Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe
[2013] QCATA 212
•26 July 2013
| CITATION: | Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe [2013] QCATA 212 |
| PARTIES: | Julie Rayner Sean Rayner (Applicants/Appellants) |
| v | |
| Trabme Pty Ltd t/as Elders Redcliffe (Respondent) |
| APPLICATION NUMBER: | APL075-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 26 July 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Application for leave to appeal dismissed. 2. Application to investigate contempt of tribunal dismissed. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where applicants entered into tenancy agreement for premises managed by the respondent – where applicants were given notice to leave – where applicants filed an application for a rent decrease and a request for compensation – where the Tribunal dismissed the application and request – where the applicants seek leave to appeal that decision – where the applicants also seek to appeal decisions from former proceedings – where applicants contend there was a breach of natural justice – where the applicants submit the Tribunal relied on false and misleading information given by the principal of respondent during former proceedings – whether breach of natural justice – whether leave to appeal should be granted NATURAL JUSTICE – PRACTICE AND PROCEDURE – where Tribunal must take all reasonable steps to ensure each party to a proceeding understands practices and procedures of the Tribunal – where applicants lodged the incorrect type of application – where application was dismissed because the applicants did not participate in mandatory conciliation process identified in correct application – where applicants contend the Tribunal should have identified the error before the hearing – whether duty to ensure parties understand practices and procedures of Tribunal includes identifying errors in application PRACTICE AND PROCEDURE – CONTEMPT – where application for Tribunal to investigate whether principal of respondent was in contempt of tribunal by giving false and misleading information – where Tribunal has power to punish for contempt of tribunal – where a person may be in contempt of tribunal if the person commits an offence against Part 1, Chapter 5 of the Queensland Civil and Administrative Tribunal Act 2009 – where giving false or misleading information in a material particular is an offence against that part – where all proceedings for contempt must be proved beyond reasonable doubt – whether beyond reasonable doubt principal was in contempt of tribunal – whether information alleged to be false or misleading given in a material particular Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 4(c), s 28, s 29(1), s 137, s 138, s 139(5), s 216, 218(1)(g), s 219, Schedule 3 Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 99 Big4 Brisbane Northside Caravan Village v Schliebs [2012] QCAT 277, cited |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Julie and Sean Rayner entered into a general tenancy agreement with Giannina Masala for premises at 42A Thomas Street, Clontarf. The tenancy agreement was for a fixed term of 6 months between 29 April and 28 October 2011. At that time Ray White Clontarf managed the premises for Ms Masala.
In October 2011 the Rayners were notified that the premises would from that time be managed by Elders Redcliffe.
Following the change in management an inspection of the premises was carried out by Miriama Clince and Trent Ryan of Elders. At the inspection potential repairs and maintenance were discussed and, it is alleged, the Rayners were told that ‘appropriate action would be taken’ subject to the approval of the owner, Ms Masala.[1] Shortly after the inspection Ms Rayner contacted Elders:
… to discuss some ideas [she] had to improve the property to bring it in line with current market rental prices in consideration of the amenities of the property and to discuss an extended lease and the rent paid on the property.[2]
[1]Julie Rayner, ‘Affidavit’, Submission in Rayner & Anor v Elders Redcliffe, MCDT2327/12, 14 October 2012, 3.
[2]Ibid; See Email from Julie Rayner to Miriama Clince, 18 October 2011, 1-2.
In her submissions Ms Rayner stated:
[V]arious tradesmen visited the property to quote on the work required, but no repairs were commenced and the overall condition of the property continued to deteriorate.
…
Although the Elders staff indicated that they were in contact with the owner and that she was considering the repairs and obtaining quotes, no further work was undertaken nor was any schedule for commencement of the repairs discussed or supplied.[3]
[3]Julie Rayner, above n 1, 3.
