Robino v Camilleri

[2019] QCATA 114

CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Robino v Camilleri [2019] QCATA 114

PARTIES:

RITA MARIA ROBINO
 (applicant)

v

LUKE DANIEL CAMILLERI

(respondent)

APPLICATION NO:

APL314-18

ORIGINATING APPLICATION NO:

MCDT868 of  2018 Brisbane

MATTER TYPE:

Appeals

DELIVERED ON:

 1 August 2019

HEARING DATES:

29 July 2019

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes,  Member

ORDERS:

1              The application for leave to appeal is granted.

2              The appeal is allowed.

3              The orders made by the tribunal herein on 5 September 2018 are set aside.

4         These proceedings are remitted for rehearing by a differently constituted tribunal at a date to be fixed by the Registry and duly notified to the parties.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where joinder of an additional or substituted respondent –where  no notice of proposed joinder to party joined and no opportunity for that party to  be heard on the joinder proposal or on the merits – where denial of due  process – where leave granted, appeal allowed, and matter remitted for rehearing

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, 142

Uniform Civil Procedure Rules 1999 (Qld) rr 70-74
Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 111.

Hagan v Bank of Melbourne Ltd [1994] 2 Qd R 507
Leda Holdings Pty Ltd v Caboolture Shire Council [2007] 1 Qd R 467
Tim Gordon Property Group Pty Ltd v Helensvale Property Development Pty Ltd [2015] QSC 19

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. From 3 January 2017 to 2 January 2018 the intending[1] appellant Luke Camilleri (`Luke’) was a tenant of the respondent Rita Maria Robino (`Rita’) in residential premises at Bridgeman Downs, Brisbane (`the premises’).

   [1] Leave is a prerequisite in cases of the present kind: QCAT Act s 142(3)(a)(i).

2. These proceedings were originally entitled `Camilleri v Paramount Private Property Management’ (`Paramount’). Paramount was the estate agency managing the premises for its owner, Rita, and according to a standard clause in the agency agreement[2] Paramount could sue and be sued on behalf of its principal. At the hearing the Tribunal ordered that Rita be joined as a respondent, and forthwith entered judgment against her.

   [2]            General Tenancy Agreement (RTA Form 18a) clause 43(2)

3. Upon entering into the lease Luke lodged with Paramount a rental bond in the amount of $3,200.[3] Rental bonds collected by agents are payable in trust to the Residential Tenancy Authority (`RTA’).[4]

   [3]            Tenancy agreement Item 11. Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (`RT

   Act’) s 111.

   [4]            RT Act s 116(1).

4. At the conclusion of the tenancy Rita drew up a schedule headed `Owner Claim against Bond – Luke Camilleri’.[5] As it happens the amount of Rita’s claim was precisely the amount of the bond, namely $3,200.

   [5]            See annexure to minor civil dispute form filed 16 April 2018.

5. Luke rejected that claim, and sought a return of the bond moneys.  But or about 27 February 2018 the RTA paid out the bond to Paramount, who passed it on to Rita.[6]

   [6]Affidavit of Rita Maria Robino sworn 26 November 2018 paragraph 8; email Rita to QCAT 13 August 2018.

6. Luke commenced these proceedings against Paramount on 16 April 2018, claiming the amount of the bond.

7. On 5 July 2018 the registry gave Paramount a notice of hearing on 5 September 2018. Rita was not then recorded as a respondent.

8. On 13 August 2018 Rita emailed to QCAT:

   It’s my understanding that I currently have [a] QCAT [dispute] pending for [the premises] and I am unsure of the status of [this claim]. I have asked my property manager on numerous occasions for updates, and she’s repeatedly advised that she’s heard nothing from QCAT regarding either claim or scheduling of hearing dates ... However, I’ve heard nothing I would appreciate [it] if you could please advise if there is a QCAT claim pending for this property. ... Given that my property manager has now terminated my management contract[7] with these matters still unresolved, any assistance you can provide would be greatly appreciated.

