of 1 June and the rental ledger, but not the Form 15 notice from Mr Oatley. That finding was apparently based upon acceptance of Mr Pertzel’s oral evidence, something which it was open to the Magistrate to do.
In any event, he was satisfied that Mr Oatley had not complied with the requirement to give a proper notice to Mr Pertzel terminating the agreement as provided for in s 355 of the RTRA. Therefore, he considered that the notice could not stand, and he found that the tenant had not abandoned the premises. He observed that the notice referred to site 41, but accepted that Mr Pertzel rented site 58. It is implicit that he found that the notice addressed to ‘Ian Peltzel’ in respect of site 41 was placed on the door of Mr Pertzel’s caravan on 1 June 2010.
Discussion and Decision
The Application to Strike Out the Response and Counter-Claim
Neither the QCAT Act nor the Queensland Civil and Administrative Tribunal Rules 2009 (the QCAT Rules) provide for a response to be filed to an application for leave to appeal or appeal, or anticipate a document of that kind being filed by a respondent. The purpose of an appeal is to consider whether an error was made by the Tribunal when it determined a proceeding. A counter-claim in respect of issues which were not determined by the Tribunal cannot be made in response to an application for leave to appeal or appeal.
In his response and counter-claim, Mr Pertzel seeks the dismissal of the ‘vexatious’ appeal. The orders otherwise sought concern matters which are by way of counter-claim. The counter-claim is misconceived. In the circumstances, the Tribunal may strike it out under s 47, and should do so. There will be an order striking out paragraphs 2, 3 and 4.
The use of the word ‘vexatious’ in the first order sought is probably inflammatory, but is of no significance in the proceeding. Although the QCAT Act and QCAT Rules do not provide for a response document to be filed in relation to an application for leave to appeal or appeal, Mr Pertzel has used the document in part to express his submissions in response to the application for leave to appeal.
Mr Pertzel is representing himself in the proceedings and cannot be expected to be familiar with Tribunal procedures and requirements. In the circumstances, it is not necessary to make orders regarding the response contained in order 1, nor the use of the word ‘vexatious.’
Mr Oatley seeks costs of and incidental to the application to strike out the response and counter-claim, which has been partially successful. The QCAT Act provides generally for parties to bear their own costs.[13] Mr Oatley has neither sought nor been granted leave for representation by the lawyers who prepared the application for striking out under s 47, and submissions. In these circumstances, it would not be appropriate to make an order for costs.
The Application for Leave to Appeal
[13] QCAT Act, ss 100, 102.
(1) The grounds of appeal specified in the application for leave to appeal
Mr Oatley set out grounds of appeal in his application specifying an allegedly wrongful failure, on the part of the learned Magistrate, to accept evidence. His submissions do not, however, advance arguments in support of the grounds.
The Tribunal is obliged to observe the rules of natural justice in conducting a proceeding.[14] Refusal to receive relevant evidence may be an error of law if a party has been thereby denied procedural fairness. That said, the Tribunal is not bound by the rules of evidence[15] and may inform itself in any way it considers appropriate.[16]
[14] QCAT Act, s 28(3)(a).
[15] QCAT Act, s 28(3)(b).
[16] QCAT Act, s 28(3)(c).
A statutory declaration of Mr Garnsey is one of the documents identified in the grounds of appeal. Mr Garnsey gave, however, oral evidence at the hearing. Mr Oatley was present, and had the opportunity to ask questions of him. The statutory declaration of Mr Garnsey contains additional information which was not elicited; but, Mr Oatley could have asked questions to bring this additional information out. Since Mr Garnsey was allowed to give evidence orally, and Mr Oatley had the opportunity to ask questions of him, it cannot be said that a refusal to receive the statutory declaration resulted in any denial of natural justice.
Mr Oatley also complains that Australia Post correspondence, a Delivery Printout and associated receipt, were not received into evidence by the learned Magistrate. It is apparent from the transcript that the Magistrate was aware of the documents.[17] Mr Oatley described the contents to him, and it is apparent from the transcript that he quoted from it.[18]
[17] Transcript pp 8-9.
[18] Transcript p 9.
Evidence about the information from Australia Post was, therefore, received. The learned Magistrate was entitled to inform himself in such reasonable a manner as he considered appropriate. Again, it cannot be said that Mr Oatley was denied natural justice because the Australia Post documents themselves were not received by the Magistrate.
Other material which Mr Oatley complains was wrongly refused by the Magistrate includes a copy of the correspondence of 1 June 2010 from him to Mr Pertzel, the Form 15 notice, and the rent statement. These documents were before the Magistrate and form part of the Exhibits.[19] A map of the Village which Mr Oatley complains was not received by the Magistrate was not offered to him, but in any event does not assist in relation to the issues.
