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Starr v Neave[2017] QCATA 49

CITATION:

Starr v Neave [2017] QCATA 49

PARTIES:

Catherine Starr

(Appellant)

 

v

 

Bruce Neave

(Respondent)

APPLICATION NUMBER:

APL377-16

MATTER TYPE:

Appeals

HEARING DATE:

11 April 2017

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

Ex tempore 11 April 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The application for miscellaneous matters filed 30 March 2017 to remove Sutherlands Property Management Group as a party to the proceeding is granted.
  2. The application for miscellaneous matters filed 27 February 2017 for Sutherlands Property Management Group to produce documents is refused.
  3. Leave to appeal is granted.
  4. The appeal is allowed.
  5. The decision in MCDT477/16 dated 3 August 2016 is set aside.
  6. The proceeding is returned to the Tribunal for rehearing at Southport before a different Adjudicator.
  7. The rehearing shall be held on the basis of the material before the original Tribunal.
  8. Catherine Starr may file evidence in response to the counter claim only. If Catherine Starr files any evidence, she must file one (1) copy in the Tribunal and give one (1) copy to Bruce Neave by 4:00pm on 9 May 2017.
  9. If Catherine Starr does file evidence in response to the counter claim, Bruce Neave may file one (1) copy in the Tribunal and give one (1) copy to Catherine Starr of any material in response by 4:00pm on 16 May 2017.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – POWERS AND PROCEDURE – where Tribunal refused to adjourn hearing on the basis of an email requesting an adjournment for medical reasons supported by a medical certificate – whether procedural fairness – whether grounds for appeal

APPEAL – LEAVE TO APPEAL – LANDLORD AND TENANT – LEASES AND TENANCY AGREEMENTS – RESIDENTIAL TENANCIES LEGISLATION – where tenant filed claim for rent decrease pursuant to s 94 of the RTRA Act – where real estate agency filed counterclaim for damages

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – POWERS AND PROCEDURE – where applicant seeks to adduce evidence on appeal which was reasonably available at the time of the original hearing – whether Tribunal should allow fresh evidence

Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 94

APPEARANCES and REPRESENTATION:

 

APPLICANT:

Ms C Starr

RESPONDENT:

Ms C Sutherland, Sutherlands Property Management Group

REASONS FOR DECISION

  1. [1]

    Ms Starr was a tenant of a property owned by Mr Neave and managed by Sutherlands Property Management Group.  The tenancy ended.  Ms Starr brought an application for a rent decrease, pursuant to section 94 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld).  Sutherlands, on behalf of Mr Neave, filed evidence which was, effectively, a counter-claim for damages incurred during the tenancy. 

  2. [2]

    The Tribunal hearing below had some fits and starts.  It was first listed for hearing on the 29th of April 2016.  That was adjourned to the 29th of June 2016.  That was adjourned again to the 3rd of August 2016.  Ms Starr did not appear at the hearing of the 3rd of August 2016.  She sent in an email prior to that saying that she was ill and had been hospitalised and therefore, could not attend.  The Tribunal considered that email as an application to further adjourn the matter. 

  3. [3]

    The application for an adjournment was refused and the matter was heard in Ms Starr’s absence.  The Tribunal dismissed Ms Starr’s claim and ordered that Ms Starr pay Mr Neave $7,766.01 on account of damages.  Ms Starr wants to appeal that decision. 

  4. [4]

    As I have indicated, because it is an appeal from the minor civil disputes jurisdiction of the Tribunal, leave is necessary.  In order to establish that leave should be granted, Ms Starr has to demonstrate two things:  firstly, that there was an error by the Tribunal, and secondly, that the error created a substantial injustice. 

  5. [5]

    Ms Starr’s grounds of appeal are basically twofold:  firstly, that the Tribunal erred in hearing the matter in her absence, and secondly, that the Tribunal erred in its findings of fact.

  6. [6]

    Ms Starr has also mentioned two other things that I’m going to deal with first:  firstly, that she was held in contempt of court.  That appears to have arisen out of enforcement proceedings in the Magistrates Court.  It is not relevant to this Tribunal hearing and therefore, I don’t intend to say anything more about that. 

  7. [7]

    The second is that by reading out the contents of Ms Starr’s email, the Tribunal breached her right to privacy.  The reality is, Ms Starr, that that was a relevant piece of information for the Tribunal to read into the record and Sutherlands were entitled to have that information.  It is part of the Tribunal proceeding and is, therefore, in my view, not a breach of privacy. 

  8. [8]

    Dealing with the mistake of fact error:  findings of fact by the Tribunal will not usually be overturned on appeal if the facts inferred by the Tribunal on which the findings are based are capable of being supported by the evidence.  The appeal Tribunal will only interfere if the conclusions at first instance are contrary to the compelling inferences in the case.  I’m not particularly persuaded that that ground of appeal is established, however, for these purposes, it doesn’t much matter.  And the reason that it doesn’t much matter is because I’m going to grant leave to appeal on your first ground, which is that you didn’t turn up to the hearing and that you impliedly applied for an adjournment, which wasn’t granted.

  9. [9]

    I have considerable sympathy for Sutherlands, because they had appeared a number of times.  And the Tribunal told Sutherlands that if you didn’t appear the next time, the Tribunal would proceed.  The difficulty with that is that Ms Starr didn’t know that that sword of Damocles was hanging over her head.  Had she known, she may have made different arrangements.  So there was, unfortunately, a failure of procedural fairness by the Tribunal in that case and in those circumstances, I am going to grant leave to appeal.  I am going to allow the appeal.  The decision of the 3rd of August is set aside.  Now, the proceeding is going to be returned to the Tribunal, constituted by a different Adjudicator for rehearing.  The proceeding is returned to the Tribunal for rehearing on the basis of the material before the original Tribunal.

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Editorial Notes

  • Published Case Name:

    Catherine Starr v Bruce Neave

  • Shortened Case Name:

    Starr v Neave

  • MNC:

    [2017] QCATA 49

  • Court:

    QCATA

  • Judge(s):

    Senior Member Stilgoe

  • Date:

    11 Apr 2017

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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