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Rogan v Kay QCATA 113
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Rogan and Riley v Kay and Kay  QCATA 113
ORIGINATING APPLICATION NO/S:
29 July 2019
On the papers
Leave to appeal against the decision made on 11 June 2015 in MCDT1274/15 (Brisbane) is refused. The appeal therefore fails.
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN NO APPEAL LIES – leave to appeal – where appellant sought leave to appeal against the tribunal’s decision about the rental bond and additional compensation sought by the lessors – whether any reasonably arguable grounds of appeal
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
- This is an appeal from a decision of Justices of the Peace who heard a residential tenancy matter. Sandra Kay and Michael Kay were lessors of a rental property and Dianne Rogan and Kevin Riley were their tenants.
- When the tenancy came to an end the lessors sought compensation from the tenants by claiming the rental bond and further monies. The lessors applied to the tribunal for this to be determined. The application was brought on 18 May 2015. At a hearing on 11 June 2015, the Justices of the Peace decided that the lessors were entitled to $940.64 and that this should come from the rental bond, with the remaining amount of the bond going to the tenant.
- This appeal was filed with the tribunal on 7 July 2015. Some explanation needs to be given why it has taken so long to be resolved by the Appeal Tribunal. On 9 July 2015 the Appeal Tribunal ordered the tenants to make submissions ‘detailing the alleged error/s of fact and/or law made by the original decision maker’ and any further submissions relied on. The date by which those submissions had to be filed was originally 10 August 2015, but this was extended by the tribunal’s order of 9 October 2015 to 16 October 2015.
- The tribunal’s order of 9 October 2015 which extended time for the tenant’s submissions also stated:-
If (the tenants do) not comply with the above direction, the application for leave to appeal or appeal is dismissed without further order.
- On 23 September 2015 the tenants filed two affidavits in the tribunal. These gave evidence about the original subject matter of their dispute with the lessors, but did not explain in what way the Justices of the Peace had been in error in their decision. When the date by which the submissions were required passed, the tribunal’s record was marked to indicate that the application for leave to appeal or appeal was finalised due to non-compliance.
- Nearly three years later, on 21 June 2018 the tenants asked the tribunal what was happening with their appeal. Then an order of the tribunal made on 6 July 2018 noted that submissions were indeed filed on 23 September 2015 and stated that the submissions were in accordance with the directions made on 9 July 2015, and declared that the application for leave to appeal or appeal was not in fact dismissed.
- In this appeal, there is still no explanation from the tenants about where the Justices of the Peace were in error. The application for leave to appeal or appeal asks for a ‘reassessment of the evidence and return of our money (bond)’. The tenants attached a large number of photographs to the application for leave to appeal or appeal and said in that document that they have ‘another 350 photos of the day we moved in if further proof is required’, and they submitted affidavit evidence on 23 September 2015.
- The new material given to the Appeal Tribunal cannot be considered without leave of the Appeal Tribunal. On 6 July 2018 the Appeal Tribunal directed that any application for fresh evidence to be considered by the Appeal Tribunal would require an application in the form specified in the order. Such an application has not been made by the tenants.
- Hence the Appeal Tribunal cannot consider the new material.
- The Appeal Tribunal did, however, obtain a transcript of the hearing on 11 June 2015. For copyright and costs reasons this cannot be provided to the parties. But from the transcript it can be seen that hearing lasted 1½ hours and the Justices of the Peace heard from all the parties and read a number of documents and reached a conclusion after consulting with each other. Finally they delivered a reasoned decision.
- There is nothing on the face of the order made by the Justices of the Peace or in their reasons, or in the way they conducted the hearing, which suggests they made any error. And there is nothing in the material submitted by the tenants which explains the basis on which it is said they made an error. Instead it would appear that the tenants simply want the matter reheard. However, an appeal is not an opportunity to ask for a rehearing in the absence of any error shown by the original decision maker. In the circumstances, leave to appeal (which is required in appeals of this sort) is refused. This means that this appeal fails.
- Published Case Name:
Dianne Rogan & Anor v Sandra Kay & Anor
- Shortened Case Name:
Rogan v Kay
 QCATA 113
29 Jul 2019