Rose v RMR Enterprises t/as Beaudesert Properties
[2014] QCATA 286
•9 October 2014
| CITATION: | Rose v RMR Enterprises t/as Beaudesert Properties [2014] QCATA 286 |
| PARTIES: | Susan Rose (Applicant/Appellant) |
| v | |
| RMR Enterprises t/as Beaudesert Properties (Respondent) |
| APPLICATION NUMBER: | APL317 -14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe OAM |
| DELIVERED ON: | 9 October 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – where application for leave to be represented at hearing – where application not decided before hearing – where hearing proceeded – where no attendance by applicant or proposed representative – whether grounds for leave to appeal REPRESENTATION - where applicant claimed impaired capacity – where no evidence of impaired capacity – whether tribunal should have allowed representation Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 43(2)(b)(i) 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. At the end of the tenancy, Beaudesert Properties filed an application for compensation for repairs required to bring the tenancy up to standard. The tribunal ordered Ms Rose pay Beaudesert Properties $5,597.68.
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 the tribunal ignored the effect of s 43 of the QCAT Act in not allowing her to be represented at the hearing. She says that she did not know her application for leave to be represented had been refused until part way through the hearing. She says that there was a perceived bias against her for not attending the hearing. 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].
Section 43(2)(b)(i) of the QCAT Act does give an automatic right to representation if a party has impaired capacity. ‘Impaired capacity’ is defined in Schedule 3 of the Act by reference to the Guardianship and Administration Act 2000 (Qld). That Act, unhelpfully, defines the term as meaning that the person does not have capacity for a matter. ‘Capacity’ is defined in that Act as meaning that the person is capable of understanding the nature and effect of decision about a matter, freely and voluntarily making decisions about the matter and communicating the decisions in some way.
Normally, the evidence of impaired capacity is a tribunal order appointing a Guardian although I accept that the definition in the Guardianship and Administration Act and therefore the QCAT Act does not require the appointment of a guardian.
The tribunal had to be satisfied that Ms Rose lacked capacity before it could allow representation. Ms Rose had the obligation of establishing her lack of capacity.
Ms Rose was not entitled to assume that her application for leave for representation would be successful and, therefore, make no arrangements to attend personally[3].
[3]See the comments of Dr Forbes in Wimberley v Misevski[2013] QCATA 223.
Neither Ms Rose nor her proposed representative appeared at the hearing. If the representative had appeared at the hearing, and argued the application of s 43(2)(b)(i), it is possible that Ms Rose would have been represented at the hearing.
Ms Rose’ application for representation filed 24 June 2014 refers to a doctor’s certificate being attached but the certificate was not attached. She filed an affidavit sworn 9 July 2014. She did not exhibit the missing doctor’s certificate. The tribunal did not ignore the operation of s 43 of the QCAT Act because Ms Rose did not file any material to allow the tribunal to make a finding of impaired capacity.
In her affidavit sworn 9 July 2014, Ms Rose swore to the issue, called for the application to be dismissed, and stated:
…if this application is to be heard again at this time…
The learned Adjudicator was entitled to treat Ms Rose’s affidavit as an invitation to proceed with the hearing in her absence, which he did.
For all of these reasons, I am not persuaded that the tribunal failed to give Ms Rose procedural fairness.
Bias is a very serious allegation. The test is[4]:
… 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.
[4] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
Ms Rose has provided no particulars of her allegation of bias and I can find no evidence of bias in the transcript.
The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[5] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[6]
[5]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[6]Chambers v Jobling (1986) 7 NSWLR 1 at 10.
The transcript shows that the learned Adjudicator read Ms Rose’s affidavit[7]. He considered her submissions. He found there were clear contradictions in the evidence before him and he preferred the evidence of Beaudesert Properties[8]. The evidence can support the learned Adjudicator’s decision and I can find no compelling reason to come to a contrary view.
[7]Transcript page 1-21, lines 1- 3.
[8]Transcript page 1-26, lines 3 – 9.
There is no reasonably arguable case that the learned Adjudicator was in error. Leave to appeal should be refused.
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