Tribel v Cooloola Cabins and Caravan Park
[2015] QCATA 96
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- Unreported Judgment
- Tribel v Cooloola Cabins and Caravan Park[2015] QCATA 96
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Tribel v Cooloola Cabins and Caravan Park[2015] QCATA 96
Tribel v Cooloola Cabins and Caravan Park[2015] QCATA 96
CITATION: | Tribel v Cooloola Cabins and Caravan Park [2015] QCATA 96 |
PARTIES: | Steven Tribel (Applicant/Appellant) v G M and J M Holland trading as Cooloola Cabins and Caravan Park (Respondent) |
APPLICATION NUMBER: | APL488-14 |
MATTER TYPE: | Appeals |
HEARING DATE: | 19 June 2015 |
HEARD AT: | Brisbane |
DECISION OF: | Member Barlow QC |
DELIVERED ON: | 3 July 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | APPEAL – NATURAL JUSTICE – whether the decision of the tribunal, made in the appellant’s absence based on oral evidence not foreshadowed in written statements of evidence, was made contrary to the rules of natural justice Manufactured Homes (Residential Parks) Act 2003 (Qld), s 38 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 29, s 142 Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1 Lida Build Pty Ltd v Miller [2010] QCATA 17 |
APPEARANCES: |
|
APPLICANT: | Steven Tribel appeared for himself |
RESPONDENT: | Gregory Holland and Jennifer Holland appeared for themselves |
REASONS FOR DECISION
Member Barlow QC
- [1]On 19 June 2015, the Appeal Tribunal made orders in this appeal. These are the reasons for those orders.
- [2]This appeal is from a decision of a single member in OCL047-14. That decision concerned an application by the respondents to this appeal, Mr and Mrs Holland, for termination of a site agreement between them and Mr Tribel that was made pursuant to the Manufactured Homes (Residential Parks) Act 2003 (Qld). The learned Member ordered that the agreement be terminated with effect from 2 October 2014 and required Mr Tribel to give vacant possession of the site by no later than that date.
- [3]This appeal is pursuant to s 142(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). Pursuant to that Act, an appeal may be brought to the Appeal Tribunal but, if the appeal involves questions of fact or mixed questions of law and fact, it may only be brought by leave.
- [4]The first ground of the application for leave to appeal or the appeal that was filed by Mr Tribel on 12 November 2014, is that ‘there has been a substantial injustice and an appeal is necessary to correct the decision’. The second ground is that ‘relevant evidence supplied by me was not presented correctly by [the learned Member]’. Ground 6 relevantly was that:
The injustice therefore is that I did not receive a fair & just hearing from all my evidence presented ‘on the papers’ including the assault that occurred on the 25th January 2014 [sic].
- [5]It is clear form Mr Tribel’s submissions, if not from the application for leave to appeal or appeal, that the grounds of the appeal are effectively that the learned Member did not take into account the evidence and submissions that had been filed by Mr Tribel and that, at the hearing, oral evidence was led on behalf of the applicants of which no notice had been given to Mr Tribel and about which he would have wanted to adduce contrary evidence.
- [6]To my mind, these grounds of appeal are, in essence, that the Tribunal failed to give Mr Tribel a proper opportunity to be heard, particularly as to the additional oral evidence that was given, and therefore failed to accord him natural justice. Such a ground of appeal is an appeal on a question of law, as a failure to grant natural justice is a fundamental failure of the duty of the Tribunal. That being the case, Mr Tribel does not need this Tribunal’s leave to appeal from the decision.
- [7]But even if the appeal involved questions of mixed law and fact, as discussed below, there has been a sufficiently grave error by the Tribunal to warrant leave being granted and the appeal being allowed.
- [8]The application below was made pursuant to s 38(1)(b) of the Manufactured Homes (Residential Parks) Act 2003. That section relevantly provides that, on application by the park owner under a site agreement, the Tribunal may make an order terminating the agreement on the ground that the home owner has assaulted a person who was lawfully in the residential park. Mr and Mrs Holland are the park owners and Mr Tribel was a home owner.
- [9]In the application itself, nine grounds for the application were listed. They were generally to the effect that Mr Tribel had a history of being abusive towards other homeowners and attempting to intimidate other homeowners. However, the ground upon which the applicants specifically relied at the hearing was ground number 6, namely ‘a homeowner has complained to the Police about the respondent seriously assaulting her on 27 May 2014’.
- [10]Mr and Mrs Holland were represented at the hearing by a solicitor, Mr Cuddihy. Mr Cuddihy opened the applicants’ case by saying that the allegation was that Mr Tribel seriously assaulted one of the other park residents, Ms Christine Corbridge, on 27 May 2014. Ms Corbridge was the only witness to be called in respect of that assault, as there were no other witnesses. The other witnesses were essentially providing background evidence which, Mr Cuddihy contended, related mainly to credibility rather than direct evidence about the assault.