The Rayners contend that, in January 2012, they received an offer to extend the tenancy agreement from 28 October 2012 to 26 April 2012.[4] The Rayners did not accept the offer and, it appears, the tenancy agreement continued on the basis that the premises were held over under a periodic agreement.[5]
[4]Fax from Julie Rayne to RTA Dispute Resolution, 10 February 2012, 2.
[5]Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 70(2)(b) (‘RTRA Act’).
A notice to leave dated 10 February 2012 was given to the Rayners requiring vacant possession of the premises on or before 5:00 pm on 9 April 2012.[6]
[6]Elders issued two earlier notices to leave, dated 9 February 2012, which contained typographical errors and were subsequently replaced with the notice dated 10 February.
Chapter 5, Part 1, Division 2, Subdivision 2 of the RTRA Act provides for the circumstances in which a lessor may give a notice to leave: unremedied breach;[7] non-compliance with a Tribunal order;[8] frustration of the tenancy agreement (e.g. non-liveability of the premises following a cyclone);[9] if the premises are being sold;[10] or, without grounds.[11] The term ‘grounds’ is not defined in the RTRA Act but, in context of the subdivision of the RTRA where it is found, appears to encompass the matters raised in those provisions.
[7]RTRA Act s 281.
[8]Ibid s 282.
[9]Ibid s 284.
[10]Ibid s 286.
[11]Ibid s 291.
As to its form, a notice to leave must state the grounds on which the notice is given or that the notice is given without grounds and, unless the latter – give particulars of the ground on which the notice is given.[12]
[12]Ibid s 326(1)(e)-(f).
The copy of the notice provided to the Tribunal shows that it was given ‘with grounds’:
The landlord requires vacant possession of the property so that repairs (as reported by you) and renovations can be carried out without interfering with the tenants [sic] peaceful existence.
The purported ‘ground’ in the notice – that the owner requires vacant possession – does not comfortably fall under any of the grounds set out in the RTRA Act.[13] It follows that it is right to treat the notice to leave as ‘without grounds’ and, therefore, one upon which s 291 of the RTRA Act operates.
[13]See paragraph [6] of the reasons for decision, above.
Section 291 of the RTRA Act provides that a lessor must not give a notice to leave if the tenant has applied (or is proposing to apply) to the Tribunal for an order;[14] complained to a government entity about something the lessor has done, or not done;[15] taken some other action to enforce the tenant’s right;[16] or, if the giving of the notice by the lessor would constitute ‘taking retaliatory action against the tenant’.[17]
[14]RTRA Act s 291(2)(a).
[15]Ibid s 291(2)(b)(i).
[16]Ibid s 291(2)(b)(ii).
[17]Ibid s 291(3).
Upon receipt of the notice to leave, the Rayners gave a notice to remedy breach to Elders.[18] In that notice, the Rayners stated the tenancy agreement was breached when requests for ‘emergency repairs’ were not acted upon by Elders.[19]
[18]Email from Julie Rayner to Miriama Clince, 10 February 2012.
[19]See s 214 of the RTRA Act for the meaning of ‘emergency repairs’.
On 16 February 2012 the Rayners filed an urgent application (MCDT365/12) seeking orders that the owner’s notice to leave be set aside and that emergency repairs to the property be carried out. A second urgent application (MCDT414/12) was filed on 27 February claiming a rent decrease, in the total sum of $1,560.00, under s 94 of the RTRA Act.
The applications were heard together on 26 March 2012 by a QCAT Adjudicator. Neither Ms Masala nor any representative of Elders attended the hearing.
The learned Adjudicator dismissed the Rayners’ first application (MCDT365/12), and with respect to the second application (MCDT414/12, seeking a rent decrease), ordered:
In accordance with s 94 of the Residential Tenancies and Rooming Accommodation Act 2008, the rent payable under the tenancy agreement is $285.00 per week from 24 October 2011.[20]
[20]Audio of Proceedings, Rayner & Anor v Ryan & Anor (Queensland Civil and Administrative Tribunal, MCD414/12, Adjudicator Jarro, 26 March 2012) 4:20.
