KDA v Rong He as trustee & Anor
[2023] QCATA 5
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- KDA v Rong He as trustee & Anor[2023] QCATA 5
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KDA v Rong He as trustee & Anor[2023] QCATA 5
KDA v Rong He as trustee & Anor[2023] QCATA 5
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | KDA v Rong He as trustee & Anor [2023] QCATA 5 |
PARTIES: | kda (appellant) v rong he as trustee for ning family trust and michael wheatley (respondent) |
APPLICATION NO/S: | APL114-21 and APL115-21 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 25 January 2023 |
HEARING DATE: | 15 December 2022 |
HEARD AT: | Brisbane |
DECISION OF: | Member Richard Oliver |
ORDERS: |
IT IS DIRECTED THAT:
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – PROCEDURAL FAIRNESS – RESIDENTIAL TENANCY – where applicant filed applications claiming compensation and rent relief – where applications listed for final hearing – where applicant served a quantity of material on the respondent the evening before the hearing – where applicant failed to attend the commencement of the hearing but subsequently appeared – where applications dismissed on the grounds of causing the respondent a disadvantage – whether the applicant was denied procedural fairness – whether the applicant given an opportunity to be heard on the proposed dismissal – whether any disadvantage could have been cured by an adjournment of the proceeding – whether error of law – whether exercise of discretion to dismiss miscarried Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 142(3)(a)(i) Terera & Anor v Clifford [2017] QCA 181 House v R (1936) 55 CLR 499 Sasip Pty ltd v Ashe and Anor [2021] QCAT 99 Du v Batra & Anor [2017] QCATA 138 Tracey v Olinderidge Pty Ltd & Wagner [2015] QCAT 7 Goldfield Projects Pty Ltd v Queensland Building and Construction Commission [2014] QCAT 55 |
APPEARANCES & REPRESENTATION: | The parties appeared in person |
- [1]In 2021 the applicant commenced two proceedings in the minor civil disputes jurisdiction of the tribunal claiming in one, compensation under section 419 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) for breaches by the owner’s agent of the right to quiet enjoyment, and rules of entry, of the premises she rented from the respondent. The second application was for rent relief due to excessive hardship under the Covid 19 Regulations.
- [2]There was an interlocutory hearing of an application by the respondent to dismiss the claims in February 2021, but that application was dismissed. Directions were made for the hearing of both applications together.
- [3]The applications were subsequently listed for final hearing on 25 March 2021. Hearing notices were sent to the parties requiring them to attend the Southport Magistrates Court for the hearing of both matters at 10:00am on 25 March 2021.
- [4]As it transpired the applications were not called for hearing until 11:10am due to delay in hearing other matters listed earlier in the day, which is not unusual in the minor civil disputes jurisdiction. When the hearing commenced there was no appearance by the applicant. Mr Wheatley appeared as agent for the respondent owner. At the commencement of the hearing learned adjudicator queried why the matters were listed before him because of potential conflict of interest which he had advised to the registry staff. Despite this Mr. Wheatley urged the adjudicator to proceed to determine the applications in the absence of the applicant. He had spent considerable time responding to these applications, and in essence was saying that the applicant was causing a disadvantage by refusing to email documents to him in a timely fashion and not attending the hearing.
- [5]In fact, only the previous evening he had received a bundle of documents, which are included in the appeal file, of some 30 odd pages. He had not had time to properly consider or respond to the documents. Similarly, the applicant filed documents by email with the court the previous evening. There was discussion between Mr. Wheatley and the adjudicator as to how the proceeding had been conducted to date, which included complaints that the applicant had been leaving everything to the last minute. An example was the provision of the bundle of documents the night before the hearing.