   [7]            The agent gave notice of termination by email on 9 August 2018.

9. To the same email, addressed to QCAT, she added:

   I have asked [Paramount] on numerous occasions for updates and she’s repeatedly advised that advised that she’s heard nothing from QCAT regarding either claim or the scheduling of hearing dates ...

10. On the same day the QCAT office replied to Rita:

    We’re unable to locate a current case using an RTA reconciliation number. If you would like for us [sic] to make another attempt to locate the record some further information will be required, namely the details of the tenants.

11. Rita supplied that information to QCAT on 14 August 2018, but heard nothing further before the trial. As Rita, at that stage, was not a nominated party to the proceedings that is not surprising. It is a reasonable inference from the agent’s non-appearance at the hearing, and the imminent demise of her retainer, that she was not attending very diligently to Rita’s business at this time.[8]

    [8]            The agent denies receipt of the notice of hearing, but an affidavit of service by registry staff dated 5 July

    2018 is to the contrary.

12. On 5 September 2018 the matter came on for hearing before two justices of the peace. Paramount did not appear. The hearing proceeded in its absence. Close to the end of the hearing[9] this exchange between the Tribunal and Luke took place:

    Francis JP: We’ll put you out of your misery there, Mr Camilleri ... We’re going to make an order that the owner pay you the $3,200. We’re going to give them [sic] 14 days to pay.[10]

    [9]            At page 23 in a transcript of 24 pages.

    [10]          Transcript of hearing 5 September 2018 page 23 lines 33, 41-42.

13. Thereupon the following orders were made:

    1     Rita Robina [sic], owner of 12 Apulia Place, Bridgeman Downs Qld 4035 is added as a Respondent.

    2     Rita Robina [sic] is to pay $3,200 to the Applicant within 14 days of the date of this order.

14. According to Rita she first received of this judgment on 11 September 2018. She now seeks leave to appeal complaining inter alia of the absence of an opportunity to be heard.

15. On 13 February 2019 Luke lodged a counter-application suggesting an absence of bona fides relating to the appeal. For reasons that follow it is unnecessary to deal with the counter-application at this stage.

16. As a matter of natural justice, an application to join a party must be served on all existing parties, the proposed new party must have an opportunity to be heard for or against the proposal, and if a joinder is granted, the new party must have a proper hearing on the merits.[11] Regrettably those principles were ignored in this case. In Leda Holdings Pty Ltd v Caboolture Shire Council[12] the Court of Appeal observed:

    The discretion [to allow a joinder] should be approached as intended to facilitate the determination of proceedings in accordance with the rules of natural justice. It should not be approached as if it were intended to restrict the common law right of a person likely to be affected ...

    [11]          Hagan v Bank of Melbourne Ltd [1994] 2 Qd R 507.

    [12] [2007] 1 Qd R 467 at 470.

17. An affidavit in support of a joinder application is a strict requirement.[13]

    [13]          Tim Gordon Property Group Pty Ltd v Helensvale Property Development Pty Ltd [2015] QSC 19 at [17].

18. It may be noted that the Uniform Civil Procedure Rules 1999 (Qld) follow closely the common law. There must be a formal application supported by affidavit evidence. The application must be served on all existing parties. The originating claim must be amended and filed and served on all involved, and in due course the new party, if any, must have a full opportunity to be heard.[14]

    [14]          Uniform Civil Procedure Rules 1999 (Qld) rr 70-74.

19. The procedure adopted in the present case is patently inadequate. The application for leave must be granted, the appeal allowed, and the matter remitted for rehearing by a differently constituted tribunal.

    ORDERS

    1       The application for leave to appeal is granted.

    2       The appeal is allowed.

    3       The orders made by the tribunal herein on 5 September 2018 are set aside.

    4These proceedings are remitted for rehearing by a differently constituted  tribunal at a date to be fixed by the Registry and duly notified to the parties.