Exit Distraction Free Reading Mode
- Unreported Judgment
Mackay Real Estate v Morris QCATA 178
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Mackay Real Estate v Morris  QCATA 178
Mackay Real Estate
ORIGINATING APPLICATION NO/S:
4 December 2018
On the papers
Justice Daubney, President
APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES INVOLVING MISCARRIAGE – UNSATISFACTORY NATURE OF TRIAL – where initial decision was made in the absence of the applicant – where applicant thought the matter had settled prior to initial hearing
Queensland Civil and Administrative Tribunal Act 2009, s 138, s 139, s 140, s 142, s 143a, sch 3
Cameron v Cole (1994) 68 CLR 571
Grimshaw v Dunbar (1953) 1 QB 408
Taylor v Taylor (1979) 143 CLR 1
W R Carpenter Australia Ltd v Ogle  2 Qd R 327
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
- The respondent was the tenant of a residential property in Mackay. The present applicant was the real estate agency responsible for that property.
- On 9 January 2017, the respondent noticed that the air conditioner in the property seemed to be broken He notified the applicant of that issue. The applicant asked the respondent to lodge a work request on the applicant’s website The respondent did this on 15 January 2017.
- The respondent then emailed the applicant on 18 January 2017 asking for a reduction in rent for the period he did not have air conditioning. That request was refused by the applicant, who advised that the respondent would need to seek a court order for any rent reduction.
- An air conditioning technician attended at the property on 19 January 2017, and advised the respondent that the technician could not complete any works without permission to incur charges.
- On 31 January 2017, the applicant received advice from the technician that the air conditioner was still under warranty and a work request would need to be lodged with the manufacturer. The applicant says that it asked the respondent for the air conditioner serial number to give to the manufacturer, but the respondent disputes that such a request was ever made. In any event, the applicant provided no evidence of having made such a request.
- On 27 February 2017, the respondent emailed a notice to remedy breach to the applicant. The applicant responded to that notice, summarising how it had dealt with the issue to date, the end result being that it was waiting on the manufacturer to advise when it could attend.
- As at 8 March 2017, the air conditioner remained out of order. The respondent then filed a dispute resolution request with the Residential Tenancies Authority in accordance with the relevant provisions of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (“RTRAA”). Notification was given on 27 March 2017 that the dispute resolution process under the RTRAA had been unsuccessful.
- On 10 April 2017, the respondent filed a minor civil dispute application seeking a reduction of $234 per week in rent. The full rent he was paying was $260 per week.
- The hearing of the minor civil dispute came on before an acting magistrate at Mackay on 24 April 2017. There was no appearance at the hearing by the applicant. The hearing before the acting magistrate was brief, and the acting magistrate made a decision that the respondent be refunded 50 per cent of the rent paid for a period of 15 weeks from 9 January 2017 to 24 April 2017. The acting magistrate gave brief ex tempore reasons for that decision.
- The applicant then filed the present application for leave to appeal or appeal against the decision of the acting magistrate. The applicant also filed an application for a stay of the acting magistrate’s decision. That stay application was refused by Carmody J on 8 June 2017.
- As the decision by the acting magistrate was in a proceeding for a minor civil dispute, an appeal may be pursued only with leave.
- In the submissions filed in support of the application for leave to appeal or appeal, two grounds of appeal by the applicant emerged:
- (a)That the quantum of rent reduction allowed by the acting magistrate was excessive, and
- (b)The acting magistrate’s decision was made in the absence of the applicant, and the decision would have been different if the applicant had had the opportunity to be heard at the hearing.
- In relation to the second matter, the applicant’s principal says that the applicant did not attend the hearing before the acting magistrate because the applicant believed that an agreement (i.e. a settlement) had already been reached with the respondent concerning a reduction of rent and that the case had thereby been finalised. It is said that the applicant’s principal sent a text to the respondent in relation to this on the morning of the hearing, and received no response. The principal was in a meeting with the Office of Fair Trading at the time of the hearing before the acting magistrate, and was unable to attend the tribunal hearing.
- The respondent says that the applicant had been properly notified about the tribunal hearing and that there was “no ground to believe that there was an agreement with the tenant on the rent reduction”.
- The respondent does not deny having received the text message from the applicant’s principal on the morning of 24 April, but contends that sending a text did not relieve the applicant from participating in the hearing “especially when no response is received”.
- Clearly enough, there is a dispute between the parties as to whether a settlement agreement had been reached between them prior to the hearing before the acting magistrate. The respondent disputes that there was such an agreement, but this is not to the point. The point is that, on the applicant’s material, the applicant’s principal believed that there was such a settlement which obviated the need for the applicant to attend at the hearing before the acting magistrate. If accepted, this could constitute an acceptable explanation for the applicant’s non-appearance before the acting magistrate.