- [6]Because the applicant had not appeared, the learned adjudicator considered that the applicant was conducting the proceeding in a vexatious manner and causing the respondent a disadvantage by her conduct. He decided to dismiss the applications and proceeded to give reasons for doing so. He commenced giving oral reasons and said:
Pointing to his having been here before when the matter was adjourned, that is, T117 of ‘21, Mr. Wheatley says I should dismiss both applications. He refers to having had enough of this. In a colloquial sense and as an example, he refers to the plethora of additional material, much of which he has not received, such as, for example, in T117 of ‘21, the KDA’s email to the Courthouse Southport on 24 March at 8:01 pm that is, last night, of submissions running to many, many pages in great detail; an email sent to the courthouse by KDA on 24 March at 7:58 pm with other submissions; An email sent to the Courthouse Southport this morning at 10:26am by registry – correct that by email sent by KDA to court - to the Courthouse Southport 25th of March this morning at 10:25 am with submissions and documents running to 22 pages.
In addition to that, though he had been served with the document, Mr. Wheatley referred me to the submission of the applicant filed on 23 March 221, but apparently not served on that day. My estimate is that the documents accompanying those submissions exceed 30 or more pages. Compounded with that, as I say, is the fact that KDA does not appear for the applicant, that is she does not appear as applicant in either of the two matters.
I regard that combination, but particularly the continued filing of comprehensive documents late, as recently as this morning with this tribunal by email only, as conduct amounting to the conducting of these applications vexatiously. Section 48 of the QCAT Act says that, under subsection (1), it applies if:
the tribunal considers a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including by –
In subparagraph (f):
vexatiously conducting the proceeding.
- [7]The learned adjudicator was about to proceed quote subparagraph (g) of s 48(1) of the QCAT Act which refers to the failure to attend the hearing, when the applicant came into the hearing room. She duly apologised for her lateness on the basis that she thought the hearing commenced at 11:30am, despite the hearing notice stating 10:00am. The reason for the confusion being that this was the time the earlier application was listed for hearing in February. The learned adjudicator considered this excuse and then went on to continue to deliver his reasons for dismissing the claims under 48, and how the applicant's conduct had disadvantaged and the respondent.
- [8]He recognised, given that the late delivery of the material, that an adjournment might be necessary, but this was not explored in any detail with the respondent. The documents delivered late included a precise eight-page submission with documents attached. It is unclear whether the respondent had read it. There was no discussion with the parties about the content or whether the hearing could in fact proceed. There was no discussion about the potential conflict of interest. It seems material was also filed on the morning of the hearing but it is unclear whether this was the material given to the respondent the night before, I assume it was.
- [9]The applicant’s only excuse for the late filing of material was that she had called the registry and was told by staff she could file anytime before the hearing. That is obviously a generic statement by registry staff without awareness of circumstances and what was being filed. However, the applicant ought to have known, and it is common sense, that the opposing party needs sufficient time consider, and respond if necessary, to documents and evidence relied on by the other party.
- [10]The applications in both minor civil dispute proceedings were dismissed under s 48(1)(f) and 48(2) of the QCAT Act. The late attendance was not a trigger for dismissal.
- [11]On 22 April 2021 the applicant filed an application for leave to appeal or appeal the decision of the learned adjudicator. Her grounds of appeal are as follows:
- (a)I applied to QCAT for (i) compensation and (ii) an order on unpaid rent under Covid-19 regulations.
- (b)The hearing was scheduled for 25 March 2021. For reasons outside my control I did not attend the hearing. I applied for re-opening and it was not granted.
- (c)As per the notice of decision, at the hearing on 25 March, the adjudicator dismissed my application pursuant to section 48 of the QCAT Act.
- (d)The adjudicator made significant findings about my credibility, the grounds for my claims and disadvantage I was alleging causing the other party.
- (e)I believe that it was a breach of natural justice and procedural fairness as per Section 28 of the QCAT Act for such significant findings be made without me having the right of response.
- (a)
- [12]In respect of the grounds above, the assertion that the applicant did not attend the hearing, presumably meaning on time, for reasons out of her control, is inconsistent with what she told the tribunal. She was quite specific in saying she thought the hearing started at 11am because that was the time of the earlier hearing in February. To now assert there were reasons beyond her control is somewhat disingenuous.
- [13]There were no specific findings about the applicant’s credibility. It was the manner in which she was conducting the proceeding that was the focus of the learned adjudicator’s attention.
- [14]The substantive question for determination in this appeal is a question of law and that is whether the applicant was denied procedural fairness which turns on exercise of discretion of the learned adjudicator under s 48 of the QCAT Act.
