Dapontes v Jarrett [2024] QCATA 136

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Dapontes v Jarrett [2024] QCATA 136 PARTIES: ALEXANDRA DAPONTES (applicant/appellant) v ANGELA KRISTEN JARRETT APPLICATION NO/S: APL077-22 ORIGINATING APPLICATION NO/S: MCD 02542-21 MATTER TYPE: Appeals DELIVERED ON: 11 November 2024 HEARING DATE: 7 November 2024 HEARD AT: Brisbane DECISION OF: Member Richard Oliver ORDERS: 1. Leave to appeal is granted. 2. The appeal is dismissed. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – where service of the originating application for compensation in doubt – where application for compensation posted to the tenancy address vacated by the tenant six months before filing and service – where no application for substituted service – where no reasons given for the decision of the Tribunal – whether the Tribunal ought have sent the application for compensation to the respondent’s email address – whether Tribunal’s procedures for service followed – whether failure to give reasons an error of law – whether leave to appeal granted Queensland Civil and Administrative Tribunal Act 2009 s142(3)(a)(i) and Schedule 3 ANZ Banking Group Ltd v Smalley & Anor [2012] QDC 80. Carr (dec) in re Union Trustee Co of Australia Ltd v Carr [1942] QWN 18. Goddard and Lee v Cummings and Hoyer [2014] QCAT 237. Pacific Petroleum Products Pty Ltd v Malbo (Qld) Pty Ltd [2008] QDC 273. Rintoul v State of Queensland & Ors [2018] QCA 20. Terera & Anor v Clifford [2017] QCA 181 -- 1 of 6 -- 2 Tuck v Kanti-Paul [2024] QCATA 57 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: No appearance REASONS FOR DECISION [1] The applicant and the respondent entered into a tenancy agreement on 26 November 2020 in respect of a residence at 47 Union Street, Deception Bay (“the tenancy”). There was a dispute about compensation sought by the applicant for outstanding rent and outgoings. Because of the non-payment of rent under the agreement, on 5 March 2021 the applicant applied to the Tribunal for a warrant of possession. The Tribunal made an order issuing the warrant on 6 April 2021. There is no dispute that the respondent vacated the premises in or about mid-April 2021. [2] Much later, on 2 November 2021, the applicant filed an application for compensation (“the compensation application”) claiming compensation from the respondent for arrears of rent, water charges and repairs. The total claim including the filing fee amounted to $6,543.10. The application for compensation came on for hearing in the minor civil disputes jurisdiction of the Tribunal on 15 March 2023. The compensation application was dismissed because the learned adjudicator who heard the application was not satisfied that the respondent had been served with the originating application. [3] The applicant has appealed that decision. As this is an appeal from a decision in the minor civil disputes jurisdiction leave to appeal is necessary under section 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’). 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 Further in Rintoul v State of Queensland & Ors [2018] QCA 20 at [10] the Court of Appeal reiterated the general principles: The principles governing a grant of leave to appeal are well-established. In short, an applicant for leave to appeal must show: (a) the appeal is necessary to correct a substantial injustice; (b) there is a reasonable argument that there is an error to be corrected. There must be reasonable prospects of success to warrant a grant of leave. Therefore, in deciding whether to grant leave to appeal the Court usually makes some preliminary assessment of the prospects of the proposed appeal. [4] The respondent did not appear at the hearing below. The transcript records that the telephone numbers on the compensation application were called with no response. One of the numbers was disconnected. The hearing proceeded not on the substantive issues about compensation, although there was some brief discussion about that, but more so on a technical issue. That is whether the Tribunal could be satisfied that the 1 Terera & Anor v Clifford [2017] QCA 181. -- 2 of 6 -- 3 compensation application had been served on the respondent. Or, at least she had notice of it. [5] The learned adjudicator expressed concern at the commencement of the hearing that the respondent’s address on the compensation application is the same address as the tenancy at Deception Bay. At the time of filing on 2 November, Ms Dapontes knew that the respondent was no longer residing at the tenancy address. She had been evicted in mid-April as a result of the warrant sought by the applicant. [6] In residential tenancy matters such as this, once the compensation application is filed, the Tribunal mails the application to the respondent party, it being a non-urgent application. It is posted to the respondent’s address inserted in the application. Not only is the tenancy address on the application, there is also a telephone number as well as an email address. They are the same as appear on the tenancy agreement, although there is an additional telephone number on that document. [7] The practice for serving this type of application on a respondent is set out in the “Instructions for completing Form 2” which state that QCAT is to give a copy of the application to the respondent. [8] The