On 20 April 2012, Mr Ryan of Elders applied to reopen the proceedings in respect of both applications (i.e. MCDT365/12 and MCDT414/12). He had, under s 138 of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’), the right to apply if a reopening ground existed. Section 137 defines ‘reopening ground’ to include circumstances where a party had a reasonable excuse for not appearing at the hearing, or would suffer a substantial injustice if the proceeding was not reopened because significant new evidence had arisen, and that evidence was not reasonably available when the matter was heard and decided.
According to the application and submissions filed by Mr Ryan (for Elders) in support of it[21] neither Ms Masala, nor any representative of Elders attended the hearing on 26 March 2012 because the notice of hearing had not been received.
[21]Trent Ryan, ‘Request for Re-opening of lodgement’, Submission in Rayner & Anor v Ryan & Anor, MCDT414/12, 21 May 2012.
The parties were advised on 11 May 2012 that the application for reopening would be determined on the papers. On 30 May, the Tribunal ordered that both applications be reopened, and listed the proceeding itself for a hearing at a date to be fixed. It appears that decision was sent out by mail to the parties on 5 June 2012 but, for reasons which are not apparent, not received by either party.
At the ‘rehearing’ which eventually occurred 2 July 2012, the presiding Member relevantly ordered:
a) the application dated 16 February 2012 (in which the Rayners sought to set aside the notice to leave) was dismissed, by consent; and
b) the application dated 27 February 2012 was reopened[22] and would be adjourned in order for the parties to file and exchange any further material they sought to rely upon.
[22]A duplicate order of that made on the papers in May 2012.
The matter was then listed for 16 October 2012. At that hearing the presiding Member ordered that the Rayners’ application for a rent decrease be dismissed ‘for the reason of it being non-compliant with the obligations under s 416 of the [RTRA Act]’[23]. Section 416 provides that, in ‘non-urgent’ applications about tenancy matters the applicant must first seek to engage a dispute resolution process involving the Residential Tenancy Authority. It appears the Rayners’ application was wrongly marked, by them, as an ‘urgent application’ and failed to satisfy that obligation when, in fact, it was a non-urgent application.[24]
[23]Audio of Proceedings, Rayner & Anor v Ryan & Anor (Queensland Civil and Administrative Tribunal, MCD414/12, Member Favell, 16 October 2012) 1:05:46.
[24]See Big4 Brisbane Northside Caravan Village v Schliebs [2012] QCAT 277.
The RTRA Act distinguishes between applications that are urgent, and those that are non-urgent. Relevantly, here, urgent applications are defined to include those made which seek orders about carrying out emergency repairs;[25] and orders for setting aside a notice to leave without grounds.[26] Unless an application qualifies as urgent, the applicant can only apply to the Tribunal if it has made a dispute resolution request in the manner set out in s 402 of the RTRA Act. Section 416(1) of the RTRA Act provides that a lessor or tenant:
… may apply under this Act to a Tribunal about an issue only if the applicant has first made a dispute resolution request about the issue and–
(a)the conciliation process has ended without a conciliated resolution having been reached… [or]
(b)a conciliated resolution is reached but the applicant reasonably believes the other party has breached the conciliation agreement.
[25]RTRA Act s 415(5)(e).
[26]Ibid s 415 (5)(l).
While the Rayners did file a dispute resolution request with the Residential Tenancies Authority on 10 February 2012, it appears a conciliation process did not take place. In her submissions, Ms Rayner states she was advised by a representative of the RTA that she ‘did not require a Notice of Unresolved Dispute… and could go forward to lodge an Urgent Application… with QCAT’.[27] Unfortunately, the advice Ms Rayner contends she received was not correct. While the Rayners’ urgent application filed on 16 February 2012 dealt with claims that were unsuitable for the conciliation process, the non-urgent application filed on 27 February 2012 ought to have undergone the dispute resolution process.[28]
[27]Julie Rayner and Sean Rayner, ‘Attachment to Form 43 – Application for re-opening, correction, renewal or amendment’, Submission in Rayner & Anor v Masala & Anor, MCDT414/12, 30 October 2012, 1.
