Hughes v Fogarty[2024] QCATA 21

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

What is the application about?

1. [1]
   Twice now, a residential tenancy dispute has been decided in the minor civil disputes ‘MCD’) jurisdiction in the absence of the respondent lessor, in circumstances where the lessor was never served with the application to which she was expected to respond. On the first occasion, leave to appeal was granted, the appeal was allowed, and the matter returned to the MCD jurisdiction for rehearing.  On the second occasion, I must do the same, for the same reasons.

The factual background to the dispute

2. [2]
   The factual background to the tenancy dispute was summarised by Dr Forbes in Hughes v Fogarty [2022] QCATA 190, extracted as follows (footnotes omitted):

Introduction

[1] In this tenancy dispute Fogarty and Parker (`the tenants”) seek to recover $3,400, being rent paid to Hughes (`the lessor’) for 40 days after their premature departure from a unit at Main Beach (`the premises’). This matter began as a residential tenancy dispute entitled Fogarty and Parker v Jamessimone Pty Ltd on 24 November 2020.

[2] The tenants’ lease commenced on 21 August 2019 and was due to expire on 20 August 2020. It records Merryn Hughes as the lessor, and James Hall, trading as The Waratah Main Beach Apartments as agent. Subsequently Hall retired as agent, to be replaced by an entity described in the original application as Jamessimone Pty Ltd, of 22 Montgomery Avenue Main Beach.

[3] The tenants are citizens of New Zealand. They vacated the premises informally on or about 11 July 2020, when amid the Covid emergency, New Zealand was about to close its borders.

Balance of rent paid, payment regretted

[4] The tenants tried to persuade the lessor to release them from further rent, but she refused, on the basis that the lease was still extant, with several weeks yet to run. So as non-lawyers, in good faith and to keep the peace as they saw it, the tenants paid the balance of $3,400.

[5] But subsequently the tenants gained the impression that shortly after their departure the lessor allowed someone else to occupy the premises. It was then that they sought reimbursement of the amount spent on `paying out’ the lease.

Action for reimbursement

[6] On 24 November 2020 the tenants filed an application against Jamessimone bearing this endorsement:

[We] are seeking reimbursement for rent from the period 11 July 2020 to the expiry of [our] lease being 20 August 2020. [We] had advised the onsite manager that [Kerry] Parker’s work had shut down during Covid which meant [we] had no ongoing income. ... The onsite manager checked with the [lessor] and was told by [her] that they could leave early but would have to pay out the lease to 20 August. They did this despite their financial position and then left for NZ. ... In the meantime Ms Fogarty found out that the apartment was being occupied by other people from 11 July. ... They believe their rent should be reimbursed from the moment another occupant took possession of the property. ... They are seeking reimbursement of $3,400 being 40 days’ rent based on a weekly rent of $595 and covering the period 12/7/20 to 20/8/20.

How the dispute travelled through the tribunal

3. [3]
   By decision made 3 February 2021, the lessor, Merryn Hughes was joined as a respondent and the agent, Jamessimone Pty Ltd was removed. A direction was made requiring service of a copy of the application and notice of hearing upon Ms Hughes.
4. [4]
   Despite the direction, Ms Hughes was not served with the application in a residential tenancy dispute.
5. [5]
   Accordingly, a final decision made in her absence on 13 April 2021 was set aside by the Appeal Tribunal on 8 July 2022 in Hughes v Fogarty [2022] QCATA 190 because the failure to serve her with a copy of the application was found to be a denial of natural justice and, therefore, amounted to an error of law.
6. [6]
   Dr Forbes said:

[18] …a notice of hearing is not notice of the claim. The onus of serving and proving service of a proper, particularised claim rests squarely upon the claimant.^[1] That is an elementary principle of litigation, understandable without any need of advanced legal training. As a former President of QCAT emphasised:

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 best interests.^[2]

In the context of the legislation and the demands upon public resources like those which fund QCAT it is not unreasonable to impose, upon a party, an expectation and an obligation that it will ensure it acts in its own best interests or accept the consequences.^[3]

[19] The subject of a civil claim is not expected and should not be expected to ferret out and serve upon himself a notice of an adverse claim. It is not good enough to tell an opponent, in effect: `By the way, I am taking you to court next week. You had better try to find a copy of what I’ve alleged against you.’ That is as untenable as it would be audacious.

[20] It is a legal axiom that a party charged or faced with a civil claim is entitled to adequate notice of claim against him,^[4] and a full and fair opportunity to present his case.^[5] It is no suggestion of conscious fault on anyone’s part to affirm that in this case those requirements of natural justice were plainly not satisfied.

