Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Reihana v Beenleigh Show Society[2019] QCATA 91

Reihana v Beenleigh Show Society[2019] QCATA 91

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Reihana v Beenleigh Show Society [2019] QCATA 91

PARTIES:

TONI REIHANA

(applicant)

v

BEENLEIGH SHOW SOCIETY

(respondent)

APPLICATION NO:

APL043-18

ORIGINATING APPLICATION NO/S:

MCDT749 -13 Brisbane

MATTER TYPE:

Appeals

DELIVERED ON:

14 June 2019

HEARING DATE:

6 June 2019

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes, Member

ORDERS:

The application for leave to appeal is dismissed.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where eviction order made – where party not in attendance at hearing – where adjournment refused – whether due process followed -– whether applicant took due care of his interests - where application to reopen made – where reopening application out of time – where extension of time for reopening application refused – where reopening application converted to application for leave to appeal – where time for seeking leave to appeal extended – where applicant appellant did not attend hearing of application for leave to appeal - where no satisfactory reason for absence established – where leave to appeal refused

Acts Interpretation Act 1954 (Qld) ss 39, 39A

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 61, 93, 138, 143

Queensland Civil and Administrative Tribunal Rules 2009 Reg 92

Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 32, 61, 277, 291, 293

Aon  Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Beenleigh Show Society v Reihana 25 February 2013

Beenleigh Show Society v Reihana [2018] QCAT 97 at [58].

Brettingham-Moore v Municipality of St Leonards (1969) 121 CLR 509

Campbell v Flucker [2010] QCATA 70

Carroll v Sydney City Council (1989) 15 NSWLR 541

Cook v ASP Ship Management Pty Ltd (2008) 105 ALD 453

Herrington  v McHugh [2011] QCATA 288

Hunter Valley Developments v Cohen (1984) 3 FCR 344

John v Rees [1970] Ch 345

Lawless v The Queen (1979) 142 CLR 659

Pappas v Meikeljohn’s Accountants [2017] QCATA 60

Minister for Immigration and Multicultural Affairs v Capitly (1999) 33 ALD 365

R v Brewer; Ex parte Renzella [1973] VR 375

R v Sharkey [2013] QCA 259

Reeve v Hamlyn [2015] QCATA 133

Reihana v QCAT Services Managers & Ors [2017] QCA 117

Sali v SPC Limited (1993) 67 ALJR 841

South Australia v O'Shea (1987) 163 CLR 378

Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246

The Pot Man Pty Ltd v Reaoch [2011] QCATA 318

University of Ceylon v Fernando [1960] 1 WLR 223

Uren v Harcourts Broadbeach Waters [2018] QCATA 9

APPEARANCES & REPRESENTATION:

APPLICANT:     The applicant did not appear.

RESPONDENT:  Mr T Serafin of McCarthy Durie.

REASONS FOR DECISION

  1. [1]
    Of all Minor Civil Disputes in dire need of finality, this is one. Piles of paper, delays, obfuscation and tortuous procedural issues have been heaped upon on a claim of natural justice. Two applications to the Court of Appeal, and one to the High Court have been unsuccessful. According to the Respondent, the Beenleigh Show Society (`the Society’) these complications have burdened it with costs in excess of $60,000.[1] When the Society became party to this case it could not have foreseen the Everest of forensic superstructure that would be piled upon it.
  2. [2]
    Interlocutory appeals made in 2015 have already received attention. The dismissal of a reopening application (as out of time) was reversed, and fresh evidence (material overlooked) was admitted. Subsequently the reopening application was rebadged as the present application for leave to appeal. An appeal against an order for a hearing on the papers was set aside and an oral hearing granted.

