Orley v Capper
[2010] QCATA 56
•1 October 2010
| CITATION: | Orley v Capper [2010] QCATA 56 |
| PARTIES: | Mr Shane Clifford ORLEY (Applicant) |
| v | |
| Mr Garry CAPPER (Respondent) |
APPLICATION NUMBER: APL107-10
| MATTER TYPE: |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Judge Fleur Kingham, Deputy President |
DELIVERED ON: 1 October 2010
DELIVERED AT: Brisbane
ORDERS MADE: Application for leave to appeal dismissed
| CATCHWORDS : | RESIDENTIAL TENANCIES – ARREARS IN RENT – FINDINGS OF FACT – where applicant did attend the hearing – where the respondent presented evidence in support of claim for arrears in rent – whether findings of fact reasonably open on the evidence before the Tribunal PROCEDURAL FAIRNESS – ABSENCE AT HEARING – where the applicant did not attend the hearing – where the applicant alleges that he did not receive sufficient notice of the hearing and was denied the opportunity to properly respond to the claims – where minor procedural irregularity in service of notice – whether open for Member to determine matter in absence of a party – whether proceeding tainted by procedural unfairness Acts Interpretation Act 1954, ss 38, 39A Queensland Civil and Administrative Tribunal Act 2009, ss 28(2) and (3)(a), 57(1)(b), 93, 142(3)(a)(i) Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, applied Dixon v Commonwealth (1981) 3 ALD 289, cited |
REASONS FOR DECISION
Mr Garry Capper leased a residence at Lorimor Street in Springwood to Mr Shane Orley and Ms Talita Lemont for fixed term tenancy commencing on 4 February 2010 and ending on 4 May 2010.
Mr Capper commenced proceedings to terminate the tenancy for repeated breaches of the tenancy agreement in relation to arrears in rent. The matter was heard by a QCAT Member on 1 June 2010, in the absence of Mr Orley and Ms Lemont. Mr Capper appeared for himself. The member ordered the tenancy be terminated as of 3 June on the ground of failure to leave; a warrant for possession be issued; for Mr Orley and Ms Lemont to pay to Mr Capper $2000 for arrears in rent; and for the Residential Tenancy Authority to pay Mr Capper the $1000 bond in part satisfaction of the arrears in rent.
Mr Orley sought leave to appeal that decision. Leave is necessary for a decision in a minor civil dispute: Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), s 142(3)(a)(i). Mr Orley did not file submissions in support of his application as directed, either in accordance with the original or extended deadline notified in the directions of 7 September 2010. I have determined the matter in accordance with those directions.
Mr Orley’s grounds for leave to appeal are briefly outlined in his application for leave to appeal. He claims he had only 48 hours notice of the hearing and did not have a fair opportunity to respond to the claims for arrears in rent because he did not attend the hearing. He also alleged that Mr Capper misled the learned Member by not admitting receipt of $4000 for rent that put Mr Orley and Ms Lemont two weeks in advance for rent at the time the application was heard.
QCAT must afford parties procedural fairness[1] and a breach of procedural fairness may occur if an absent party has not been afforded a reasonable opportunity to be heard and respond to adverse findings made against them.[2]
[1]QCAT Act, s 28(3)(a)
[2] Dixon v Commonwealth (1981) 3 ALD 289
QCAT may hear and decide a matter in the absence of a person if it is satisfied that they have been given proper notice of the hearing pursuant to the Act, or the person cannot be found after reasonable enquiries have been made: QCAT Act, ss 57(1)(b), 93.
The file shows that a Notice of Hearing was issued and sent by ordinary post to Mr Orley and Ms Lemont on 24 May 2010. The Registrar certified that in the ordinary course of post it would be delivered on 26 May 2010. That would have given Mr Orley six days notice.[3] This is more notice than he claims to have received.
[3]Acts Interpretation Act 1954 (Qld), ss 38, 39A
It was always open to Mr Orley to seek an adjournment of the hearing. There is no evidence to suggest that he made any enquiries into seeking a new hearing date, nor I think, any evidence to support his assertion that he only received 48 hours notice. It is clear from the correspondence from QCAT and the notices issued by Mr Capper that Mr Orley would have understood the nature of the proceeding. He also had notice that the matter could proceed in his absence.
QCAT is bound to act fairly in each proceeding and determine every matter according to the substantial merits of the case.[4] A review of the transcript of the proceedings shows that the learned Member considered all the evidence before him, including a copy of Mr Capper’s tenant ledger for the property; a copy of Mr Capper’s bank statement showing a series of deposits for rental payments by Mr Orley and Ms Lemont; and several Form 11 and 12 Notices to Remedy Breach and Leave issued to Mr Orley and Ms Lemont. The final Notice to Remedy Breach dated 8 May 2010 indicated that the total amount of rent owing was $2380.25 inclusive of rent outstanding from 30 April and 7 May.
[4]QCAT Act, s 28(2)
Taking into account their payment of $1380 prior to the hearing, the learned Member determined that Mr Orley and Ms Lemont were still in arrears of $1000 until 3 June; and that an additional $1000 for two weeks rent (until the expiry of warrant for possession on 17 June) would still need to be paid – a total of $2000.
An appellate tribunal will not disturb the findings of fact of the primary decision-maker unless persuaded they lacked an evidentiary basis, or were affected by some other error of law.[5] In the absence of Mr Orley to substantiate his allegation that Mr Capper misled the Member, the findings of fact were reasonably open on the evidence before the Tribunal.
[5]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355
Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and reasonable prospect of the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?
Mr Orley has not produced evidence in these proceedings or made submissions to indicate that, were he given the opportunity to be heard, a different decision would be made. As there are no errors in the learned Member’s findings of fact, leave to appeal is refused.
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