It is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case.
Be that as it may, a party to an action is prima facie entitled to have it heard in his presence; he is entitled to dispute his opponent’s case and cross-examine his opponent’s witnesses and he is entitled to call his own witnesses and give his own evidence before the court Prima facie that is his right, and if by some mischance or accident a party is shut out from that right and an order is made in his absence, then common justice demands, so far as it can be given effect to without injustice to other parties, that that litigant who is accidently absent should be allowed to come to the court and present his case – no doubt on suitable terms as to costs …
- These propositions were referred to and applied in W R Carpenter Australia Ltd v Ogle, in which the Court of Appeal confirmed that the Supreme Court has an inherent jurisdiction to set aside a foreclosure order in circumstances where it is satisfied that the mortgagor’s non-appearance when the order was made was not due to any fault on his part. The Court also applied the judgment of the High Court in Taylor v Taylor in confirming the availability of such an inherent jurisdiction in circumstances where a party is not present at a hearing through no fault of that party.
- In the present case, the applicant expressly raises the argument that its absence at the hearing before the acting magistrate was as a consequence of a misunderstanding arising from its perception that a settlement agreement had been reached. In that circumstance, the question is whether this matter should be referred back to the tribunal to decide whether the proceeding should be reopened.
- Section 143A of the QCAT Act provides:
143AReferring matter to tribunal to consider reopening
- (1)This section applies if –
- (a)an application or appeal is filed under section 143; and
- (b)the appeal tribunal considers –
- (i)the reasons for the application or appeal may constitute a reopening ground for the applicant or appellant in the proceeding to which the application or appeal relates; and
- (ii)the application or appeal could be more effectively or conveniently dealt with if it were taken to be an application under part 7, division 7 for a proceeding to be reopened.
- (2)The appeal tribunal may refer the matter to the tribunal to decide whether the proceeding should be reopened.
- (3)If the appeal tribunal refers the matter –
- (a)the applicant or appellant is taken –
- (i)to have made an application for the proceeding to be reopened under section 138; and
- (ii)not to have made an application or appeal under section 143; and
- (b)the appeal tribunal must give notice of the referral to –
- (i)each party to the proceeding; and
- (ii)any other person the tribunal reasonably considers should be given notice of the referral.
- Reopening is expressly provided for under s 138 of the QCAT Act:
138 Application to reopen
- (1)A party to a proceeding may apply to the tribunal for the proceeding to be reopened if the party considers a reopening ground exists for the party.
- (2)The application must –
- (a)state the reopening ground on which it is made; and
- (b)be made within the period and in the way stated in the rules; and
- (c)be accompanied by the prescribed fee (if any).
- (3)The party must give a copy of the application to –
- (a)each other party to the proceeding; and
- (b)each other person to whom the notice of the application is required to be given under an enabling Act or the rules; and
- (c)any person the tribunal directs to be given notice of the application.
- (4)Subsection (3) does not require the party to give a copy of the application to a person if the principal registrar has given or undertaken to give a copy of the application to the person.
- (5)A party can not make an application under this section in relation to a decision the subject of an appeal, or an application for leave to appeal, under part 8.
- (6)Subsection (5) applies whether or not the appeal or application has been decided.
- The term “reopening ground” is defined in the QCAT Act, Schedule 3, to include that “the party did not appear at the hearing of the proceeding and had a reasonable excuse for not attending the hearing”.
- Clearly enough, the argument sought to be advanced by the applicant is that it had a reasonable excuse for not attending the hearing, namely its understanding that a settlement agreement had been reached and the need for an appearance had been obviated.
- For the purposes of s 143A(1)(b), I am satisfied that the reasons identified by the applicant in the present application for its non-attendance at the hearing before the acting magistrate may constitute a “reopening ground” (as that term is defined). It is also, in my view, clearly more convenient for the question of the reopening to be dealt with before the original tribunal. In that regard the original tribunal will be better placed to follow the processes provided for by ss 138 and 139 of the QCAT Act and, if a determination to reopen is made, proceed to decide the matter on the basis of the reopening in accordance with s 140.
- Given my view of the need for this matter to be referred back to the tribunal for consideration of a reopening, it is undesirable for me to embark on a review of the applicant’s other ground of appeal. If the tribunal orders the matter reopened and embarks on a further hearing into the substance of the matter, that will (or should) include the applicant’s arguments about the appropriate quantum of any rent reduction which are the subject of the first proposed ground of appeal.
- Accordingly, the decision of the Appeal Tribunal is:
- That the matter be referred to the tribunal for decision as to whether the proceeding should be reopened; and
- Notice of this referral must be given to each party to the proceeding.
- Published Case Name:
Mackay Real Estate v Rodney Morris
- Shortened Case Name:
Mackay Real Estate v Morris
 QCATA 178
04 Dec 2018