[19] Exhibits 2 and 3.
The photographs which Mr Oatley now says should have been accepted into evidence are not identified. It does not follow that their absence affected the outcome of the matter, or involved any want of procedural fairness.
Mr Oatley was not, then, denied natural justice as a result of the learned Magistrate failing to accept copies of documents from him. Further, this analysis shows that the grounds of appeal do not reveal a basis upon which leave to appeal should be granted.
(2) The Other Grounds of Appeal Identified in Submissions
Despite the granting of an extension of time by the Appeal Tribunal to allow Mr Oatley to provide his submissions after the transcript of the reasons for decision became available, leave was not subsequently sought to amend the grounds of appeal. In any event, the submissions of Mr Oatley do raise other grounds of appeal. While these do not form part of the application for leave to appeal, in the interests of justice I will consider them.
In particular, it is submitted for Mr Oatley that the Magistrate erred by holding that the RTRA requires service at the tenant’s last known place of residence or business, and that s 39 of the Acts Interpretation Act 1954 required that it be served at the last known address; that the notice should have been sent to the Jindera address; that Mr Oatley did not comply with s 355 of the RTRA; that the requirement that notice be given was mandatory; and, that the premises had not been abandoned.
(2)(i) Submissions about service under the RTRA, and section 39 of the Acts Interpretation Act 1954
First, Mr Oatley contends that the learned Magistrate did not identify how he concluded that the RTRA requires notice to be given at the tenant’s last known residence or place of business. That is not what the Magistrate determined: he found that the Act required that the notice be given at the tenant’s residence, or place of business. He went on to find that, by virtue of s 39 of the Acts Interpretation Act 1954, it must be given at the last known residential address. It is clear that the Magistrate meant that this was so, in circumstances when a party contends that service has been affected at the residential address.
Mr Oatley also argued that s 39 is not determinative of the manner of service, relying on what his submissions call ‘regulation 50 of schedule 2’ of the Regulation as providing an alternative. The Regulation contains, in Schedule 2 part 2, the standard terms for a residential tenancy agreement for a long tenancy for a moveable dwelling.[20] A moveable dwelling includes a caravan.[21]
[20] Residential Tenancies and Rooming and Accommodation Regulation 2009, s 7.
[21] RTRA, schedule 2.
Clause 50 in Schedule 2 of the Regulation is a standard term regarding notices to be given under the residential tenancy agreement. It provides for a notice to be given to a party in various ways, including, if an address for service is stated in the agreement, by sending it by prepaid post to the address.[22] If no address for service is stated in the agreement, the tenant’s address for service is taken to be the address of the premises.[23] A party may change their address for service only by giving notice to the other party of a new address for service[24] and on the giving of a new address for service, the address stated in the notice is taken to be the address for service.[25]
[22] Clause 50(3)(b).
[23] Clause 50(5).
[24] Clause 50(6).
[25] Clause 50(7).
A copy of the tenancy agreement was not provided to the Magistrate, so it is not known whether an address for service was specified for Mr Pertzel or, if so, what address it was. However, it is apparent from the evidence that Mr Oatley was aware that Mr Pertzel was away from his rental site. It is also apparent from the evidence that Mr Pertzel had provided contact details, including an address at Jindera. He had, in effect, notified a change of address for service. Therefore, if the notice was given by post at the residential address in compliance with clause 50, it was required to be effected at the Jindera address.
Section 39 of the Acts Interpretation Act 1954 provides for service under an Act to be effected on an individual, among other ways, by posting it to the last known place of residence or business. In Mr Pertzel’s case, the last known residential address is the Jindera address. According to this analysis, s 39 and schedule 2 part 2 of the Regulation do not produce different results.
The construction suggested by the applicant, which would allow for alternative places of service at the whim of the person serving the documents, would create an unsatisfactory outcome and is unlikely to have been intended by the Parliament. In any event, the requirements of s 39 prevail over those of the subordinate legislation provided for in the Regulation. Hence the Magistrate correctly found that service was required at the last known address, and that the notice should have been served at the Jindera address.
It follows that s 355 has not been complied with, because the notice has not been given as required.
The learned Magistrate’s reasons for his decision did not fully set out his reasoning on this aspect of the case. Some lack of detail in reasons for decision given in a busy Minor Civil Disputes list should not be criticised when, as here, the basis for the decision is clear. In this proceeding, I consider that the reasons are sufficiently clear, and sit comfortably with this analysis of the relevant legislative provisions and regulations. Accordingly, the submissions about service do not reveal a basis for granting leave to appeal.
