Farren v The Agency [2024] QCATA 50

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Farren v The Agency [2024] QCATA 50 PARTIES: JEANETTE FARREN (applicant) V THE AGENCY (respondent) APPLICATION NO/S: APL023-24 ORIGINATING APPLICATION NO/S: MCDQ963-23 MATTER TYPE: Appeals DELIVERED ON: 2 May 2024 HEARD AT: Brisbane DECISION OF: Member Lember ORDERS: The application for an extension of time to file the application for leave to appeal or appeal (filed informally by way of email on 29 February 2024) is refused. Accordingly, the application for leave to appeal or appeal filed 18 January 2024 is dismissed because it was filed out of time. CATCHWORDS: APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – EXTENSION OF TIME – where application for leave to appeal filed out of time – whether time should be extended Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 32, s 47, s 61, s 122, s 135, s 138, s 139, s 143 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 94, s 416, s 419, s 420 Barker v Wingo 407 U.S. 514 (1972) Body Corporate for No 9 Port Douglas Road v McEvoy [2011] QCATA 292 Brisbane South Regional Health Authority v Taylor (1986) 186 CLR 541 Crime and Misconduct Commission v Chapman [2011] QCAT 229 -- 1 of 8 -- 2 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION What is this decision about? [1] On 27 February 2022, Ms Farren says the property she occupied as a tenant became inaccessible and was deprived of essential services such as electricity, gas and water due to flooding. Photographs and emails filed in evidence establish that this was indeed the case. [2] She brought a claim for rental credits and compensation for alternative accommodation, medical expenses she says are attributable to health issues arising from mould exposure and other items. Ms Farren says she was not offered rental credits and repairs were not undertaken by the lessor, represented by The Agency, in breach of her tenancy agreement and the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRAA). [3] By a decision made in MCDQ963-23 on 8 September 2023 Ms Farren’s claim was dismissed by the Tribunal below (the Dismissal Decision). By a decision made 19 October 2023 her subsequent application to correct that decision was also refused (the Correction Decision). [4] Ms Farren applied out of time for leave to appeal or appeal the Correction Decision. By a decision made 8 April 2024 her application to extend time was refused, for the reasons that now follow. Chronology [5] The tenancy dispute arose and then proceeded through the Tribunal as follows: 27 February 2022 Flooding event leading to water inundation at the property. In the months following various trades attended for repair/replacement of damaged items. 19 May 2022 Ms Farren issues a Form 11 Notice to Remedy Breach for repairs/property condition, to be remedied by 17 June 2022. 20 May 2022 Ms Farren makes demand upon The Agency for $3,513.20 in compensation for rental credits for times when the property was not accessible or services not working following the flood, the cost of alternative accommodation due to flooding, rent credits due to mould contamination, the cost of a mould report and alternative accommodation due to mould. 26 May 2022 Ms Farren issues a Form 13 Notice of Intention to Leave property for non-liveability and mould issues. The Form 13 was expressly stated to be overriding the prior issued Form 11. 31 May 2022 Ms Farren vacates the tenancy. -- 2 of 8 -- 3 17 June 2022 The tenancy is relet. 27 July 2022 MCD1884-22 is filed by The Agency seeking $280.00 for cleaning, $52.90 for water and $50.00 for rubbish removal from the tenancy. 13 December 2022 MCDT1884-22 is decided, disbursing bond between parties with $382.90 to The Agency and the balance to Ms Farren. 31 March 2023 MCDQ963-23 is filed by Ms Farren, seeking $3,650.64 in compensation/rental credits 27 April 2023 “Revised” MCDQ963-23 is filed. 30 August 2023 Application by The Agency to strike out MCDQ963-23 is filed. 6 September 2023 Strike out application by The Agency is refused. 8 September 2023 MCDQ963-23 is dismissed application due to non- appearance by Ms Farren (Dismissal Decision). 12 September 2023 Application to correct a decision filed by Ms Farren. The grounds are that Ms Farren says she had attempted to file an application to attend the hearing by telephone by it did not upload. 19 October 2023 Application to correct is refused as an application to reopen (Correction Decision). 23 October 2023 Ms Farren receives the Correction Decision. 18 January 2024 Application for leave to appeal or appeal the Correction Decision is filed by Ms Farren. [6] A Notice of Unresolved Dispute has never been filed in the proceeding. The MCD applications each contain a different RTA ‘dispute resolution reference number’ but there is no evidence that the parties completed RTA dispute resolution processes prior to filing either application. The application for leave to appeal or appeal [7] A copy of the Correction Decision was given to the parties on 23 October 2023 with an attachment spelling out “Appeals Information” including the time limits for making an application for leave to appeal or appeal. [8] On 11 November 2023 Registry emailed Ms Farren in reply to her request for information about having the matter reheard because her form requesting telephone attendance for her hearing was not received by the Tribunal (it did not upload according to Ms Farren). Among other things Registry advised as follows: The abovementioned minor civil dispute is