Csorba v Petka Investments Pty Ltd [2024] QCATA 12

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Csorba v Petka Investments Pty Ltd [2024] QCATA 12 PARTIES: KAROLY CSORBA (applicant) V PETKA INVESTMENTS PTY LTD (respondent) APPLICATION NO/S: APL299-23 MATTER TYPE: Appeals DECISION MADE: 5 February 2024 REASONS DELIVERED ON: 16 February 2024 HEARD AT: Brisbane DECISION OF: Member Lember ORDERS: The application for leave to appeal or appeal is dismissed, pursuant to section 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), based on non-compliance with the Appeal Tribunal’s directions. CATCHWORDS: APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – DISMISSAL OF PROCEEDINGS – where applicant non-compliant with directions to serve proceedings - where extension of time to comply not sought but given – where no reasonable excuse for non-compliance - where application for leave to appeal or appeal dismissed pursuant to section 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 97 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 29, s 32, s 45, s 48, s 62 Abdullahi v Taxi Council of Queensland Incorporated & Anor [2011] QCAT 374 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69 Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226 Luscombe v Russell [2013] QCAT 53 -- 1 of 7 -- 2 Miles v Senior [2012] QCAT 468 Peter Douglas Fleming v Gladstone Regional Council [2021] QCAT 432 Robertson v Airstrike Industrial Pty Ltd [2011] QCAT 625 Schoch v Queensland Building and Construction Commission [2019] QCAT 172 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). REASONS FOR DECISION What is the application about? [1] Mr Csorba seeks leave to appeal1 a decision made by the Tribunal below on 21 August 2023 to dismiss his application in a minor civil dispute – residential tenancy dispute (MCD) that sought orders about overpaid rent. [2] The MCD proceeding was adjourned several times before finally being heard on 21 August 2023, to give the parties an opportunity to submit further evidence. [3] Having listened to the hearing audio, I observe that the learned Adjudicator spent considerable time with Mr Csorba and with Ms Smith (for the respondent) reviewing the tenancy rental ledger and an accompanying spreadsheet that summarised it. [4] Mr Csorba had an opportunity during the adjourned periods to obtain bank statements evidencing rent paid by him, that he said was overpaid. He did not produce bank statements, but, in any event, agreed in the hearing that the respondent’s tenancy rental ledger correctly receipted all rent payments he had made. [5] Mr Csorba has occupied the tenancy since 2015. The dispute arose as to whether the “paid to” dates and “rent credits” recorded in the respondent’s ledger were correct, complicated by Mr Csorba’s habit of overpaying rent, or paying in random amounts (rather than the fixed weekly sum payable under the tenancy agreement). [6] Ultimately, after considerable discussion and review of the ledger and the spreadsheet, the Tribunal below dismissed Mr Csorba’s application, finding that he had not, on balance, established that there were errors made in receipting his payments or in the tenancy rental ledger. In the absence of bank statements, the learned Adjudicator expressed that she simply could not identify errors to find in Mr Csorba’s favour. [7] The Appeal Tribunal made the following relevant directions to progress Mr Csorba’s application for leave to appeal or appeal: (a) 22 September 2023 (on the papers): Directions requiring, among other things, that Mr Csorba file an affidavit of service or acknowledgment from the respondent confirming service of the application for leave to appeal or appeal upon them, by 13 October 2023. This direction was not complied with. (b) 2 January 2024 (on the papers): Directions extending the time for Mr Csorba to comply with the directions made 22 September 2023 to confirm service of the application for leave to appeal or appeal upon the respondent, by 23 January 1 Application for leave to appeal or appeal filed 18 September 2023. -- 2 of 7 -- 3 2024. These directions were accompanied by a warning that if Mr Csorba did not comply by the due date, without reasonable excuse, the application for leave to appeal or appeal may be dismissed without further notice to the parties. This direction was not complied with. [8] The tribunal can dismiss a proceeding out if the tribunal considers a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including by not complying with a tribunal order or direction without reasonable excuse.2 [9] On 5 February 2024, I dismissed the application for leave to appeal or appeal pursuant to section 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). Mr Csorba has requested reasons for the dismissal, and they now follow. Legislative framework [10] Parties are expected to take active steps to engage in3 and are obliged to act quickly in any dealing relevant to the proceeding.4 [11] Section 48 of the QCAT Act permits the tribunal to dismiss or struck out a proceeding if it considers a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding. [12] In contemplating a dismissal