2 (ii) Submissions about whether a notice was mandatory under s 355 of the RTRA
Mr Oatley’s submissions to the effect that the requirement for an abandonment termination notice was not mandatory rely upon the use of the word ‘may’ in RTRA s 355(1). In statutory construction, words in legislation must be interpreted in context.[26] In their context, the provisions about ending a tenancy on the basis of abandonment are contained in Chapter 1 Part 5 Division 8 of the RTRA. If the lessor believes on reasonable grounds that premises have been abandoned, an abandonment termination notice may be given pursuant to s 355. The lessor is not, however, compelled to proceed in this manner; there may be other legitimate ways to end the tenancy, which a lessor may choose to take.
[26] K & S Lake City Freighters Pty Ltd v Gordon & Gotch (1985) 60 ALR 509.
That said, if the lessor proceeds on the basis of s 355, then notice must be given. Accordingly, no error on the part of the learned Magistrate is revealed, and this argument does not provide a basis for leave to appeal to be granted.
2(iii) Submissions about the finding that the premises had been abandoned
Finally, Mr Oatley submits that the Magistrate erred in determining that the premises had not been abandoned. The learned Magistrate in his reasons effectively found that the Form 15 notice had not been served; that accordingly s 355 of the RTRA had not been complied with; and, therefore, the notice was not effective. Without considering when premises may be considered abandoned in law, and making findings of fact about abandonment or otherwise in this case, he then found that Mr Pertzel had not abandoned the premises.
It is to be observed that the learned Magistrate did not need to proceed to consider whether the premises had in fact been abandoned, given his finding that the abandonment termination notice had not been given as required.
Under s 356 of the RTRA if a tenant disputes an abandonment notice, the tenant may apply to the Tribunal for an order[27] within 28 days after the notice is given.[28] The Tribunal has broad powers to make orders, if the application is made within 7 days after the notice is given, to set aside the notice[29] or otherwise, to make orders including terminating the agreement; for compensation; or ‘any other order it considers appropriate’.[30]
[27] RTRA, s 356(1).
[28] RTRA, s 356(2).
[29] RTRA, s 356(3)(a).
[30] RTRA, s 356(3)(b).
For reasons which are not apparent the learned Magistrate made a finding that the premises had not been abandoned, without making any findings of fact to support that conclusion. The question whether there is any evidence of a particular fact is, itself, a question of law.[31] The absence of any factual findings creating a foundation for this important (if superfluous) conclusion means that leave to appeal should be granted.
The Appeal
[31] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355 per Mason CJ.
The appeal is, for the reasons set out above, one involving a question of mixed law and fact: was there any evidence to support the finding against abandonment? And what, if anything, was that evidence? Under s 147 of the QCAT Act, this Appeal Tribunal must decide the appeal by way of rehearing, with or without additional evidence. The Appeal Tribunal may confirm or amend the decision, or substitute its own.
For the purposes of rehearing, no basis has been shown warranting the admission of the additional evidence sought to be advanced by Mr Oatley. None has been shown to have been unavailable at the hearing, or to have been likely to produce a different result.
It is accepted, as the learned Magistrate implicitly found, that a Form 15 notice addressed to ‘Ian Peltzel’ in respect of site 41 at the Village was placed on the door of Mr Pertzel’s caravan in the Village on 1 June 2010; and, that Mr Oatley sent the letter of 1 June 2010 enclosing the rental ledger statement to Mr Pertzel at his Jindera address.
I do not accept, as the Magistrate also impliedly refused to accept, that a copy of the abandonment termination notice was enclosed with the letter. There was evidence to support that finding: the letter itself does not refer to enclosure of the notice, but it specifies that the rental ledger is enclosed. Further, on the basis of the evidence of Mr Oatley and Mr Pertzel, it is also accepted that Mr Pertzel rented site 58 at the Village.
For the reasons discussed earlier, the learned Magistrate was correct in finding that the abandonment termination notice was required to be given to Mr Pertzel at his Jindera address; and, that the abandonment termination notice dated 1 June 2010 was not addressed to him, and was in respect of premises not rented by him.
Accordingly, a notice was not given to Mr Pertzel at his address for service in respect of the premises rented by him. It is apparent that, at the time of the hearing, the notice still had not been given as there was not a valid notice containing the correct details of Mr Pertzel’s name and rental premises. Under s 356 of the Act, the correct order and the one the learned Magistrate should have made is to set aside the abandonment termination notice dated 1 June 2010.
In conclusion, then, while leave to appeal should be granted there is no ground for setting aside the original decision on appeal. The only order which can properly be made is that set out in the preceding paragraph.
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