- [11]Before the hearing took place, the Tribunal had directed that Mr and Mrs Holland file in the Tribunal and give to Mr Tribel a copy of all material on which they intended to rely at the hearing, which material must contain statements of all witnesses, each witness statement having attached to it all relevant documents with an explanation in the statement as to how they were relevant and all attachments were to be page numbered and referred to in the statements. Mr Tribel was similarly ordered to provide a copy of all material upon which he intended to rely at the hearing. The hearing was listed in Brisbane on 2 September 2014 commencing at 9.30am and the date and time of that hearing were confirmed by subsequent directions of the Tribunal.
- [12]Mr Tribel did not attend the hearing. He wrote to the Tribunal a few days before the hearing date, informing it that he would not be appearing. He said in his letter that he had sought legal and medical advice on whether he should appear in person, and the response to the application that he had given to QCAT on paper was the truth to the best of his knowledge. He said that he was prepared to rely on his witness statements to prove that the applicants and their witnesses had given false and misleading information and that he was not guilty of physically or technically assaulting any person who was lawfully in the park. The learned Member had regard to that letter at the commencement of the hearing.
- [13]Mr Cuddihy called a number of witnesses and tendered their witness statements that had been filed and served in accordance with the Tribunal’s earlier directions. Most of the witnesses essentially confirmed and, in some cases, expanded slightly upon the facts referred to in their written statements. Most relevantly, it was clear from the statement and the oral evidence of Mrs Corbridge that the assault on her, which was the basis for the application, occurred outside the caravan park.
- [14]The other witness whose evidence was particularly material to the reasons for decision was that of Mrs Mason. She gave a witness statement[1] which concerned Mr Tribel’s behaviour at a meeting of the Cooloola Cabin Owners’ Association on 19 March 2014. Her evidence did not include any actual assault by Mr Tribel, nor any clear threat to assault anyone.
- [15]However, in her oral evidence Mrs Mason gave evidence of an occasion on which, she said, Mr Tribel assaulted her by pushing her so that she fell over and injured her left elbow. Exhibit 7 comprised photographs of Mrs Mason’s arm after the incident. No evidence of that incident had been given in any of the written statements that had been filed and served on behalf of the applicants.
- [16]Interestingly, in his written evidence Mr Tribel had attached to his statement a letter that he had written on 4 February 2013 to the park owners (the applicants), informing them that he had been assaulted by Mrs Mason on the evening of 25 January 2013. His description of the assault demonstrates that that incident was the incident to which Mrs Mason was referring in her oral evidence. In his letter, Mr Tribel said that there was a witness to the incident who was interviewed by the police later that evening.
- [17]In the course of his final submissions to the Tribunal, Mr Cuddihy on behalf of the applicants sought to enlarge the basis of the application, having regard to all of the evidence that had been tendered on behalf of the applicants, to add as a ground of the application that the homeowner repeatedly interfered with the quiet enjoyment of the residential park by the park’s residents and continued that behaviour after the park owner gave him notice in the approved form requiring him to stop the behaviour.[2] The learned Member declined to grant leave to expand the grounds of the application in that respect, stating:
Given that Mr Tribel is not here present before the tribunal and given that Mr Tribel has no legal representation I feel it would be unfair to enlarge the application at this late stage to include impact on the quiet enjoyment of others. Accordingly, it’s [sic] my determination of the application is one that must be considered solely on the grounds specified in the filed materials, those materials to which Mr Tribel has had a sufficient opportunity to respond. That is the allegation that his site agreement should now be terminated by reason that he has committed an assault upon another person lawfully upon the park.
- [18]The learned Member then turned to the evidence. He said, with respect quite correctly, that not all of the evidence that he had heard was germane to the issue that he must decide. He then turned in particular to Mrs Mason’s evidence, noting that she had given oral evidence in relation to an instance of assault that occurred on 25 January 2013. He accepted Mrs Mason’s evidence and found that it constituted an instance of assault. He noted the letter that was attached to Mr Tribel’s statement of evidence in which he had alleged that Mrs Mason had assaulted him and that he simply pushed her while defending himself. The learned Member concluded that he did not find on the balance of probabilities that that is how the matter transpired at all, but rather he accepted Mrs Mason’s evidence. He concluded that he was satisfied:
that that instance in and of itself, that being the episode on the evening of Friday 25 January 2013, makes out the grounds in s 38(1)(b) of the Act, that is, that Mr Tribel who is a homeowner has assaulted a person who was lawfully in the residential park.
- [19]The learned Member then went on to deal with the evidence of Mrs Corbridge, correctly noting that primarily the application was brought in relation to the assault on that lady. He noted that that assault occurred outside the park and determined that it did not enliven s 38(1)(b) because the provision provides that grounds for termination only arise where a homeowner has assaulted a person who was lawfully in the residential park. With respect, I agree with his reasoning and conclusion in that regard. Mrs Corbridge’s evidence did not demonstrate behaviour by Mr Tribel that fell within s 38(1)(b) of the Act. It could not, therefore, constitute a reason under that paragraph for an order terminating the site agreement.
- [20]The learned Member concluded by finding that the site agreement should be terminated because of the assault on Mrs Mason on 25 January 2013.