Essentially a tenancy dispute

  1. [3]
    The substantive dispute concerns the Applicant’s sometime tenancy of a caravan site in the grounds of the Society, a site obliterated some six years ago by a roadmaking project of the Logan City Council.
  2. [4]
    In September 2012 the Society, on the cusp of compulsory acquisition, asked the residents of its caravan park to move. Most agreed, but the Applicant did not.
  3. [5]
    On 3 January 2013 the Society served a notice to leave[2] upon the Applicant, requiring him to move by 4 March 2013. (The Society regarded the matter as urgent; accordingly it gave the minimum period of notice.) Initially the Applicant did not contest the notice to leave[3] or the Society’s subsequent application.[4] But he declined to vacate the site.

Eviction application 2013

  1. [6]
    On 18 March 2013 the Society applied to the Tribunal[5] to terminate the Applicant’s tenancy.
  2. [7]
    On 25 March 2013 the Tribunal posted a Notice of Hearing to the parties. While the Applicant maintains that he was unaware of such service, he does not deny that the  notice of the trial date was posted to him at that time. A relative located the notice among his effects shortly before the trial, and sought an adjournment on his behalf.[6]

By virtue of the Acts Interpretation Act 1954 (Qld) service of the notice of hearing is deemed to have been effected at the time when the letter containing it would be delivered in the ordinary course of post, unless the contrary is proved.[7] No such proof has been adduced.

Present applicant absent from hearing

  1. [8]
    The Society’s application for eviction was heard, as scheduled, on 16 April 2013. The Applicant did not appear. The Adjudicator entered judgment for the Society and ordered a warrant for possession to issue.

Reopening Application 2015

  1. [9]
    The Applicant then did nothing to challenge the eviction order for more than two years. It was not until 21 September 2015 that the Applicant filed an application for reopening of the 2013 proceedings. That application, of course, was grossly out of time.[8] At first instance it was dismissed, but was restored to the list when submissions were not received by the primary decision maker.
  2. [10]
    It was then decided to treat the revived reopening application as an application for leave to appeal.[9] But thus transmuted, that application, too, was egregiously out of time.[10] That difficulty was overcome by a generous extension,[11] although the learned member who granted it `[did] not regard Mr Reihana’s explanation for the delay as satisfactory’.[12] 
  3. [11]
    That indulgence, not obviously appreciated by the Applicant, has been denied to litigants responsible for significantly shorter lapses of time.[13]

Substantive appeal – the grounds

  1. [12]
    The renovated application for leave to appeal alleges that the proceedings on 16 April 2013 were contrary to natural justice:

In connection and [sic] a determination of T749/13 [I ask that] the final decision to terminate my tenancy be renewed [sic]. The decision ... is faulty when considering the breadth of natural justice issues, and only one side of story heard by tribunal.

Non-appearance at hearing – adjournment granted

  1. [13]
    The Applicant demanded an oral hearing of the leave application, and one was arranged, weeks in advance, for 29 March 2019.
  2. [14]
    However, shortly before that date, the Applicant, in a virtual fait accompli, informed the registry that he would not be attending on 29 March, because he was in New Zealand again, visiting an ailing relative.
  3. [15]
    No affidavit, medical evidence or other material was filed in support of these claims. Nevertheless, solely for the convenience of the Applicant, the matter was adjourned for final hearing on 6 June 2019.

Adjourned hearing to be further adjourned?

  1. [16]
    Just two days before 6 June the Applicant sought yet another adjournment, on the ground that he had just obtained copies of unspecified documents from the Tribunal’s files. Despite his considerable experience of Tribunal procedures, the Applicant apparently believes, or purports to believe, that a mere demand secures an adjournment: `QCAT must VACATE the appeal hearing’.[14] But trial dates are set by the Tribunal, not by the fiat of a party. The Tribunal cannot be paralysed simply by an application for an adjournment. The allowance or refusal of such requests or demands is in the discretion of the Tribunal.
  2. [17]
    The onus was then upon him to appear in person at the time set for the hearing, and then and there to make his case for an adjournment. He had insisted upon an oral hearing, and this time he was in or near Brisbane. But paradoxically, while the Applicant nurses a powerful sense of grievance, he repeatedly postpones a resolution.
  3. [18]
    In order to ensure the Applicant’s personal appearance, the Tribunal gave him a Direction to do so – a step that he was already obliged to take. The Direction included a standard term, warning that failure to comply could result in termination of the case without further notice.

