Roser v Griffin
[2014] QCATA 245
•28 August 2014
| CITATION: | Roser v Griffin [2014] QCATA 245 |
| PARTIES: | Kim Theo Roser (Appellant) |
| v | |
| David Griffin (Respondent) |
| APPLICATION NUMBER: | APL247-14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr J R Forbes, Member |
| DELIVERED ON: | 28 August 2014 |
| DELIVERED AT: | Brisbane |
| ORDER MADE: | The application for leave to appeal is refused. |
| CATCHWORDS: | APPEALS – APPLICATION FOR LEAVE TO APPEAL – decision made in default of appearance by appellant at trial – where appellant claims notice of trial not duly received by him – where onus of proof of non-service is upon the appellant – whether onus discharged – where onus not discharged – where leave to appeal refused Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, ss 136-142 |
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
The applicant (“Roser”) seeks leave to appeal[1] from orders made by the Tribunal on 13 May 2014, in favour of the respondent (“Griffin”).
[1]Leave is required by s 142(3)(a)(i) of the QCAT Act.
From about March 2012 to March 2013, Roser occupied a residence owned by Griffin at 51 Malar Crescent, Nanango, under an oral agreement.
At first instance Griffin applied, in so far as is now material, for an order that he be entitled sell or dispose of property left on the premises by Roser when his occupancy ceased, in or about March 2013.
On the hearing date (13 May 2014) Griffin attended the Tribunal in person. Roser was absent.
In Roser’s absence, the Tribunal ordered that Griffin be authorised to sell or dispose of the subject goods.[2]
[2]Section 363 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (Goods left on premises).
Roser’s application for leave to appeal alleges:
Paperwork arrived same day as hearing. This guy has over $45,000 of mine and my family’s belongings/property. He’s lied to claim it all. I have bank statements, receipts, photo’s [sic] to prove myself in the right, and have been unfairly wronged.
“Paperwork” presumably means the notice of hearing,[3] and “this guy” plainly refers to Griffin.
[3]See paragraph 9, below.
Roser has filed no material in support of his application for leave.
According to an unsworn statement by Roser in another application[4] he received the notice of hearing by post on 13 May 2014, and, so it seems, after the subject order was made at 10.24 am[5] that day. In the same document Roser claims that he immediately telephoned the QCAT registry, and was advised to seek a reopening.[6] If that communication ever occurred, the Adjudicator was unaware of it when he gave judgment.[7]
[4]Application to stay the decision, filed 20 May 2014.
[5]Transcript page 8
[6]QCAT Act, ss 136-141.
[7]Transcript, page 2, lines 18-41.
Roser’s application for a reopening was refused on 26 August 2014.
According to certificate of service endorsed on the file copy notice of hearing, a copy of same was posted to Roser’s address on the record,[8] namely 19 McDougall Street, Yarraman, Queensland (“the Yarraman address”) on Wednesday 30 April 2014, to be delivered in the ordinary course of post on Friday 2 May 2014.
[8]Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 39(1).
In the originating application for Minor Civil Dispute,[9] Roser’s address is noted as the Yarraman address. Roser does not allege non-receipt of that document.
[9]Filed on 25 March 2014.
In several subsequent documents signed and filed by Roser himself, namely an application for reopening,[10] an application for a stay of the primary decision,[11] an application for leave to appeal,[12] and an affidavit of service of the latter document,[13] Roser locates himself at the Yarraman address.
[10]Filed on 20 May 2014.
[11]Filed on 20 May 2014.
[12]Filed on 2 June 2014.
[13] Sworn by Kim Roser on 27 June 2014, filed on 4 July 2014.
The position, then, is that on 27 June 2014, Roser stated on oath that he was residing at the Yarraman address. On 13 May 2014 (the hearing date) Griffin gave sworn, albeit first-hand hearsay evidence, that Roser then resided at the Yarraman address. The source of Griffin’s evidence was an apparently reliable source, namely information from the police[14] some six weeks earlier.[15] That would have been in early April 2014, several weeks before the notice of hearing was posted to the Yarraman address.
[14]Transcript page 2 lines 27-35.
[15]Which would be in early April 2014, several weeks before these proceedings began.
The registry has a well-established practice of recording “file notes” of telephone communications to and from parties to proceedings. The file in this matter does not include any note of a communication from Roser on or about 13 May 2014.
The onus is upon Roser to satisfy this Tribunal that he did not receive timely notice of the hearing. In the premises I am not so satisfied. It necessarily follows that no arguable error appears, and that leave to appeal must be refused.
ORDER
The application for leave to appeal is refused.
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