Jackson v Hunter[2024] QCATA 68

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The appellants rented an apartment to the respondent under a residential tenancy agreement. The tenancy commenced on 30 April 2021 and expired on 24 January 2022. A rental bond was paid to the Residential Tenancy Authority of $3,000.00. Upon vacating the premises, the respondent sought recovery of part of the rental bond of $2,153.44 after deductions. When the balance bond was not released, he commenced a proceeding in the Tribunal’s minor civil disputes jurisdiction which deals with residential tenancy matters on 28 November 2022 to recover the balance owing.
2. [2]
   The initial proceeding was served on the appellants’ agent Place Real Estate. Joshua Barnes was the rental agent at Place looking after the tenancy. The appellants were informed of the application, so much appears in the appeal documents.
3. [3]
   When the matter came on for hearing on 4 May 2023 neither Mr Barnes nor the appellants’ appeared. The learned adjudicator who considered the matter was satisfied that the appellants were served with the hearing date an made a final order that $2,153.44 of the bond money be paid to the respondent.
4. [4]
   On becoming aware of the decision, the appellants filed the application for leave to appeal or appeal on 26 May 2023. The grounds of appeal do not identify any error in the decision but provide an explanation as to why there was no attendance by the appellants at the hearing. This would suggest that what they really want to achieve is a reopening of the primary proceeding under s 138 of the Queensland Civil and Administrative Act 2009 (‘QCAT Act’). Section 139(4) of the Act provides that the Tribunal may grant an application to reopen only if a reopening ground exists. The definition of a reopening ground is in Schedule 3 to the Act. The only relevant reopening ground here is whether a party has a reasonable excuse for not attending.
5. [5]
   In part C of the application for leave to appeal or appeal no reasonable ground for not attending the hearing has been established. What the appellants say, is that they were reliant on Mr Barnes to keep them informed and once the agency ceased representing the appellants, they were advised that it was their responsibility to communicate with the Tribunal to ensure they became aware of the hearing date. As Ms Jackson was going overseas, the Tribunal was advised that they would not be available between 1 April 2023 and 3 May 2023. However, it is recorded that Mr Jackson “received a letter in the mail around mid-April saying the hearing would be on 4^th of May 2023”.
6. [6]
   Ms Jackson returned to Australia on, it seems, the scheduled date but says she caught Covid 19 on the (or a) flight. What she does not say is that firstly, when she became symptomatic and secondly, that she was not available to attend the hearing, at least by telephone on 4 May. There is no explanation as to why Mr Jackson did not appear by telephone or in person at the hearing when he knew it was listed. In short, there is no reasonable explanation, or any explanation, as to why one of the appellants could not attend the hearing.
7. [7]
   Therefore, if I were to treat the application for leave to appeal or appeal as an application to reopen, it would be dismissed.
8. [8]
   As for the appeal itself, given the non-appearance by the appellants, the learned adjudicator was entitled to proceed under s 93 of the QCAT Act which provides if the Tribunal is satisfied that the party has notice of the hearing, and does not attend, it can hear and decide the matter in the party’s absence.
9. [9]
   The only evidence filed in the minor civil dispute proceeding was from the respondent. Mr Hunter. As the respondent submits in the appeal the applicant had an opportunity to file material in the original proceeding but chose not to do so. The Tribunal will not adjourn a hearing simple because a party does not appear unless there is good reason to do so. The respondent was unaware of the reasons for the appellants’ non-appearance as the appellants had not advised him of their potential absence.
10. [10]
    The decision was made was open on the available evidence. No error or injustice has been demonstrated.
11. [11]
    Finally, 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 (or permission) 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]
12. [12]
    No ground for leave to appeal has been demonstrated here. Therefore, leave to appeal is refused.