Non-compliance with direction

  1. [19]
    The Applicant’s only response was an incoherent, scurrilous and contemptuous message to the effect that he would not attend.[15] I shall not dignify that communication by quotation. Nor shall I particularise the Applicant’s several, similarly abusive messages to various members of the Tribunal and its administrative staff.[16] Anything but immediate and complete concurrence risks being met with vituperation. The abusive items sit upon the files for perusal if required. They are graphic evidence of the Applicant’s attitude to the Tribunal, which may be described, in an excess of charity and delicacy, as cavalier.
  2. [20]
    The Applicant absented himself from the hearing on 6 June 2019, when the Respondent’s submissions were heard. If the Applicant had deigned to attend he may have been able to (a) identify the documents vaguely referred to in his adjournment application, mentioned; (b) demonstrate their relevance, if any to the natural justice issue, and (c) subject to satisfactory answers to (a) and (b), show that the documents, for whatever they may be worth, were not reasonably available earlier in the proceedings.[17] But he rejected the opportunity to do so.

Should leave to appeal the primary decision be granted?

  1. [21]
    The substantive appeal does not involve initiating process that is said to have gone astray. By April 2013 the Applicant was well aware that QCAT proceedings were in train. He admitted receipt of the notice to leave.[18] He was duly served with the Society’s initial application. He attended an interim hearing on 25 February 2013.[19] At that time the Society’s solicitor warned the Applicant that her client’s time for filing an eviction case was strictly limited.[20] In January 2018 the learned Member, who gave his complaints every consideration, observed:

In the light of everything going on at the time, Mr Reihana’s decision to absent himself from the country [from 7 March to 18 May 2013] and go out of contact at such a crucial time ... can only be described as a high risk policy.[21]

  1. [22]
    On the eve of the trial a third party informed the Tribunal that the Applicant was in New Zealand to visit a relative who was ill. This eleventh-hour communication sought an adjournment `until after 25 May’. It was not supported by medical or other independent evidence, then or later.
  2. [23]
    The Society did not consent. The Adjudicator declined to adjourn, observing:

[If an adjournment were granted] it appears that the application [would] be put off for at least a month and a half. It is an urgent application. I do not consider that to be procedurally fair to the applicant. If Mr Reihana sees fit to ... absent himself ... from the caravan site and remain uncontactable for [a] lengthy period of time that is his lookout. A balance must be struck here between the [Show Society] applicant and [Reihana]. There is a balance of fairness. I consider it entirely unfair that the [Show Society] ought to be put in a position of having to wait until after 25th May for Mr Reihana to return. In those circumstances I think it is procedurally fair for the warrant to issue.

  1. [24]
    A mere assertion that an illness is involved need not be accepted at face value. Better evidence may be required.[22] An order for costs would have been a doubtful remedy. The Applicant is markedly non-compliant with orders of the Tribunal, and has enjoyed compassionate remission of tribunal fees on financial grounds[23], notwithstanding several visits to New Zealand during this protracted dispute.
  2. [25]
    There is no error in the Adjudicator’s consideration of fairness to the Society.[24] Justice, after all, is a two way street. Also relevant is the public interest in efficient use of taxpayer-funded resources, and the interests of other litigants waiting in turn.[25]
  3. [26]
    Adjournments are not automatically secured by an eleventh-hour, unilateral demand, as the Applicant seems to assume. They are in the court’s discretion[26], and a party seeking one may reasonably be expected to appear and to present a case for adjournment.
  4. [27]
    The Applicant’s lengthy absence from the jurisdiction was indeed a high risk policy; as a forensic cavalier he simply took the chance that if the minor dispute were called on for hearing while he was away, could send a messenger to secure an adjournment for the asking.
  5. [28]
    The Applicant claims that he was `in the wilderness’ and incommunicado when the hearing date was pending.[27] He also says that he went to New Zealand because a relative was in hospital there.[28] But hospitals are not commonly situated in the wilderness, even in New Zealand. On 15 March 2013, in an otherwise aggressive and threatening letter to the Society’s solicitor, the Applicant began: “Hello from sunny Christchurch”. Clearly that was not a voice of one crying in the wilderness, but a missive from email facilities in Christchurch. That fair city has borne sad misfortunes in recent years, but in 2013 it was not, so far as I am aware, deprived of internet and telephone contact with Australia – facilities that might have been used to keep the Applicant informed of the progress of his case, or even to seek leave to appear before the Tribunal by phone.