[28]See s 416 of the RTRA Act.
After their application was dismissed the Rayners filed an application to reopen the proceeding in the Tribunal, and a dispute resolution request with the RTA. It appears the conciliation process was unsuccessful, and on 19 October the RTA issued the parties with a notice of unresolved dispute.
The reopening application was determined on the papers by a Senior Member of the Tribunal. The learned Senior Member dismissed the application on 14 November 2012.
Following that refusal yet another application, filed by Elders, was heard by the Tribunal. In that proceeding Elders sought $145.00, the amount of bond held by the RTA at the time, for rent arrears; and, $21.00 for filing fees. In response, the Rayners filed a counter application seeking the amount still held by the RTA; $20.00 alleged to be held in credit on the tenancy ledger; and $200.00 ‘restitution’ because they were ‘forced to borrow from their aged parents’. At the hearing, it was ordered by consent that the RTA pay out the sum of $145.00 to Ms Masala.
On 20 November 2012, the Rayners brought yet further proceedings in the Minor Civil Disputes jurisdiction of the Tribunal. First, they filed a non-urgent application seeking a rent decrease, in the total sum of $1,560.00, in order:
(a)to bring the weekly rental paid for the property in line with market value of comparable properties displaying a similar overall condition and amenities, and
(b)compensation for failure and refusal to complete the required repairs and maintenance (section 221 (1)(a)(ii), (b) and (c) of the Act) thereby greatly inconveniencing the tenants and causing issues with safe access to and from the dwelling (section 214(k) and (l) of the Act).[29]
[29]Julie Rayner, ‘Affidavit of Julie Margaret Rayner in support of MCDT414/12 affirmed on 14th day of October 2012’ Submission in Rayner & Anor v Masala, MCDT2327/12, 14 October 2012, 4-5.
The Rayners also filed a request for compensation in which they sought $3,262.73 for costs they allege they incurred, including: removalist fees (those charged by a removalist company, as well as fees believed to be earned by Mr Rayner for additional moving, ‘calculated using current base award rates as sources from Fair Work Ombudsman – Pay Check Plus’[30]), parking costs, charges for using registered post, and ‘potential loss of income’.
[30]Julie Rayner and Sean Rayner, ‘Appendix 1 – MCDT – Request for Compensation’, Submission in Rayner & Anor v Masala, MCDT2327/12, 16 November 2012.
On 18 December 2012 these matters were heard and determined by a QCAT Adjudicator. After hearing evidence from both parties and taking a short adjournment to consider the matters, the learned Adjudicator found that none of the items in the request for compensation could be claimed and, in those circumstances, dismissed the request.[31] The learned Adjudicator also dismissed the application for a rent decrease after finding that s 94 of the RTRA Act did not apply, because the premises could not be categorised as ‘substantially unfit’.[32]
[31]Transcript of Proceedings, Rayner & Anor v Masala (Queensland Civil and Administrative Tribunal, MCDT2327/12, Adjudicator O’Hanlon, 18 December 2012) 24.
[32]Ibid 25.
Appeal
The Rayners seek leave to appeal that decision. Leave is necessary under s 142(3)(a)(i) of the QCAT Act.
The question whether or not leave to appeal should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?[33] Is there a reasonable prospect that the applicant will obtain substantive relief?[34] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[35] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[36]
[33]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[34]Cachia v Grech [2009] NSWCA 232 at [13].
[35]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[36]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
The Rayners are not represented and, unsurprisingly, their application and subsequent submissions do not address these niceties. QCAT is required to conduct proceedings in an informal way[37] and it is appropriate to consider the Rayners’ submissions to discover if they have a point warranting a grant of leave (and, if so, to proceed and consider their appeal).
[37]QCAT Act s 4(c).