- [15]As this is an appeal brought under s 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 in respect of a decision in a proceeding for minor civil dispute an appeal may be made only if the party has obtained leave of the tribunal. Leave to appeal will usually only be granted where there is a reasonable argument the decision was attended by error, or that an appeal is necessary to correct the substantial injustice caused by the error.[1] The substantive ground of appeal is on the basis of an error of law.
- [16]The applicant did not then, and does not in the appeal, dispute the conduct which is said to have caused the disadvantage to the respondent, and the tribunal, by the late delivery of the material she was intending to rely on at the substantive hearing. It ought to have been obvious to her that the respondent would need time to consider it and if necessary, prepare a response. It is not sufficient to simply rely on what the registry might have told her on a casual inquiry. Therefore, there was sufficient grounds to consider the application of s 48.
- [17]The applicant has filed comprehensive submissions in support of the appeal. She relies on statements made by tribunal members where s 48 was involved. In particular Sasip Pty ltd v Ashe and Anor[2] where the tribunal observed that dismissing a claim without any consideration of the merits is a serious matter. The issue in that case related to deceit but did not go so far as to infect the proceedings. What is useful in the case is the reference to the party’s obligations in the conduct of proceedings in the tribunal at [63]:
Tribunal Member Dr JR Forbes in Arowana Pty Ltd (t/a Choice IT Australia) v Scott [2019] QCATA 100 at [19] summarised that the responsibility of litigants in the Tribunal to attend to their own interests is emphasised by a former President of the Tribunal, Justice Wilson, in The Pot Man Pty Ltd v Reaoch [2011] QCATA 318 at [9]-[10]:
The QCAT statutory regime itself places obligations upon parties to take care in dealing 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.
- [18]In Du v Batra & Anor,[3] a case where a party failed to attend a hearing, the appeal tribunal said, in addition to what the applicant has quoted:
In particular, s 48 provides that a party may unnecessarily disadvantage another by causing an adjournment or failing to attend the hearing of the proceeding without reasonable excuse. In those circumstances the Tribunal may, if the party causing the disadvantage is the applicant for the proceeding, order the proceeding be dismissed or struck out.
In acting under s 48, the Tribunal must have regard to the extent to which the party causing the disadvantage is familiar with the Tribunal’s practices and procedures, and the capacity of the party causing the disadvantage to understand and act on the Tribunal’s orders and directions, as well as, whether the party causing the disadvantage is acting deliberately.
- [19]The applicant relies on a passage from Tracey v Olinderidge Pty Ltd & Wagner.[4] That case was about whether there should be an award of costs as a result of the conduct of a party. There is reference to the “irregularities and deficiencies to be disadvantages experienced in the usual course of litigation”. This case was not about costs. The applications were listed for final hearing. The applicant knew this and had sufficient time to prepare and serve her material on the respondent. To do so the night before the hearing is not an irregularity or deficiency which arises in the usual course of litigation.
- [20]In Goldfield Projects Pty Ltd v Queensland Building and Construction Commission[5], the tribunal consider the application of s 48 and said:
To succeed in an application under section 48 there should be clear and cogent evidence of contemptible or disruptive behaviour by a party aimed at intentionally or recklessly interrupting or preventing the appropriate adjudication on the merits of a matter before the tribunal. Generally, both parties to a dispute have a right to be heard and to present their cases as they see fit without inappropriate interference. It will rarely be the case that that right to be heard is truncated without very clear evidence of a party’s contumelious disregard of their obligations as a party before the tribunal or the opponent’s rights to a fair hearing.
- [21]The applicant contends that the learned adjudicator did not give any consideration to the merits of the case before deciding to dismiss the applications. This is correct and the transcript shows that it was the late delivery of material that enlivened the discretion. Although the applicant seems to assert that it was because she was late in attending the hearing this, of itself, was not the basis of dismissal.
