Rose v RMR Enterprises t/as Beaudesert Properties
[2014] QCATA 323
•27 October 2014
| CITATION: | Rose v RMR Enterprises t/as Beaudesert Properties [2014] QCATA 323 |
| PARTIES: | Susan Rose (Applicant/Appellant) |
| v | |
| RMR Enterprises t/as Beaudesert Properties (Respondent) |
| APPLICATION NUMBER: | APL278-14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 27 October 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where leave to be represented at hearing refused – where warning to applicant that hearing would proceed without her – where hearing proceeded – where no attendance by applicant – whether want of procedural fairness – whether evidence of bias – whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549 |
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 (Qld) (QCAT Act).
REASONS FOR DECISION
Ms Rose was a tenant of a property managed by RMR Enterprises t/as Beaudesert Properties. She left some goods and documents at the property after the tenancy ended. She asked the agent for the return of her goods, only to be told that it had disposed of them. Ms Rose then filed an application for $6,374 compensation for the loss of those goods. The tribunal dismissed her claim.
Ms Rose wants to appeal that decision. She says she was denied natural justice because, as the tribunal knew, she could not represent herself at the tribunal hearing. She says that there was a perceived bias against her for not attending the hearing because that is the reason why the application was dismissed. She says that the learned Adjudicator did not consider her evidence or submissions because she did not attend the hearing.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]
[1]QCAT Act s 142(3)(a)(i).
[2]Pickering v McArthur [2005] QCA 294 at [3].
Ms Rose is no stranger to this tribunal. There have been three claims – one by the agent and two by Ms Rose – heard at first instance. This is Ms Rose’s second appeal and it is on similar grounds as the previous appeal.
The claim from which this application for leave to appeal comes first came before the tribunal on 17 April 2014. The tribunal granted leave for Ms Rose to be legally represented for that day only. The learned Adjudicator made directions requiring Ms Rose to file and serve sworn statements in support of her claim by 15 May 2014. The learned Adjudicator told Ms Rose’s lawyer[3] that he was not granting leave for representation when the matter was next before the tribunal. He also told Ms Rose’s lawyer[4] that, if Ms Rose did not appear, she would have to take her chances.
[3]Transcript 17 April page 1-7, lines 11 – 12.
[4]Transcript 17 April page 1-13, lines 10 – 37.
Ms Rose has, once again, filed copies of medical certificates to support her submission that she was not able to attend the hearing. The transcript reveals that Ms Rose had a history of non-attendance at tribunal hearings. None of her physical disabilities prevented her from attending the hearing by phone, but she chose not to apply to a telephone attendance. The medical certificate states that her medication ‘can impair her power of making instant decisions and memory’. The medical certificate does not say that Ms Rose is always so impaired. As the learned Adjudicator observed[5], the certificate did not tell him when Ms Rose would be fit to appear. On balance, given the warning issued on 17 April 2014, I am not satisfied that the tribunal denied Ms Rose procedural fairness.
[5]Transcript 12 June page 1-2, lines 35 – 37.
Bias is a very serious allegation. The test is[6]:
… if a fair-minded lay bystander might reasonably apprehend that the decision-maker might not bring an impartial mind to the determination of the issues that he or she must decide.
[6] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
I read the transcript. The learned Adjudicator considered Ms Rose’s material[7] before making his decision. I cannot find any evidence of bias.
[7]Transcript 12 June page 1.
The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[8] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[9]
[8]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125 – 126.
[9]Chambers v Jobling (1986) 7 NSWLR 1 at 10.
The transcript shows that the learned Adjudicator read Ms Rose’s affidavit[10]. He considered Ms Rose’s submissions. There were clear contradictions in the evidence before the learned Adjudicator and he found[11] that Ms Rose had not proven her case to his satisfaction. The evidence can support the learned Adjudicator’s decision and I can find no compelling reason to come to a contrary view.
[10]Transcript page 1-9, lines 33 – 38.
[11]Transcript page 1-9, lines 33 – 40.
There is no reasonably arguable case that the learned Adjudicator was in error. Leave to appeal should be refused.
0
5
0