The Rayners’ submissions in support of their application for leave to appeal may be summarised as:
a) The wrongful admission and subsequent reliance by the Adjudicator (and other Members of the Tribunal) of evidence which, in the Rayners’ submission, was false and misleading.[38]
b) An error on the part of the Adjudicator (and other Members of the Tribunal) arising out of the failure to consider relevant material, which, if properly considered, would have identified Mr Ryan’s evidence as false and misleading, and would have resulted in an ‘entirely different’ outcome of the proceedings.[39]
c) An allegation that they were denied natural justice by virtue of a breach of s 29 of the QCAT Act in that the Tribunal, the RTA, and the Tenant Advice and Advocacy Service did not properly advise them how to lodge their applications.[40]
d) A complaint that, after lodging their applications incorrectly, they were not advised by the Tribunal or the RTA of their error until the matter was raised by the Member at the hearing.[41]
e) A complaint that the Adjudicator’s ‘lack of familiarity with the materials and documents which form the case... had a negative impact on the outcome’.[42]
f) An error on the part of the Adjudicator in not finding that the amenity or standard of the premises were substantially decreased which is one circumstance that is, under s 94 of the RTRA Act, a ground for the Tribunal to make an order for a rent decrease.[43]
g) An allegation that the Adjudicator denied them a fair hearing by not giving them adequate time to give evidence.[44]
[38]Julie Rayner, ‘Affidavit’, Submissions in Rayner & Anor v Masala, MCDT2327/12, 14 February 2013, [16].
[39]Ibid [16], [21], [25].
[40]Ibid [18].
[41]Ibid [19].
[42]Ibid [23].
[43]Ibid [24].
[44]Ibid [26].
It is to be observed, at the outset, that many of the grounds are misconceived. The Rayners are seeking, in effect, to appeal each and every decision of the Tribunal, not just that which is the subject of this appeal. They had the opportunity to seek leave to appeal those earlier decisions, but chose not to do so. They cannot now, under the guise of an application for leave to appeal the Adjudicator’s final decision on their last application, revisit events which are now historical and which they never sought to overturn.
They argue that the decision made by the learned Adjudicator on 18 December 2012 is effectively tainted by the Tribunal’s acceptance of Mr Ryan’s earlier reopening ground – that Elders did not receive the notice of hearing – which, they allege, was untrue.
According to his application to reopen and submissions subsequently filed in support of it, Mr Ryan did not attend the hearing on 26 March 2012 because Elders ‘did not receive any notification of the matter being held.’[45] In his submissions, Mr Ryan expanded on this assertion:
Earlier this year our business relocated and the [Rayners] addressed the matter to our previous physical address, not through our noted postal address – which had not changed. We have no notation in our mail register for the original hearing letter being received and mail is not physically delivered to our business by the post office, it is by collection only.
[45]Trent Ryan, above n 21, 1.
The procedure for determining an application to reopen is set out in s 139 of the QCAT Act. The Tribunal may grant the application only if it considers that a reopening ground exists, and the matter could be effectively or conveniently dealt with by reopening.
Each party must be given an opportunity to make written submissions, and that occurred here. The reopening application was determined by a Member of the Tribunal on 30 May 2012, without a hearing. (While duplicate orders were made on 2 July 2012, insofar as they related to the application for a rent decrease, the matter was already reopened.)
Findings of fact will not usually be disturbed if they have rational albeit debateable support in the evidence.[46] It is appropriate (although strictly speaking, unnecessary) to observe that the learned Member’s finding that Elders did not receive the notice of hearing was reasonably open in the circumstances and, importantly, reflected a fair and equitable result.[47] Secondly, s 139(5) of the QCAT Act states that the Tribunal’s decision on an application to reopen is ‘final and can not be challenged, appealed against, reviewed, set aside, or called in question in another way’. It is therefore quite clear that the Adjudicator (and the other Members of the Tribunal who heard the matters that followed) did not have jurisdiction to debate, query, challenge (or for that matter, turn their mind to) the decision regarding the reopening application.
