Amos v Fonti & Bird[2023] QCATA 8

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This is an appeal brought by Edward Amos against a tribunal decision made on 21 May 2021 and amended on 1 June 2021, in which a tribunal Adjudicator decided in a hearing on the papers that Mr Amos’s application should be dismissed without a hearing on the merits.
2. [2]
   Mr Amos’s applied as lessor in a residential tenancy matter, claiming that his tenants, who are the respondents to this appeal, broke their lease and vacated the premises owing rent, and leaving damaged and missing items.  He claimed a total of $4,434.29.
3. [3]
   Mr Amos asked for reasons for the Adjudicator’s decision dismissing the application and these were given by the Adjudicator on 26 April 2022.  There were two reasons given by the Adjudicator for the decision:

   1. (a)
      If there were to be a hearing of the matter, the circumstances were insufficient for section 93 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) to apply.  That section provides that on certain circumstances a hearing can proceed in the absence of a party.  Here, because of the age of the proceeding, the respondents could not be found and so the matter must be dismissed.^[1]
   2. (b)
      The application had already been dismissed by operation of a guillotine order of 12 March 2021 which had not been complied with.^[2]
4. [4]
   In this appeal it is said that:

   1. (a)
      The tribunal misdirected itself by working on the basis that the proceeding had been commenced in the Small Claims Tribunal 11 years ago when in fact the proceeding was commenced in the tribunal on 16 February 2021.
   2. (b)
      The tribunal erred in finding that neither of the pre-conditions in s 93(1) of the QCAT Act were satisfied and thereby erred in failing to exercise its discretion to hear and decide the proceeding in the respondents’ absence pursuant to sections 93(2) and (3).
5. [5]
   Submissions which appear to have been prepared by a legal professional were filed in support of the appeal on 13 July 2022.
6. [6]
   The tenants have been served with the appeal in accordance with the rules but have not participated in this appeal.^[3]
7. [7]
   Mr Amos’s submissions do not address the guillotine order.  The order was made by a different Adjudicator on 12 March 2021 as follows:

1. The time for filing of evidence of reasonable enquiries to locate the respondent is extended to the 29 March 2021.

2. If no such evidence is provided to the Tribunal by the 29 March 2021 the application shall be dismissed without further reference to the parties.

8. [8]
   This order was a reference to a letter which the tribunal sent to Mr Amos just after receipt of his application, requiring him to file in the tribunal by 8 March 2021:

evidence of all reasonable inquiries to locate the Respondent, pursuant to section 93 of the Queensland Civil and Administrative Tribunal Act 2009, including:

contact details with all known addresses, email, text, social media

notices given to next of kin, emergency contacts

notices to place of work

internet search, telephone directory search or any other valid method to satisfy the tribunal that the Respondent has notice of “THE CLAIM”

proof of every such item of contact or notice to be attached in writing to a statement of the person making the contact

9. [9]
   The letter then said:

Please lodge your evidence of all reasonable inquiries to locate the Respondent by 8 March 2021.

Please be advised that if satisfactory evidence is not provided to the Tribunal by 8 March 2021 the application may not proceed or may be dismissed without further reference to the applicant.

10. [10]
    On 8 March 2021 the tribunal received a letter (dated 4 March 2021) from Mr Amos which stated:

I refer to your undated letter which I received today.  I also refer to my phone call to (name of QCAT officer) today.  I confirm Australia Post has advised me to still address mail to the tenants at (address of tenancy) and they will redirect it on to the tenants new address.  As arranged with (name of QCAT officer) today I enclose the letters from Australia Post.

11. [11]
    Copies of two letters from Australia Post were attached, both dated 29 January 2021 and addressed individually to each tenant.  It might be thought that there was some difficulty in the tribunal looking at these copy letters because the letters were addressed to the tenants and not to Mr Amos, but I do not think it can be said that the letters were improperly or illegally obtained by Mr Amos.^[4]  This means that there is no difficulty admitting them in evidence.
12. [12]
    The letters from Australia Post confirmed that each tenant had asked for their mail to be redirected as from 3 February 2021, and confirmed that such mail would be redirected unless it appeared that the request was unauthorised.
13. [13]
    In residential tenancy matters the tribunal itself usually sends a sealed copy of the application to the respondent.  Here, at first the tribunal’s officers were unsure as to the correct address to send the sealed copy of the application.  The letters from Australia Post demonstrated that the tribunal could use the address of the tenancy itself because this would result in the application papers being redirected so that they would come to the attention of the tenants.
14. [14]
    Instead of doing this, the tribunal referred the question of service to an Adjudicator to consider an order for substituted service.  It is not clear from the file whether, in the referral, the Adjudicator was given a copy of Mr Amos’s letter received on 8 March 2021 or the letters from Australia Post about redirection.  It seems likely that the Adjudicator was not given these documents, because otherwise the guillotine order which was made on that day would not have been made. 
15. [15]
    As can be seen from the order made on that day recited above, Mr Amos had until 29 March 2021 to comply with the order made.  On 29 March 2021 the tribunal received a letter (dated 26 March 2021) from Mr Amos.  The letter described numerous different enquiries that he had made to try to find the tenants, and information he had at the start of the tenancy and during it about the place of work of one of them.  He attached a letter he had written to one tenant to his place of work and two documents that the tenants had left in the property.
16. [16]
    On 21 May 2021 the tribunal referred the matter to an Adjudicator.  Originally the note on the referral notice said:

Applicant failed to comply with order

17. [17]
    Someone has changed this at some time to:

Applicant complied with order

18. [18]
    It is not clear from the file whether, in the referral, the Adjudicator was given a copy of Mr Amos’s letter received on 29 March 2021 and the documents attached.  It seems likely that the Adjudicator was not given these documents, because otherwise the order made on 21 May 2021 dismissing the application would not have been made.  The order made on that day named only one respondent.  On 1 June 2021 it was amended to name both respondents.
19. [19]
    It is clear from the reasons given by the Adjudicator on 26 April 2022 that when giving reasons, the Adjudicator did have Mr Amos’s letter received by the tribunal on 8 March 2021 and also that received on 29 March 2021.

The appeal

20. [20]
    It is correct as said in the submissions on appeal that the reasons given on 26 April 2022 show that the Adjudicator was of the belief that Mr Amos’s application had been made some 11 years earlier.  In fact the application had been made on 16 February 2021.
21. [21]
    It seems to be correct as said in the submissions on appeal that this led the Adjudicator to believe that it was right to dismiss the application because it was very unlikely that the Australia Post redirect would still be in place after such a long time, and so the tenants could not be found.  This was an error of fact.  On 21 May 2021, the documents showed that the redirect had started just over 3 months before and it was therefore feasible that it was still in place.  The documents also showed that the tribunal had been informed about the redirect on 9 March 2021 and therefore should immediately have sent the application to the tenants at that time.  In those circumstances, on 21 May 2021 an attempt at service through the redirect should have been made rather than dismissing the application altogether as actually happened.
22. [22]
    Although not a ground of appeal, it is also clear to me that it was wrong to say that the guillotine order had taken effect so that the application had already been dismissed. 
23. [23]
    For one thing the guillotine order of 12 March 2021 does not expressly say that no further order is required.  It is right to read such orders restrictively and on that basis a further order was needed to dismiss the application.
24. [24]
    Secondly the question arises what an applicant needs to do to comply with a letter of the type received by Mr Amos from the tribunal.  Such a letter is sent out by the tribunal to applicants in residential tenancy applications who have not provided a workable address for service for a respondent.  It seems to me that it is sufficient compliance with that letter to explain to the tribunal what reasonable enquires have been made, so that a decision can be made in the tribunal whether those enquiries would be sufficient for the purposes of section 93 of the QCAT Act (deciding in absence of person). 
25. [25]
    The information is also helpful for the tribunal to decide whether to make an order for substituted service under rule 40 of the QCAT Rules.  Such an order can be made if it is impracticable to give a document to a respondent in the usual way.
26. [26]
    What the letter does not require is that a party does in fact conduct the enquires which are listed in the letter.  Instead, the letter is complied with by informing the tribunal what enquiries have been made and by implication, the outcome of those enquiries.
27. [27]
    Mr Amos certainly did this by his letter received on 29 March 2021.  So it cannot be said that he was in breach of the order made on 12 March 2021.
28. [28]
    In any case in the circumstances of this particular case, because of Mr Amos’s letter received by the tribunal on 8 March 2021, the guillotine order was unwarranted so that on 21 May 2021 relief from it should have been given.^[5]

Conclusion

29. [29]
    In these types of appeal, leave to appeal is necessary.  I give leave to appeal and for the reasons given above, I allow the appeal.
30. [30]
    Since this is an appeal under section 147 of the QCAT Act (deciding appeal on question of fact or mixed law and fact) I have dealt with it as a rehearing.  However I cannot decide the residential tenancy application itself, and this is returned to the tribunal for reconsideration.  Effectively this means it should be dealt with in the usual way.