finalised; however you may apply for leave to appeal the decision. You must outline the grounds on which you believe the decision should be appealed in the application. The filing fee for an application for leave to appeal or appeal for this matter is $379.50. The filing fee must be paid before the application proceeds any further. This application -- 3 of 8 -- 4 must be filed within 28 days of the decision being made or 28 days after reasons have been provided. [9] Ms Farren did not request reasons for the Correction Decision, therefore the time limit for filing the application for leave to appeal or appeal is twenty-eight days from 23 October 2023, when notice of the Decision was sent, being 20 November 2023. [10] Despite the information provided on 11 November 2023 about relevant time limits, Ms Farren did not file her application for leave to appeal to appeal the Decision until 18 January 2024. [11] The grounds of appeal are identified in Part C as follows: I would suffer a substantial injustice if the proceeding was not reopened due to The Agency not being held accountable for not providing rental credits as detailed in the Residential Tenancy and Rooming Accommodation Act 2008 following the Brisbane floods for the time the home was inaccessible and the following mould issues that ensued which I’m still recovering from. I would really appreciate your help in finalising this case and justice for me with a telephone hearing. [12] In Part D of the application for leave to appeal or appeal, which seeks information about the “Orders Sought” the following was written: Reopen case. Extension of time [13] 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: (a) 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 (b) The day the person is given written reasons for the decision being appealed against. [14] 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, subject to 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. [15] The factors to be considered in the exercise of a discretion to extend time include: (a) whether a satisfactory explanation or good reason is shown for the delay in taking the relevant step; (b) the likelihood of success of the proceeding if leave to commence it is granted; (c) any prejudice to other parties; (d) the length of the delay, noting that a short delay is usually easier to excuse than a lengthy one; and -- 4 of 8 -- 5 (e) 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.1 [16] Accordingly, on 25 January 2024 the Appeal Tribunal issued directions requiring the Ms Farren to file an application for an extension of time and written submissions addressing: (a) the reasons for the delay in filing of the application for leave to appeal or appeal; (b) any prejudice to the respondent if an extension is granted; (c) why the application for leave to appeal or appeal has merit; (d) why it is in the interest of justice that an extension of time be granted; and (e) any other relevant matter. [17] The due date for filing was 15 February 2024. [18] Ms Farren sought legal assistance with respect to these matters, received by her on 15 February 2024. She did not file an application to extend time as directed but sent an email on 29 February 2024 in which she makes submissions on the point. [19] Consistent with the Tribuna’s objects of informality, efficiency, and fairness,2 I accepted the email as Ms Farren’s request to extend time to file her application for leave to appeal or appeal, despite its informality and non-compliance with directions as to form and timing. Whether a satisfactory explanation or good reason is shown for the delay in taking the relevant step [20] Ms Farren says: “there was confusion surrounding documents sent by QCAT” and “seeking appropriate advice to ensure compliance further extended the time required for the preparation of the application” having regard to the “complexities involved in navigating the procedural requirements” explains the delay. [21] This explanation does not favour the granting of an extension of time because the emailed correspondence from Registry on 11 November 2023 clearly set out Ms Farren’s appeal rights and the time limits for lodging the application. [22] She was still within time, by nine days, when that advice was given. The application itself is dated 29 November 2023, indicating that Ms Farren prepared it within a short time of receiving the Registry advice, but she did not file it until almost two months later, on 18 January 2024 and this further delay has not been explained. The length of the delay [23] The delay in filing the application is almost two months – it was due on 20 November 2023 and was filed on 18 January 2024. [24] This factor does not favour the granting of an extension. 1 Crime and Misconduct Commission v Chapman [2011] QCAT 229, at [9]-[10]; Body Corporate for No 9 Port Douglas Road v McEvoy [2011] QCATA 292 at [12]. 