Litigants’ responsibilities

  1. [29]
    This case resembles Campbell v Flucker[29], a decision of Alan Wilson J, then President of this Tribunal. The appellants in that case challenged ex parte orders made when they failed to appear at the trial. In refusing leave to appeal the judicial Member observed:

[T]he Campbells apparently elected to leave their mail unattended to at a time after they had commenced proceedings. They did not, it appears, take any steps to address the contingency that things might happen in the proceeding in their absence – e.g.by having someone else monitor their mail and report to them on its contents. The Tribunal has a statutory obligation to act speedily. The Campbells would have had the opportunity to be heard if they had acted in their own interests. [They] have not produced evidence ... that a different decision might have been made if they had acted in their own interests.

  1. [30]
    His Honour’s final sentence, in particular, seems apposite here.
  2. [31]
    If any arrangements to monitor mail were made in the present case they were plainly inadequate. There is no evidence of any arrangement by the Applicant with his relative to maintain regular and frequent monitoring, and for much of the time he was away, the Applicant, for whatever reason, was not – so far as the evidence goes - in regular contact with that person. For all that is known, the relative’s discovery of the notice of trial may have been a chance, one-off occurrence.
  3. [32]
    Again, in The Pot Man Pty Ltd v Reaoch[30] the then President stated:

QCAT has a statutory obligation to deal with matters in ways that are accessible, economical and quick ... The Minor Civil Disputes jurisdiction, in particular, is one in which the Tribunal has a broad jurisdiction to make orders that it considers fair and equitable ... It is common knowledge that the jurisdiction is a busy and demanding one, in which parties are expected to present their own cases, and act in their own interests ... The legislation, and the demands upon public resources which fund QCAT necessarily impose an expectation and an obligation upon a party that it will ensure that it acts in its own best interests, or accept the consequences.

  1. [33]
    And in his Pot Man decision, Wilson J reminded parties that their own cases are not the centre of the legal universe; the Tribunal’s time and resources are limited, and there are other interests involved; there are others in the queue[31]:

QCAT’s resources ... serve, as the High Court has recently observed, the public as a whole and not merely the parties to proceedings (Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 217).[32] The QCAT statutory regime itself [laces obligations upon parties to take care in their dealings with the Tribunal and to act in their own best interests.

  1. [34]
    Another judicial Member has stressed that strict observance of time limits – and hearing dates  - `is ... consistent with the public interest in finality of litigation’.[33]

Opportunity to be heard may be foregone

  1. [35]
    The `right to a hearing’ is really shorthand for the right to an opportunity to be heard.[34] The right can be waived or forfeited[35], and that was the effect of the Applicant’s casual approach to the obligations emphasised in Pappas (above). In such a case the fact that a party was not heard is no breach of natural justice.

Resolution

  1. [36]
    I am satisfied that in the circumstances of this protracted case, including the Applicant’s dealings with the Tribunal, the Adjudicator was entitled to take the course that he did. This hitherto interminable proceeding craves finality. The application for leave to appeal should be refused.

ORDER

The application for leave to appeal is dismissed.

Footnotes

[1]  Submissions of the Respondent 6 June 2019 paragraph 30(a).

[2]Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA) s 291.

[3]Beenleigh Show Society v Reihana [2018] QCAT 97 at [58].

[4]Reihana v QCAT Services Managers & Ors [2017] QCA 117 at [7].

