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Pavitt v Fisher-Charles[2015] QCATA 132

Pavitt v Fisher-Charles[2015] QCATA 132

CITATION:

Pavitt v Fisher-Charles [2015] QCATA 132

PARTIES:

Tina Pavitt

(Applicant/Appellant)

v

Adam Fisher-Charles

(First Respondent)

Anne Fisher-Charles

(Second Respondent)

APPLICATION NUMBER:

APL247-15

MATTER TYPE:

Appeals

HEARING DATE:

4 September 2015

HEARD AT:

Brisbane 

DECISION OF:

Justice Carmody

DELIVERED ON:

4 September 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

THE APPEAL TRIBUNAL ORDERS THAT:

  1. Leave to appeal is granted.
  1. The matter is adjourned for a one day hearing at the Queensland Civil and Administrative Tribunal at date to be listed not before 30 September 2015.
  1. The parties are granted leave to appear by teleconference.
  1. The appeal will be conducted by rehearing.
  1. The applicant must file any submissions and additional evidence and material the applicant intends to rely on at the hearing referred to in Direction 2 by:

4:00PM, 11 September 2015

  1. The respondents must file any submissions, including the identification of a clear legal basis for their Minor Civil Dispute claim in MCD39/15, and additional evidence and material the respondents intend to rely on at the hearing referred to in Direction 2 by:

4:00PM, 18 September 2015

  1. The applicant may, but is not required to, file submissions in reply to the submissions of the respondents by:

4:00PM, 25 September 2015

  1. Notwithstanding Directions 4, 5, 6 and 7, the applicant and respondents will be required to seek leave of the Appeal Tribunal to adduce any additional evidence and material, which was not before the original decision-maker, that the applicant or respondents intend to rely on at the hearing referred to in Direction 2.
  1. If the applicant or respondents are not prepared to present their case on the date to be listed in accordance with Direction 2, the matter may proceed on the basis of the evidence before the Appeal Tribunal.

CATCHWORDS:

APPEAL – MINOR CIVIL DISPUTE –APPLICATION FOR LEAVE TO APPEAL AND APPEAL – DENIAL OF PROCEDURAL FAIRNESS – REFUSAL OF ADJOURNMENT PROFESSIONS AND TRADES – LAWYERS –where the applicant was the owner of a residential property which was leased as holiday accommodation – where the respondents contracted with the application for temporary accommodation – where the applicants claim certain defects in the condition and facilities of the premises renders it uninhabitable or contrary to certain representations made in online advertisements – where the applicants filed a minor civil dispute claim in the Queensland Civil and Administrative Tribunal jurisdiction of the Magistrates Court – where the listing for the proceedings was modified significantly by the respondents and the applicant – where the applicant was labouring under significant circumstantial exigencies at a time immediately anterior to the hearing – were the applicant adduced sworn oral evidence that she had attempted to contact several witnesses who failed to appear as organised at the hearing – where the applicant sought to support the oral evidence with written communications contained on her mobile phone – where the Magistrate refused to receive evidence of the written communications on the mobile phone – where the Magistrate refused to grant an adjournment – where the Magistrate relied on the evidence adduced by the respondents – where the Magistrate ordered that the applicant reimburse the respondent for the filing fee and the full value of the rent of the property over the full duration of the contracted tenancy – where the applicant filed an application for leave to appeal and appeal on the grounds of mixed questions of fact and law – where the applicant asserts that she was denied procedural fairness as a result of the refusal of the request for adjournment – whether the applicant was denied procedural fairness – whether leave to appeal should be granted on the basis of a serious question to be tried.

Competition and Consumer Act 2010 (Qld), Sch 2 (Australian Consumer Law)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 3, 28, 147

Ratten v The Queen (1974) 131 CLR 510

R v Maniadis [1997] 1 Qd R 593

R v Verrall [2015] QCA 72.

APPEARANCES and REPRESENTATION:

APPLICANT:

Tina Pavitt (self-represented)

FIRST RESPONDENT:

Adam Fisher-Charles (self-represented)

SECOND RESPONDENT:

Anne Fisher-Charles (self-represented)