[46]Fox v Percy (2003) 214 CLR 118 at 125-126.
[47]The same finding was also made by the learned Member on 2 July 2012.
For these reasons it is unnecessary to consider grounds (a) and (b) of the Rayners’ grounds in support of their application for leave to appeal.[48]
[48]See paragraph [32] of the reasons for decision, above.
Grounds (c) and (d) relate to the Rayners’ failure to lodge their application in the correct form. They contend that the fault lay not with them, but with the Tribunal, the RTA and the Tenant Advice and Advocacy Service. They also assert that they ought to have been alerted to their error before the hearing.
The Tribunal is required by s 29(1) of the QCAT Act to take all reasonable steps to ensure that each party to a proceeding understands the Tribunal’s practices and procedures. It is also required by s 28 to act fairly and according to the substantial merits of the case, and observe the rules of natural justice. It cannot be said that the Tribunal did not, in the Rayners’ proceedings and the hearings in which they were involved, discharge those duties.
The recording of the proceedings makes it clear that the Adjudicators and Members who heard the matters took care to receive evidence from each party and, in particular, ensured that the Rayners understood the circumstances in which an application was ‘urgent’, compared with ‘non-urgent’. On 18 December 2012 the presiding Adjudicator gave short but careful reasons addressing why the application seeking a rent decrease was dismissed, and why the items in the request for compensation could not be claimed. Sufficient care and pains were also taken at all proceedings to understand what the Rayners were claiming, and the basis for their claims.
It is regrettable if, as the Rayners assert, they received some incorrect advice. That said sections 28 and 29 do not extend to imposing, upon QCAT, an obligation to shore up deficiencies in a party’s initiating application.
The difficulty with the urgent/non-urgent distinction in RTRA proceedings is easily avoided, without any professional advice or guidance. The first page of the QCAT ‘Application for minor civil dispute – residential tenancy dispute’ includes this instruction:
The word ‘URGENT’ does not mean the application will be treated as ‘urgent’ in the normal sense of the word, but simply that the application can come directly to the Queensland Civil and Administrative Tribunal rather than as a result of unsuccessful conciliation at the Residential Tenancies Authority. The application will be given priority and listed promptly but not ‘urgently’. If this application is for a non-urgent matter, you will need to first attempt conciliation at the Residential Tenancies Authority.
The form contains clear and concise information about the types of disputes that come within the meaning of an urgent application, compared with those which must be dealt with as non-urgent matters. The Rayners ticked the non-urgent application for ‘rent decrease – premises are partly unfit to live (s 94)’ on page 9. They also ticked the urgent ‘other’ application and wrote ‘Rent Decreases (s 94)’ – despite the fact that, as clearly appears on the top of a number of pages in the form: ‘tick one box only’.
The Minor Civil Disputes jurisdiction is a busy and demanding one with just over 17,000 applications each year. Parties must assume a responsibility to take care in preparing material upon which they seek to rely, and to lodge the correct application. The forms are not difficult to understand, and may even be fairly described as intuitive. In the face of those circumstances, the Tribunal’s failure to identify the Rayners’ incorrectly lodged application before the hearing is not a valid ground of appeal.
Similarly, the presiding Adjudicator’s alleged ‘lack of familiarity’ with the contents of the file does not constitute a sustainable ground of appeal. The onus was always upon the Rayners to present their case and produce relevant evidence that would, on the balance of probabilities, prove to the Adjudicator at the hearing that they were entitled to a rent decrease under s 94 of the RTRA Act and compensation for expenses and losses.
It is clear the Rayners were unfamiliar with s 94 and the circumstances in which the Tribunal may make an order for a rent decrease.[49] The evidence which they produced at the hearing was not persuasive and the learned Adjudicator’s decision was, with respect, unsurprising. Certainly, it sits comfortably against the proper interpretation of the RTRA Act and the evidence the Rayners presented.
[49]See Campbell v Donker [2013] QCATA 6.