7. [7]
   I respectfully note, however, that for residential tenancy disputes, responsibility for service of the application falls to the Registry rather than to applicants.^[6]
8. [8]
   In any event, the application was listed for rehearing on 14 November 2023 and notice sent to the parties, but it was adjourned on the papers by a learned Adjudicator upon receiving Ms Hughes’ written objections to the hearing proceeding in circumstances where she had not been served with the application in a residential tenancy dispute.^[7] 
9. [9]
   The scheduled hearing was adjourned, but, still, Ms Hughes was not served.
10. [10]
    When notice of the 5 December 2023 hearing was given, Ms Hughes again objected, in writing, to the hearing proceeding in circumstances where she had not been served with the underlying application. She refused to attend the hearing in those circumstances and insisted the earlier direction to serve be complied with.^[8]
11. [11]
    The learned Adjudicator opened the 5 December 2023 hearing by observing that:

    1. orders had been made joining Ms Hughes to the proceeding;
    2. orders had been made requiring Ms Hughes to be served with the application;
    3. messages had been left for Ms Hughes attempting to connect her to the hearing; and
    4. Ms Hughes’ letter of 1 December 2023 specifically stated that she refused to attend the hearing as it was an abuse of process to proceed where she had not been served with the application, describing it as “strange that she does not want to be heard”.^[9]
12. [12]
    The learned Adjudicator then applied section 93 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) to make a decision in Ms Hughes’ absence.
13. [13]
    Understandably, Ms Hughes wants to appeal the 5 December 2023 decision but requires leave^[10] and an extension of time to do so.^[11]

Extension of time

14. [14]
    Pursuant to section 143 of the QCAT Act, an application for leave to appeal must be filed within twenty-eight days after the “relevant day”, which is:

    1. if written reasons have not been given for the decision being appealed against and reasons have not been requested under section 122 or are not required to be given—the day the person received notice of the decision; or
    2. the day the person is given written reasons for the decision being appealed against.
15. [15]
    According to the file, the written decision would have been received by Ms Hughes in the ordinary course of mail by 15 December 2023. Reasons were not requested, and the time limit for filing the application for leave to appeal or appeal expired on 15 January 2024.  It was not filed until 24 January 2024.
16. [16]
    Under section 61 of the QCAT Act, the Appeal Tribunal may extend the period within which a person may apply for the Appeal Tribunal’s leave to appeal or make an appeal.
17. [17]
    The discretion given to this Tribunal under section 61 of the QCAT Act is limited only by subsection (3), which relevantly provides that a time limit cannot be extended if to do so would cause prejudice or detriment, not able to be remedied by an appropriate order for costs or damages, to a party to the proceeding.
18. [18]
    The factors to be considered in the exercise of a discretion to extend time include:

    1. whether a satisfactory explanation or good reason is shown for the delay in taking the relevant step;
    2. the likelihood of success of the proceeding if leave to commence it is granted;
    3. any prejudice to other parties;
    4. the length of the delay, noting that a short delay is usually easier to excuse than a lengthy one; and
    5. overall, whether it is in the interests of justice to grant the extension, which usually calls for some analysis of the above factors considered in combination.^[12]
19. [19]
    For the reasons given below, the decision made on 5 December 2023 in a failure of due process that denied natural justice to Ms Hughes. The delay is relatively short and occurred over the Christmas/New Year office closures period.  The interests of justice require that time to file be extended, and I so order. 

Leave to appeal

20. [20]
    In determining whether to grant leave, the Appeal Tribunal must be satisfied that:

    1. there is a reasonably arguable case of error in the primary decision;^[13]
    2. there is a reasonable prospect that the appellant will obtain substantive relief;^[14]
    3. leave is needed to correct a substantial injustice caused by some error;^[15] or
    4. there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.^[16]
21. [21]
    Upon review of the file, and upon inquiries made of Registry, it became obvious that:

    1. Ms Hughes has never been served with a copy of the application in a residential tenancy dispute to which she is the respondent.
    2. The Tribunal below made no inquiries about service of the application, where it was a live issue due to the previous appeal decision and due to it having been specficially raised by Ms Hughes in her pre-hearing submissions.
    3. Section 93 of the QCAT Act permits a hearing to proceed in the absence of a person who has been given notice of the hearing, but does not permit it to proceed in the absence of service of the underlying application.
    4. The decision made in Ms Hughes’ absence on 5 December 2023 is therefore infected with the same error of law (denial of natural justice) as the decision made 13 April 2021 and overturned on 8 July 2022, and subtantial injustice has resulted.
22. [22]
    Unfortunately for the parties, the tribunal’s functions to ensure proceedings are conducted in an informal way that minimises costs to parties and is as quick as is consistent with achieving justice^[17] and, in minor civil disputes, to make orders that it considers fair and equitable to the parties to the proceeding to resolve the dispute, have not been achieved in this instance.^[18]

Decision

23. [23]
    After giving the parties an opportunity to make submissions on the proposed course, which was not taken up by either, given the obvious error made on 5 December 2023, which can only be cured by granting leave to appeal, allowing the appeal and remitting the matter for rehearing after the Registry serve the application in a tenancy dispute upon Ms Hughes, the Appeal Tribunal has decided:

    1. to extend the time for the application for leave to appeal the 5 December 2023 decision to 24 January 2024 (the filing date);
    2. to grant leave to appeal the decision of 5 December 2023, to allow the appeal and to set the decision made 5 December 2023 aside;
    3. to request the Principal Registrar to refund the fee paid on the application for leave to appeal or appeal filed 24 January 2024;
    4. to direct the Principal Registrar to serve a copy of the application in a residential tenancy dispute upon Merryn Hughes within seven (7) days; and
    5. to list the application in a residential tenancy dispute for rehearing as soon as possible, but allowing at least thirty (30) days after the application is served.