REASONS FOR DECISION

  1. [1]
    The practical effect of the Magistrate’s decision in this case is that the respondent tenants did not have to pay $4,700.00 in rent for a three week residential tenancy of the applicant lessor’s premises because it was not fit for the agreed purpose or, if it was, the condition and facilities of the premises were inconsistent with certain written representations made in online advertising material. 
  2. [2]
    The primary defects identified by the respondents include insecurity, ambient discomfort, hazards and non-compliance with certain regulations or construction standards. 
  3. [3]
    The applicant claims that the respondents lacked any legal or factual entitlement to a refund or rent abatement because the premises complied with their description, were habitable, and delivered reasonable value for the price of the accommodation.  The applicant further submits that if the disputed deficiencies were established to exist, they did not legally justify repudiation of the contract or reduction of rent and, therefore, the applicant is not required to reimburse the respondents the value of the prepaid rent.
  4. [4]
    Accordingly, the applicant contends that the Magistrate’s decision was wrong in law and fact, and contrary to the weight of the evidence presented at the hearing.  The applicant also contends that the Magistrate deprived himself of the chance of reaching the correct and just conclusion because he denied her procedural fairness by refusing a reasonable request for an adjournment to allow her to adduce evidence to contradict the respondent’s case with photographic evidence, expert witnesses, and other witness testimony, which was unavailable for reasons beyond her control and forcing her to poorly present her a partially prepared and inadequate defence when, with a little more time, she could have had a fair hearing without prejudicing her opponents. 
  5. [5]
    The applicant has demonstrated that there were significant modifications to the initial date for the hearing to be listed and circumstantial exigencies impeded her ability to prepare for the hearing.  The applicant has also demonstrated that sworn oral evidence was given to the Magistrate that she had several witnesses who had failed to appear in accordance with her requests.  The Magistrate also refused to receive evidence of emails or text messages contained on the mobile phone of the applicant which may have established her attempts to secure the attendance of the witnesses.
  6. [6]
    The Queensland Civil and Administrative Tribunal is required to resolve disputes in a manner which is accessible, fair, just, economical, informal and quick.[1]  This does not, however, alleviate the duty of the Tribunal to afford parties – especially unsophisticated and unrepresented litigants with limited resources – procedural fairness.[2]  The requirements of natural justice demand that the Tribunal ensure that each party is provided a reasonable opportunity to present their case.  Where the evidence establishes that a party has been deprived of a reasonable opportunity to present their case by reason of circumstantial exigencies beyond their control, and an adjournment would not prejudice the opposing parties or result in undue or inordinate delay, the Tribunal should grant an adjournment. 
  7. [7]
    On the evidence presented to the Appeal Tribunal, the applicant has demonstrated that there is a serious question to be tried as a result of the Magistrate failing to provide the applicant with natural justice.  Therefore, leave to appeal should be granted.
  8. [8]
    As the grounds of appeal enumerated by the applicant involve mixed questions of law and fact, there is no power to remit the application to the original decision-maker.[3]  Therefore, the appeal shall be conducted by the Appeal Tribunal by way of rehearing.[4]
  9. [9]
    On the material before the Appeal Tribunal, the respondents have not clearly articulated the legal basis for their originating application for recovery of the $4,700.00 paid to the applicant for accommodation, except by ambiguous and unparticularised references to the Australian Consumer Law.  The lack of clarity in the submissions of the respondents creates a real risk of prejudicing or embarrassing any response to their originating application which may be presented by the applicant in the rehearing.
  10. [10]
    Accordingly, the Appeal Tribunal has required the applicant to file submissions and any additional material she seek to rely on in the appeal.  The respondents are required to file submissions in response to the submissions of the applicant to: (a) respond to the enumerated grounds of appeal; and (b) clarify the legal grounds of their originating application.  The applicant is invited to file submissions in reply to the submissions of the respondent once the legal basis of their claim is appropriately particularised.
  11. [11]
    Although the Appeal Tribunal has invited both parties to file any new evidence or material with the Tribunal that they seek to rely on in the rehearing, the parties should take note that the evidence shall not be received as a matter of course.  The parties will need leave of the Appeal Tribunal to adduce any new evidence, which was not before the original decision-maker, in the rehearing.[5]  Leave will only be granted in accordance with the ordinary principles of law governing the adduction of new evidence on appeal, making appropriate allowances for the modified procedures of the Queensland Civil and Administrative Tribunal.[6] 

Orders

  1. [12]
    It is the decision of the Appeal Tribunal that:
  1. Leave to appeal is granted.
  1. The matter is adjourned for a one day hearing at the Queensland Civil and Administrative Tribunal at date to be listed not before 30 September 2015.
  1. The parties are granted leave to appear by teleconference.
  1. The appeal will be conducted by rehearing.
  1. The applicant must file any submissions and additional evidence and material the applicant intends to rely on at the hearing referred to in Direction 2 by:

4:00PM, 11 September 2015

  1. The respondents must file any submissions, including the identification of a clear legal basis for their Minor Civil Dispute claim in MCD39/15, and additional evidence and material the respondents intend to rely on at the hearing referred to in Direction 2 by:

4:00PM, 18 September 2015

  1. The applicant may, but is not required to, file submissions in reply to the submissions of the respondents by:

4:00PM, 25 September 2015

  1. Notwithstanding Directions 4, 5, 6 and 7, the applicant and respondents will be required to seek leave of the Appeal Tribunal to adduce any additional evidence and material, which was not before the original decision-maker, that the applicant or respondents intend to rely on at the hearing referred to in Direction 2.
  1. If the applicant or respondents are not prepared to present their case on the date to be listed in accordance with Direction 2, the matter may proceed on the basis of the evidence before the Appeal Tribunal.

Footnotes

[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3(b).

[2] Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 28(2), (3)(a). 

[3] Queensland Civil and Administrative Tribunal 2009 (Qld) s 147(3).

[4] Queensland Civil and Administrative Tribunal 2009 (Qld) s 147(2).

[5]  See Ratten v The Queen (1974) 131 CLR 510; R v Maniadis [1997] 1 Qd R 593; R v Verrall [2015] QCA 72.

[6] Queensland Civil and Administrative Tribunal 2009 (Qld) ss 28(1), (3)(b).

Close

Editorial Notes

  • Published Case Name:

    Pavitt v Fisher-Charles

  • Shortened Case Name:

    Pavitt v Fisher-Charles

  • MNC:

    [2015] QCATA 132

  • Court:

    QCATA

  • Judge(s):

    Carmody J

  • Date:

    04 Sep 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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