application Form 2 includes a checklist and “WARNING” on page 7. It is relevant to record the warning here: Section 216 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) makes it an offence for a person to knowingly give the registry documents containing false or misleading information. Maximum penalty for such an offence – 100 penalty units [9] Furthermore, above the signature box directly below the “warning” there is the following attestation: The information in this application is true to the best of my knowledge [10] Ms Dapontes signed the application in the signature box attesting to the above statement that the content of the application was true. Although difficult to make out, there is another signature below hers which would seem to be co-lessor named on the tenancy agreement, Earnesto Tabaro, although I cannot be sure about that. There is no evidence as to the identity of that person. [11] It is patently obvious that nominating the respondent’s address, being the tenancy address, is simply not true, and it is misleading. It is misleading to the QCAT registry staff because that is the address to which the registry staff will post the compensation application. Ms Dapontes knew that the respondent would not receive the documents at that address. Therefore, the learned adjudicator had every reason to be critical of Ms Dapontes by saying that she had misled the Tribunal. Having known that she could have sought assistance from the registry staff she would, no doubt, have been advised to make an application for substituted service. That is what she did in this appeal. [12] Ms Dapontes did not know, and confirmed in the hearing before me, whether the respondent arranged to have her mail forwarded onto her. The unanswered question here is that if the respondent had arranged for the local Post Office to forward the mail, how long would that have lasted, bearing in mind that the application was sent out by the Tribunal more than six months after she vacated the property. There is also a cost to having mail redirected and, if she could not pay the rent, then this would have been a burden she may not have been able to afford. -- 3 of 6 -- 4 [13] Ms Dapontes relied on some hearsay evidence from a neighbour that the respondent collected the mail, but that hearsay evidence is not probative, when it lacks particulars of when the mail was collected, and the frequency. Even if this is correct, it is still reasonable to infer that there would be no reason for the applicant to revisit the property to check on mail more than six months after leaving. [14] Ms Dapontes contended that as the documents were not returned to the Tribunal and an inference should be drawn that the respondent had received them. In my view such an inference cannot be drawn for a number of reasons. Firstly, there is no evidence that the premises were re-tenanted subsequent to the respondent vacating the property. This raises the question as to who was likely to return them. Secondly, if tenanted then it would be a simple matter for Ms Dapontes to lead some evidence as to whether the documents were collected and what happened to them after that, again bearing in mind six months had elapsed. [15] Ms Dapontes submits that the “current postal address” for the respondent is the tenancy address, which is the same as her electoral address having conducted an electoral roll search on 30 May 2022.2 Therefore she submits, in reliance on a number of cases3 service at the electoral address is good service. The cases are unhelpful. Firstly, in Goddard the application for substituted address at the electoral address was refused because the Tribunal was not satisfied that personal service was not impractable. In the Smalley case, an order for substituted service was ordered at the electoral address because there was evidence before the Judge that the party sought to be served frequented that address, being a property owned by him over which there was a mortgage. The significant distinguishing feature here is, and this is somewhat repetitive, Mrs Dapontes knew that the respondent was not at the Deception Bay address even though it was her electoral address, there was just no reason for her to go there. [16] Ms Dapontes contends she did email the respondent the application the day before the hearing. The learned adjudicator referred to this4 and said that even so, that only gave the respondent 24 hours notice, if she received the email. In fact, in her appeal submissions Ms Dapontes attached a copy the email (not contained in the minor civil dispute file) to the respondent’s email address dated 14 March 2022 at 22.49pm. The hearing commenced at 11.13am on the 15th meaning that the respondent only had 13 hours notice, again if she received the email, of which there is no evidence. After vacating the tenancy, there is simply no probative evidence, either at first instance or in the appeal that the email address is the respondent’s current email. I would observe that since the introduction of email, a person’s email address is rarely changed, but it does happen particularly if the email address has been hacked, a service provider has changed or an individual may wish to remain anonymous. [17] Ms Dapontes contends she was denied procedural fairness. Firstly, because of the way the hearing was conducted, in that she says she did not get a fair opportunity to present her case. The transcript does demonstrate that the hearing was short and to the point, going straight to the issue of service and also alleging that Ms Dapontes misled the Tribunal. Given the factual background and her failure to provide the true and correct 2 Applicant’s submissions fled 11 April 20213 attachment “A”. 