2 Section 3, QCAT Act. -- 5 of 8 -- 6 The likelihood of success of the proceeding if leave to commence it is granted. [25] The Correction Decision was made on Ms Farren’s Application for reopening, correction renewal or amendment filed 12 September 2023 upon which Ms Farren had ticked the ‘Application to correct a decision’ option rather than the reopening option. [26] Section 135 of the QCAT Act only permits corrections in the case of (a) a clerical mistake; or (b) an error arising from an accidental slip or omission; or (c) a material miscalculation of figures or a material mistake in the description of a matter, person or thing mentioned in the decision; or (d) a defect of form. [27] That Ms Farren failed to attend the hearing because she wanted to attend by telephone, where she did not ensure that her request to attend by telephone had uploaded and been approved does not fall into those categories. The application to correct might therefore have been dismissed as an application to correct on that basis. [28] Section 138 of the QCAT Act permits a reopening of proceedings which have been heard and decided by the tribunal if: (a) the party did not appear at the hearing of the proceeding and had a reasonable excuse for not attending the hearing; or (b) the party would suffer a substantial injustice if the proceeding was not reopened because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard and decided. [29] Ms Farren’s grounds for ‘correction’ were more properly reopening grounds because her location interstate and the technical difficulty she had uploading her form may have amounted to a reasonable excuse for failing to attend the hearing. [30] This appears to be why the learned Adjudicator, although somewhat clumsily, seems to have recast the application to correct as an application to reopen and decided it on that basis. If the Correction Decision was in fact a decision to refuse a reopening, then the decision is not able to be appealed per section 139(5) of the QCAT Act. [31] There is no merit therefore in an application for leave to appeal or appeal proceeding with respect to the Correction Decision, whether it is a decision on an application to correct or an application to reopen. [32] Although not the subject of the application for leave to appeal or appeal, I observe further that there appears to have been no merit in the substantive application because: (a) Sections 414A to 417 of the RTRAA provide for how tenancy applications are made, including how “urgent’ and “non urgent” applications are dealt with. (b) An “urgent” application is defined in section 415 but does not include applications for rent reduction under section 94 and for compensation for breach under sections 419 and 420. (c) The RTA dispute resolution process must have been completed (not merely requested) before a non-urgent application is made to the Tribunal and there is -- 6 of 8 -- 7 no evidence of a Notice of Unresolved Dispute having been filed in the proceeding to evidence this. (d) Regardless: (i) A section 94 claim for rent reduction can only be made during the currency of the tenancy. This claim was filed after the tenancy ended and therefore could not have been considered by the Tribunal below. (ii) A claim for compensation for breach must be filed within six months of the applicant (in this case Ms Farren) becoming aware of the breach. Time stops when the application for dispute resolution is filed (per section 416 of the RTRAA). The flooding event occurred in February 2022. Ms Farren became aware of the breaches relied upon and alleged by Ms Farren to base a compensation claim between February 2022 and May 2022. Her compensation application was not filed until 31 March 2023, which is more than six months after Ms Farren became aware of the breach. As mentioned, it is not known whether, and if so, when, the parties engaged in dispute resolution, but given the different dispute resolution references numbers allocated to the bond claim and the later compensation claim, I infer that dispute resolution for Ms Farren’s request for dispute resolution for the compensation claim took place after the bond claim was decided in December 2022. This is more than six months after Ms Farren first became aware of the breach, and, therefore, the compensation claim also appears to have been made out of time. (e) On the information before the Appeal Tribunal MCDQ963-23 was filed out of time, and relief would not have been given on that basis. This factor does not favour the granting of an extension of time. Any prejudice to other parties [33] As mentioned, the flooding event occurred in February 2022, now two years past. [34] Ms Farren did not attend her hearing, nor did she check that her application to appear by phone had been properly filed. In any event, an application for remote attendance does not mean a party has been permitted to attend by telephone. It was not for Ms Farren to simply assume that her request would be granted. [35] MCDQ963-23 was not filed until 31 March 2023, between eleven and fourteen months after Ms Farren became aware of the breach. The delay prejudices the respondent. In Brisbane South Regional Health Authority v Taylor,3 McHugh J observed that “where there is delay the whole quality of justice deteriorates”, citing a United States Supreme Court decision in Barker v Wingo,4 pointed out “what is been forgotten can rarely be shown”. [36] This factor does not favour the granting of an extension of time. 3 (1986) 186 CLR 541 at page 551. 4 407 U.S. 514 (1972). -- 7 of 8 -- 8 Overall, whether it is in the interests of justice to grant the extension [37] Nothing in the evidence before the Appeal Tribunal supports a finding that the interests of justice would be served by granting an extension of time. [38] On balance, it is not in the interests of justice to grant the extension of time and for that reason, it is refused. Dismissal of application for leave to appeal or appeal [39] As the extension of time has been refused, the application for leave to appeal or appeal cannot proceed and is therefore dismissed, pursuant to section 47 of the QCAT Act, on the basis that is it misconceived and lacking in substance. -- 8 of 8 --