The final ground is an allegation that the Adjudicator denied the Rayners a fair hearing by not giving them adequate time to give evidence at the hearing. I have read the transcript of the hearing on 18 December 2012 and this serious claim of procedural unfairness has no force, nor merit. As observed earlier, the learned Adjudicator took great care in receiving evidence from the Rayners and allowing them the proper opportunity to present their case, and arguments. It is also to be noted that, when asked by the learned Adjudicator at the end of the hearing whether either party had anything further to discuss, Ms Rayner replied: ‘I don’t believe that I have anything further to add.’[50]
[50]Transcript of Proceedings, Rayner & Anor v Masala (Queensland Civil and Administrative Tribunal, MCDT2327/12, Adjudicator O’Hanlon, 18 December 2012) 23.
For leave to appeal to be granted not only must there be an error in the primary decision, but the decision must work a substantial injustice to one of the parties.[51] For the reasons set out above, none of the grounds advanced by the Rayners suggest error, and the original decision of the learned Adjudicator was reasonably open on the evidence presented to him at the hearing. They chose to claim a rent decrease and compensation in circumstances where the facts did not establish an entitlement to that remedy.
[51]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
Leave to appeal must be refused.
Contempt
The Rayners have filed a ‘Contempt of Tribunal Application’ in which they seek an investigation into whether the information given to the Tribunal by Mr Ryan in support of Elders’ application to reopen was false or misleading. The complaint relates to the contention that Mr Ryan misled the Tribunal about the circumstances which formed the basis of his reopening ground. It is also alleged that email correspondence referred to in Mr Ryan’s submissions contained information that was false and misleading.
The procedure for dealing with contempt of tribunal is found in Chapter 5, Part 1 of the QCAT Act and, in lieu of those provisions, Chapter 20, Part 7 of the Uniform Civil Procedures Rules 1999 (‘UCPR’). Section 218(1)(g) of the QCAT Act provides that a person may be in contempt of the Tribunal if the person commits an offence against Chapter 5, Part 1 of the QCAT Act. It is an offence under that part for a person to give or state to an official anything the person knows is false or misleading in a material particular.[52]
[52]QCAT Act s 216; ‘official’ is define in Schedule 3 of the QCAT Act to include a member or an adjudicator.
Contempt proceedings provide for the enforcement of the processes and orders of the Tribunal and for the punishment of acts which impede the due administration of justice.[53]
[53]Hafele Aust Pty Ltd v Maggbury Pty Ltd [2000] QCA 397 at [36] per Muir J (as his Honour then was).
The Tribunal has all the protection, powers, jurisdiction and authority the Supreme Court has in relation to contempt, and may punish a contempt of the Tribunal.[54] That jurisdiction may be exercised by the Tribunal on its own initiative, or on the application of a party.[55] The Rayners have not applied for orders that Mr Ryan be punished for contempt; instead, they seek that the Tribunal investigate’ whether an offence has been out.
[54]QCAT Act s 219(1).
[55]QCAT Act s 219(4).
If it is alleged that a person is guilty of contempt of the Tribunal committed in the face of the Tribunal, or in a hearing of the Tribunal, QCAT may by oral order direct the person be brought before the Tribunal.[56]
[56]UCPR r 922; QCAT Act s 219(2); Queensland Civil and Administrative Tribunal Rules 2009 r 99.
The current circumstances do not warrant the exercise of that discretion.
In Witham v Holloway[57] the High Court held that all proceedings for contempt must be proved beyond reasonable doubt.[58] I am not persuaded, to the requisite degree, that the circumstances surrounding Mr Ryan’s reopening ground were false or misleading. Similarly, I am not persuaded the email correspondence which the Rayners contend contains false and misleading information were ‘material’ particulars to any of the applications or claims before the Tribunal.
[57](1995) 183 CLR 525.
[58]Ibid 534.
For these reasons, the Rayners’ application to ‘investigate’ contempt of tribunal must be dismissed.
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