[5]  RTRA ss 277(5)(a), 293.

[6]  As noted by the Adjudicator on 16 April 2013.

[7]Acts Interpretation Act 1954 (Qld) ss 39(1)(a)(ii), 39A(1)(b).

[8]  See QCAT Act s 138(2)(b), Queensland Civil and Administrative Tribunal Rules 2009 Reg 92(b).

[9]Beenleigh Show Society v Reihana [2018] QCAT 97 at [114].

[10]  QCAT Act s 143(3).

[11]  QCAT Act s 61.

[12]Beenleigh Show Society v Reihana [2018] QCAT 97 at [47]

[13]  Examples of applications rejected: Pappas v Meikeljohn’s Accountants [2017] QCATA 60 (4 months late);

Reeve v Hamlyn [2015] QCATA 133 (4 months); Uren v Harcourts Broadbeach Waters [2018] QCATA 9 (1 month late); Herrington  v McHugh [2011] QCATA 288 (9 months).

[14]  Application for adjournment filed 4 June 2019, emphasis in original.

[15]  Email Applicant to Tribunal 5 June 2019.

[16]  E.g. to a judicial member 3, 25 and 27 November 2017; submissions for reopening application 18 November 2017 4th paragraph; to Tribunal staff 5 July 2018; to solicitor for Respondent 15 March 2013; Applicant to Tribunal (Operation Support Manager) 26 December 2015.

[17]  On `fresh’, as distinct from `new’ evidence see Lawless v The Queen (1979) 142 CLR 659 at 674-676;  R v Sharkey [2013] QCA259 at [8].

[18]  Email Applicant to Respondent’s solicitor 15 March 2013.

[19]Beenleigh Show Society v Reihana [2018] QCAT 97 at [73].

[20]Beenleigh Show Society v Reihana 25 February 2013 (Davern, Adjudicator) page 23.

[21]Beenleigh Show Society v Reihana [2018] QCAT 97 at [27].

[22]Minister for Immigration and Multicultural Affairs v Capitly (1999) 33 ALD 365 at 372; Cook v ASP Ship Management Pty Ltd (2008) 105 ALD 453; [2008] FCA 1345.

[23]  Applicant  to APN Manager 1 November 2013.

[24]Hunter Valley Developments v Cohen (1984) 3 FCR 344 at 348-349.

[25]Aon  Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 217; Sali v SPC Limited (1993) 67 ALJR 841 at 843-844.

[26]Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246 at 252.

[27]  Submissions  of Applicant 18 November 2017 page 3.

[28]  Applicant quoted in Beenleigh Show Society v Reihana [2018] QCAT 97 at [22]; Beenleigh Show Society v Reihana 25 February 2013 (Davern, Adjudicator) page 22 line 12.

[29]  [2010] QCATA 70 at [[11] – [14].

[30]  [2011] QCATA 318 at [8] and [10] (emphasis added).

[31]  Not least when late adjournments are repeatedly sought.

[32]  See further Sali v SPC Limited (1993) 67 ALJR 841 at 843-844.

[33]Pappas v Meiklejohn’s Accountants [2017] QCATA 60 at [10] (Thomas QC).

[34]South Australia v O'Shea (1987) 163 CLR 378 at [19]; University of Ceylon v Fernando [1960] 1 WLR 223 at 232; R v Brewer; Ex parte Renzella [1973] VR 375 at 378-379; John v Rees [1970] Ch 345 at 402; Carroll v Sydney City Council (1989) 15 NSWLR 541 at 549;  Brettingham-Moore v Municipality of St Leonards (1969) 121 CLR 509 at 524.

[35]  As recognised in the QCA T Act s 93.

Close

Editorial Notes

  • Published Case Name:

    Reihana v Beenleigh Show Society

  • Shortened Case Name:

    Reihana v Beenleigh Show Society

  • MNC:

    [2019] QCATA 91

  • Court:

    QCATA

  • Judge(s):

    Member Forbes

  • Date:

    14 Jun 2019

Appeal Status

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

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.