- [22]The applicant further contends in her written submission that in respect of the lengthy materials she produced late, she would have been “able to refer the Adjudicator and the respondent to the relevant documents”. She says that she had the documents “carefully prepared in folders and would have been able to refer to them efficiently throughout the hearing”.[6] This approach misconceives the whole purpose of conducting litigation in a way that is fair to all parties by the timely production of documents to be relied upon, especially in the minor civil disputes jurisdiction where hearing time is limited. The respondent’s representative cannot, obviously, be expected to be able to respond to the applicant’s material, on the fly as it were, by hearing about it for the first time during the course of the hearing. Nor should the respondent have to incur further cost, if any, and delay with the associated stress as a result of the applicant’s tardiness.
- [23]This then leads to the question as to whether or not the learned adjudicator erred in the exercise of discretion. This can be considered against what the High Court said in House v R (1936) 55 CLR 499:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges compose in the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts on a wrong principle, if he allows extraneous irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed, and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if on the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
- [24]This proceeding was before the tribunal in February 2021 in respect of an interlocutory application by the respondent to dismiss the substantive applications. That application was dismissed with both matters to be consolidated and heard together at a later date. This was the first hearing date for the consolidated proceeding. It seems that, from reviewing the file in the minor civil dispute proceeding, the issues to be determined at the hearing were well within the knowledge of the respondent, hence the strike out application, and therefore there was no surprise with respect to issues to be determined at the hearing. It was only the production of the eight-page submission of the applicant, with attachments, that caught both the tribunal and the respondent off guard. The written submission is a concise formulation of the applicant’s contentions. Furthermore, the applicant appeared during the hearing before any final orders were made. Also importantly, the applicant was not given an opportunity to be heard on the proposed dismissal of her claim. Had she not appeared it may well have been different.
- [25]Having regard to what was said in House v R, to not give the applicant an opportunity to present her case in the circumstances, or at the very least to give her an opportunity to respond to the proposed course of action to dismiss, is plainly unjust. Also, there was no discussion with the respondent about whether he could proceed on the basis of the late material if given a little time to consider it. In many cases it is not unusual to stand the matter down for short period to give the parties and opportunity to review the material.
- [26]Mr Wheatley complains that he has been inundated with a large volume of material, even before the recent batch before the hearing. He has tried very hard to come to terms with the applicant’s claims, and contends that they are retaliatory as a result of the respondent trying to recover arrears of rent which he estimates is about $8,000. He and his wife are travelling overseas to take up a position and will be away for about 3 years. The conduct of the applicant has caused him considerable disadvantage.
- [27]Unfortunately, although the procedures in the minor civil disputes jurisdiction are meant to ensure matters are determined in a way that is “accessible, fair, just, economical, informal and quick”,[7] there are cases were litigants ignore this directive and have no consideration for the tribunal’s resources or and impact of their conduct on the other party. This is such a case, but this still does not mean the applicant should be denied an opportunity to press her case. Therefore, despite the disadvantage to the respondent, which could have been cured by standing the matter down, or an adjournment, the decision to dismiss the applicant’s claims cannot stand.
- [28]When applying tests for leave to appeal, I find that the applicant was denied procedural fairness, not only in that her case was summarily dismissed, but she was not given an opportunity to be heard about the proposed course of action to dismiss.
- [29]That being the case the order of the tribunal will be that leave to appeal is granted and the matters will be remitted for hearing in the minor civil disputes jurisdiction of the tribunal with the following directions.
- MCDDT 89 of 2021 and MCDT 117 of 2021 (“the applications”) be listed for hearing at the Southport Magistrates Court for a 2-hour hearing on a date to be advised to the parties.
- The applications to be listed for hearing before an adjudicator other than Adjudicator Walsh.
- The respondent is at liberty to attend the further hearing in person or remotely by telephone or video conference.
- This decision is to be delivered to the parties by email at the current email address held by the tribunal.
- The parties must exchange current email address, if different to those held by the tribunal, within 10 days of the receipt of this decision.
- The applicant must file and give to the respondent by email any further material she intends to rely at the hearing of the applications within 14 days of the receipt of this decision.
- The respondent must give to the applicant by email any further material he intends to rely on within 14 days of the receipt of any further submissions by the applicant.
- Subject to any further direction of the tribunal the hearing of the applications will be limited to the material already filed by the parties and any further material filed in accordance with this direction.