Watts v Image Real Estate[2022] QCATA 29

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The appellant (‘Ms Watts’) was tenant of residential premises in Brisbane and the respondent was the lessor’s real estate agent.
2. [2]
   Despite the existence of a fixed term tenancy agreement ending September 2020, the parties fell out and there was no objection by the lessor to Ms Watts (and her husband) ending the tenancy early.
3. [3]
   The agents brought proceedings in the Tribunal however on behalf of the lessor seeking compensation for various things including water charges and cleaning costs.
4. [4]
   The registry served a copy of the application on Ms Watts and a separate copy on her husband, who was also a tenant, by email addressed to their respective email addresses. This was because the agent noted on the application that the tenants had not supplied a forwarding address and her address was unknown to them. The registry also served under cover of the same email notice of hearing on the tenants giving time and date of the hearing at Pine Rivers Magistrates Court.
5. [5]
   The matter came on for hearing before an Adjudicator on the notified date and time but there was no appearance by the tenants.
6. [6]
   Ms Watts was telephoned from the hearing room and Ms Watts claimed she knew nothing of the hearing or the claim brought against her (and her husband) by the respondent. The Adjudicator stood the matter down for approximately one hour to allow Ms Watts time to prepare and then proceeded with the hearing with Ms Watts attending by telephone.
7. [7]
   The Adjudicator found Ms Watts and her husband were liable to pay the amount of $860.52 compensation to the lessor and ordered accordingly.
8. [8]
   Ms Watts wants to appeal that decision.
9. [9]
   Given this is an appeal from a decision made in the Tribunal’s minor civil dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.^[1] 
10. [10]
    Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.^[2] 
11. [11]
    There is only one ground of appeal in the application for leave to appeal, namely, that Ms Watts was not accorded natural justice because she never received the application or notice of hearing and knew nothing of the matter until she was telephoned on the day of hearing.
12. [12]
    Ms Watts says the respondent had her forwarding address and avoided advising the Tribunal of it to bypass service of the application on her.
13. [13]
    The respondent stated in the initiating application that the tenants’ forwarding address after they left the residential premises was unknown, but they gave Ms Watts email address to the Tribunal. The registry forwarded both a copy of the initiating application with all the documents attached and the notice of hearing to the email address.
14. [14]
    The email address used was the same as the address noted on emails forwarded by Ms Watts to the respondent during the currency of the tenancy. It was also the address for Ms Watts held by the Residential Tenancy Authority in respect of the bond.
15. [15]
    In any case, at the hearing before the Adjudicator Ms Watts confirmed the email address to which the material was sent was correct.
16. [16]
    She offered no explanation why the material forwarded to that address was not received. She simply claimed she had not received it.
17. [17]
    At the hearing the Adjudicator told her the email address was used to serve her because she had not provided a forwarding postal address. To that she said nothing. She certainly didn’t say the agents knew her forwarding address. That seems to have been raised for the first time in her application for leave to appeal.
18. [18]
    Indeed at the hearing Ms Watts told the Adjudicator that she was prepared to tell the registry her postal address, but she refused to give it to the respondent. She said she had blocked the respondent on her email as well.
19. [19]
    The Adjudicator advised Ms Watts that she considered Ms Watts appropriately served but she stood the matter down for approximately one hour to allow Ms Watts to collect material and then the Adjudicator resumed the hearing.
20. [20]
    There was no reasonable explanation offered the Adjudicator at the hearing why Ms Watts did not appear, ready to proceed. There is no reasonable explanation for that in her application for leave to appeal either.
21. [21]
    The most generous explanation why Ms Watts did not appear at the hearing is that she was careless looking to her own affairs.
22. [22]
    That seems borne out in her attempt to file fresh evidence in the appeal without leave in the face of clear directions that if she wished to do that she had to apply for the leave of the Tribunal first. A direction to that effect was made in initial directions on 8 October 2020, then confirmed in directions made on 11 November 2020, then on 16 December 2020 and finally on 22 February 2021 when the direction was expanded to say:

Direction 7 of the Appeal Tribunal directions dated 8 October 2020 is confirmed. If the applicant seeks to rely on the material filed on 9 February 2021, this direction must be complied with in order for the Appeal Tribunal to give consideration to those documents.

23. [23]
    Ms Watt has ignored those directions, as she ignored the notice of hearing below. She has filed fresh evidence but without seeking leave to do so in this appeal. She is not granted leave to rely on fresh evidence.
24. [24]
    As explained by Member Dr Forbes in Arowana Pty Ltd t/a Choice IT Australia v Scott [2019] QCATA 100:

[19] The statutory right to an opportunity to be heard is adequately observed from the law's point of view by notice of the correct time and place of hearing.13 Forgetting, for example, is not an acceptable explanation.  Finality in litigation, particularly in the minor civil dispute jurisdiction, is important to conserve the resources of the taxpayer and the Tribunal, and to ensure that other litigants are not unduly delayed.  The responsibility of litigants in QCAT to attend to their own interests is emphasised by a former President of the Tribunal:

The QCAT statutory regime itself places obligations upon parties to take care in dealings with tribunal matters ... The legislation, and the demands upon public resources which fund QCAT, necessarily impose an expectation and an obligation upon a party that it acts in its own best interests, or accept the consequences.[3]

25. [25]
    The Adjudicator would have been entitled to proceed in Ms Watts absence, but instead took the additional step of contacting her by telephone. She then allowed her time to prepare for the hearing. The issues in dispute were thereafter explored and Ms Watts was given opportunity to present her case. It was Ms Watt’s failure to look after her own interests to blame if she feels she did not present the best case possible below.
26. [26]
    There was no error made by the Adjudicator in proceeding with the hearing in the way she did. There was no failure to accord Ms Watts natural justice.
27. [27]
    Leave to appeal is refused.