- [21]Mr and Mrs Holland submitted relevantly on the appeal that no substantial injustice had occurred because the learned Member found that Mr Tribel had assaulted a person who was lawfully in the park. As to ground 6 of the appeal, they contended that it was simply an attempt to introduce new evidence that should have been introduced at the hearing of the matter and was therefore irrelevant to and not a proper ground of appeal.
- [22]In answer to concerns which I expressed, during the course of submissions on the appeal, about the additional oral evidence given by Mrs Mason being the only evidence of any assault within the park, Mr Holland referred to a statement of Mr Morris[3] which concerned an assault on him that had occurred on 19 November 2010. He submitted that that was further evidence, that had been given to Mr Tribel and that demonstrated an assault by him on a person lawfully in the park. However, that assault had been the subject of a prior application to the Tribunal for termination of the site agreement under s 38(1)(b),[4] which was resolved by consent orders and an undertaking by Mr Tribel. The circumstances of that assault, therefore, cannot be used for the grounds of another application on the same basis. Having regard to the resolution of that complaint, although there may not be res judicata (because no finding was made by the Tribunal about the alleged assault), in my view it would be an abuse of process for the applicants to rely on the same assault as a ground for a later application for termination of the site agreement.
- [23]
- [24]In Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam,[7] Gleeson CJ said:
Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
- [25]Furthermore, as has very recently been said by the New South Wales equivalent of this Appeal Tribunal:
It is a fundamental principle that a party to legal proceedings must have a reasonable opportunity to be heard. … justice generally requires that parties against whom orders are made must be given a reasonable opportunity of appearing and presenting their case.[8]
- [26]I would add that justice also generally requires that parties must be given a reasonable opportunity of knowing and contesting the other party’s case.
- [27]Having regard to the directions which had been made by the Tribunal that each party file and serve written statements of all the evidence upon which it proposed to rely at the hearing, I consider that the learned Member was in error in allowing into evidence the oral evidence of Mrs Mason concerning the incident in January 2013. On the same basis that the learned Member (with respect, correctly) refused to allow the applicants to enlarge the grounds for the application for termination, he should have refused to take into account the additional oral evidence of Mrs Mason. As the learned Member said, the application must be considered solely on the grounds specified in the filed materials to which Mr Tribel has had a sufficient opportunity to respond. The incident with Mrs Mason that occurred in January 2013 was not an incident referred to in any of the applicants’ filed materials, nor an incident about which Mr Tribel had had a sufficient opportunity to respond. Although he had given evidence of the incident, he clearly stated in that evidence that there was another witness and, as he states in ground 6 of his application for leave to appeal and appeal, had he known that any evidence about that incident would be given on behalf of the applicants, he would have taken steps to call that witness.
- [28]In my opinion, in allowing the evidence of Mrs Mason and using it as the basis (particularly the sole basis) for making the orders that he did, the learned Member erred and failed to accord Mr Tribel natural justice. In doing so, the Tribunal did not carry out its obligations under s 28(2) and s 28(3)(a) of the QCAT Act. The learned Member, with respect, erred in law by failing to accord Mr Tribel natural justice.
- [29]Having regard to that error, the appeal must succeed. It is no answer that Mr Tribel chose not to appear. Mr Tribel may have elected to attend, or may have filed and served other written evidence, had he been alerted in Mrs Mason's witness statement that she would canvas the incident in January 2013. Even if he had been present, if Mrs Mason had given that evidence, he may well have sought and been granted an adjournment so that he could call the witness to the incident. He has indicated to this Appeal Tribunal that he would wish to call such evidence if he had the opportunity.
- [30]For these reasons, I concluded that the appeal should succeed, the decision of the learned Member should be set aside, and the matter should be remitted to the Tribunal to be decided after a further hearing and an opportunity for the parties to provide further evidence.
Member Ryan
- [31]I have had the benefit of reading Member Barlow's reasons in draft. I agree with his reasons and conclusions and the order he proposes. I wish only to refer briefly to s 29 of the QCAT Act and the observations of Wilson J, the President of the Tribunal (as he then was), on that section in Lida Build Pty Ltd v Miller:[9]
...s 29...requires that the Tribunal must take all reasonable steps to ensure that each party to a proceeding understands the practices and procedures of the Tribunal, the nature of assertions made in the proceeding and the legal implications of the assertions, and any decision of the Tribunal relating to the proceeding. While this provision largely reflects and embodies what the courts have said in recent years is the nature of the duty owed to self representative (sic) litigants, it also suggests that parties to proceedings before this Tribunal will receive, and have an entitlement to expect, assistance with the legal implications of the issues in the case.
- [32]Whilst the learned Member in fact implemented the protection s 29 affords a litigant in person with respect to the application to enlarge the basis of the original application, he has not sustained that attention to s 29 to the question of the disadvantage to Mr Tribel of allowing Mrs Mason's evidence to be heard, and to be decisive, when he had no knowledge it was to be canvassed. The section further supports the findings of the Appeal Tribunal that Mr Tribel was not accorded sufficient opportunity to respond to that evidence.