3 Carr (dec) in re Union Trustee Co of Australia Ltd v Carr [1942] QWN 18; Pacific Petroleum Products Pty Ltd v Malbo (Qld) Pty Ltd [2008] QDC 273; Goddard and Lee v Cummings and Hoyer [2014] QCAT 237 and ANZ Banking Group Ltd v Smalley & Anor [2012] QDC 80. 4 Transcript page 4 line 25 -- 4 of 6 -- 5 residential address for the purpose of the Tribunal being able to bring the application to the notice of the respondent, there was certainly a sound basis for the criticism. This was the critical issue in the case at first instance and dealt with in an incisive way. I cannot see from the information before the learned adjudicator, and having read the transcript that there was a denial of natural justice, bearing in mind the objects in s 3 of the QCAT Act. [18] In these circumstances the decision to dismiss the application was an exercise of discretion on the part of the learned adjudicator. Faced with the untrue information on the application which Ms Dapontes asserted was true by her signature in the signature box, and knowing that the application would not be served on the respondent at that address, this was a relevant consideration to be taken into account, in the House v R5 sense, in exercising the discretion to dismiss the application. She also submits the learned adjudicator should have adjourned the application, but the transcript shows no application was made for an adjournment. On the contrary, Ms Dapontes was insistent that there had been effective service, which has been reiterated in the application for leave to appeal. [19] She also attributes some blame on the QCAT Registry for not emailing the application to the respondent or obtaining her address from the Residential Tenancy Authority. There is nothing to this complaint. Although the Registry provides the service of posting the application documents to a respondent, it is fundamentally the responsibility on any applicant to ensure the information contained in the application is correct, particularly the address for service. This is where Ms Dapontes failed and the fact that the application was dismissed for this misleading information is entirely her own fault. Furthermore, I would go so far as to say, if the learned adjudicator did proceed on the basis of effective service that would, in these circumstances, be an error of law. [20] Ms Dapontes submits she followed the QCAT procedures and therefore it is not her fault if the respondent was not served with the application. To an extent that is correct, however, the QCAT registry relies on the information in the application to be true and correct so as to discharge its functions under the Act. That did not occur here because of incorrect address Ms Dapontes put on the application. [21] There is also a complaint that the adjudicator did not give reasons for his decision. That is correct. Having heard the submissions from Ms Dapontes, he then dismissed the application. He should have given reasons for the dismissal even if they were brief. The failure to give reason is an error of law. The obligation under s 121(4) of the QCAT Act to give reasons, is best summed up in what Judicial Member McGill said in Tuck v Kanti-Paul [2024] QCATA 57 at [13] There is a statutory obligation to give reasons, and it is now recognised as inherent in the nature of the judicial process that reasons be given, at least in a case where there is a possibility of an appeal. It follows that, in this respect, the hearing was not conduced according to law. I consider that it is therefore appropriate for leave to appeal to be given.6 [22] I respectfully adopt that summation. There are numerous other appeal decisions in the Tribunal where the obligation to provide reasons has been discussed, it is not a novel 5 (1936) 55 CLR 499. 6 Citations omitted. -- 5 of 6 -- 6 concept. It is particularly important when the decision involves an exercise of discretion, as was the case here. Also, in this case the adjudicator ought to have been aware of the possibility of appeal in the manner in which the hearing was conducted. [23] Although I propose to give leave to appeal, having regard to the discourse between the adjudicator and Ms Dapontes she was, in my view, left in no doubt as to why the application was being dismissed. The facts speak for themselves concerning the consequences of putting the tenancy address on the application form. [24] Even though there is an error of law for the failure to give reasons, Ms Dapontes has not suffered prejudice because of this and therefore there is no other basis to interfere with the learned adjudicators decision to dismiss the application. [25] Even though the respondent did not appear on the appeal, Ms Dapontes has not been able to satisfy me that there was any error in respect of the substantive issues determined by the Tribunal in the hearing below. Therefore, there is no basis upon which to allow the appeal. The orders will be: 1. Leave to appeal is granted. 2. The appeal is dismissed. -- 6 of 6 --