Kitchen v Lloyd [2010] QCATA 102 (9 December 2010)

Last Updated: 21 December 2010

CITATION:

Burns v James [2010] QCATA 101

PARTIES:	Gerald Peter Burns (Applicant/Appellant)
	v
	Leon Russell James (Respondent)

APPLICATION NUMBER: APL146-10

MATTER TYPE:

Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF:

Justice Alan Wilson, President

DELIVERED ON: 8 December 2010

DELIVERED AT: Brisbane

ORDERS MADE: Application for leave to appeal is refused

CATCHWORDS :

RESIDENTIAL TENANCIES – ABSENCE AT HEARING – RE-OPENING – LEAVE TO APPEAL – where the appellant failed to attend a scheduled hearing – where the appellant was granted a reopening but again failed to attend – where the a second reopening application was refused – where appellant seeks leave to appeal refusal to reopen – whether decision to refuse a reopening can be appealed Queensland Civil and Administrative Tribunal Act 2009, ss137, 139(5), 142(3)

APPEARANCES and REPRESENTATION:

By order of the Appeal Tribunal the application for leave to appeal (and appeal, if leave is granted) were directed to be determined on the papers pursuant to s32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

[1] This matter has a lengthy and confused history, principally because Mr Burns has failed to provide QCAT with a mail address at which mail will actually, and reliably, reach him.
[2] The current appeal proceeding began in QCAT’s Minor Civil Disputes jurisdiction, with a disagreement over the rental bond for premises at Hope Island owned by Mr Burns, and rented, last year, by Mr and Mrs James.
[3] On the residential tenancies agreement Mr Burns address is shown as ‘Shop 13/340 Hope Island Road, Hope Island’. That is also shown as the address for his agent, the managers of the property on his behalf – WB Property Management. It was shown as Mr Burns address on the original dispute application, and was the address to which that application and a notice of hearing were sent by QCAT prior to a hearing on 19 April 2010.
[4] At that hearing it was ordered that the Residential Tenancies Authority pay out, from the bond, the sum of $2,451.02 to Mr James and $523.98 to Mr Burns. Neither Mr Burns nor any representative of WB Property Management attended the hearing.
[5] In a fax of 23 April 2010 Mr Burns said that he had not been notified of the hearing date. In sympathy with that plea a QCAT adjudicator reopened the proceeding under the QCAT Act[1] and notices of a fresh hearing scheduled for 13 May 2010 were sent to Mr Burns, at the post office box address nominated in his fax of 23 April 2010.
[6] Nevertheless he again failed to attend at the reopened hearing and, on that day, another QCAT adjudicator confirmed the earlier orders of 19 April 2010.
[7] A new application for reopening was then brought, in the name of WB Property Management on Mr Burns’ behalf. It was said that the reason for the reopening was that the notice of the hearing on 13 May had gone to Mr Burns’ post office box and not the agents (the notice had gone, of course, to the very PO Box address Mr Burns had given QCAT in his message of 23 April).
[8] The first reopening, in late April, was allowed in circumstances which can fairly be described as generous. The notice had been sent to Mr Burns at the address of his agent – the address shown on the tenancy agreement – and they, he said, had passed the documents on to his home and not to his ‘pre-arranged monthly mail pickup’. There is no suggestion that QCAT knew of the latter arrangements, or his address for that purpose and it can only be assumed any error was that of WB Property Management or Mr Burns or some combination of them.
[9] Under s137 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) a ‘reopening ground’ is defined to include the circumstance that a party did not appear at the hearing but had a reasonable excuse for not attending; or, would suffer a substantial injustice because new evidence has arisen, which was not reasonably available at the first hearing.
[10] The second application to reopen was refused by another QCAT adjudicator on 6 July 2010. In his written reasons, he said:

...the Tribunal is satisfied that the respondent did not have a reasonable excuse for not attending the hearing on 13 May 2010 and further that no substantial injustice has been occasioned to the respondent their being no significant new evidence which was not available when the application was heard on 13 May 2010.

[11] The present application for leave to appeal is also brought by WB Property Management, on Mr Burns’ behalf. It faces the significant statutory hurdle of s139(5) which provides that QCAT’s decision on a reopening application is:

...final and cannot be challenged, appealed against, reviewed, set aside, or called in question in another way, under the Judicial Review Act 1991 or otherwise.

[12] What is sought to be appealed is the decision of the adjudicator to refuse a second reopening on 6 July 2010. In light of this provision, any appeal is prohibited. Leave to appeal is also, in any event, necessary: QCAT Act, s142(3). Because no appeal can be brought, leave would be futile.
[13] Even if a contrary view had been reached, the history of the matter set out above shows that the two consecutive failures of Mr Burns, or his agents, to appear are to be attributed entirely to one or both of them. The respondent has appeared on both occasions, and is blameless. To allow a third hearing, in this jurisdiction, would be intolerable.

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[1] Chapter 2 Part 7, Division 7