under section 48 the tribunal must consider: (a) the extent to which the party causing the disadvantage is familiar with the tribunal’s practices and procedures; (b) the capacity of the party causing the disadvantage to understand, and act on, the tribunal’s orders and directions; and (c) whether the party causing the disadvantage is acting deliberately.5 [13] To “cause disadvantage” includes not complying with a tribunal order or direction without reasonable excuse.6 [14] In other section 48 matters before it, the tribunal has relevantly stated that: (a) Section 48 is to be construed in the light of the statutory objects under the QCAT Act, which emphasise informality, the minimisation of costs to the parties, and expediting proceedings so far as is consistent with achieving justice.7 (b) The unnecessary disadvantage must be of sufficient gravity to justify dismissal or a final decision.8 (c) The fact that a claim has significant merit, will not preclude an exercise of section 48 discretion where a party has been recalcitrant or delinquent in their conduct of the proceeding to cause unnecessary disadvantage.9 Matters relating 2 Section 48(1)(a), Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). 3 Abdullahi v Taxi Council of Queensland Incorporated & Anor [2011] QCAT 374 at [26]. 4 Section 45, QCAT Act. 5 Section 48(3), ibid. 6 Section 48(1)(a), ibid. 7 Miles v Senior [2014] QCAT 468. 8 Schoch v Queensland Building and Construction Commission [2019] QCAT 172. 9 Ibid. -- 3 of 7 -- 4 to the substantive merits of a claim may in fact be irrelevant to a section 48 consideration.10 (d) In determining a section 48 application in accordance with the tribunal’s obligations and objects under the QCAT Act, a balance should be struck between the need for quick procedure and the obligation to deal with matters in a way that is fair and accessible.11 [15] In all proceedings the tribunal must deal with matters in a way that is accessible, fair, just, economical, informal, and quick12 and, to that end, section 4 of the Act requires the tribunal, among other things, to: (a) encourage the early and economical resolution of disputes before the tribunal;13 and (b) ensure proceedings are conducted in an informal way that minimises costs to the parties and is as quick as is consistent with achieving justice.14 Discussion [16] It is not uncommon, in a self-represented jurisdiction that parties require additional time to comply, and assistance on how to comply with tribunal directions. The tribunal in fact has positive obligations under section 29 of the QCAT Act to take all reasonable steps to: (a) ensure each party to a proceeding understands: (i) the practices and procedures of the tribunal; and (ii) the nature of assertions made in the proceeding and the legal implications of the assertions; and (iii) any decision of the tribunal relating to the proceeding; and (b) ensure proceedings are conducted in a way that recognises and is responsive to the needs of a party to, or witness in, the proceeding who is a child or a person with impaired capacity or a physical disability. [17] The steps that can be taken for ensuring a person understands something include explaining the matters to the person. That is why the directions are made, and cautions given, to assist the parties to conduct their case. [18] However, this assistance must be limited as to resources and time - it is not for the tribunal to conduct or to perfect the applicant’s case. It can only guide the parties as to what is required and, in this case, Mr Csorba is more than three months overdue in complying with directions to serve. Service cannot be implied as the respondent has not filed any material in the proceeding despite being directed to do so: they have not engaged at all, whereas they were active participants in the MCD proceeding. [19] Mr Csorba has not complied with tribunal directions or offered an excuse for his non- compliance. 10 Robertson v Airstrike Industrial Pty Ltd [2011] QCAT 625. 11 Luscombe v Russell [2013] QCAT 53 12 Section 3(b) of the QCAT Act. 13 Section 4(b), ibid. 14 Section 4(c), ibid. -- 4 of 7 -- 5 [20] In Peter Douglas Fleming v Gladstone Regional Council15 the tribunal dismissed an application for review pursuant to section 48 of the QCAT in circumstances where the applicant first sought two extensions of time for the filing of submission on a strike out application (which were granted) and then failed to comply with two further opportunities given as directions to file material. Member Browne was satisfied that the applicant had failed to provide reasonable excuse for his non-compliance with directions, that he had failed to take care in his dealings with the tribunal16 and that he did not take necessary steps to progress his application.17 [21] Although not required to, in fairness to Mr Csorba I considered whether there is merit in Mr Csorba’s application and find that he does not have a good arguable case on appeal because: (a) Mr Csorba did not dispute the accuracy of the tenancy ledger with respect to receipted payments made by him. In any event, Mr Csorba did not produce bank statements that would establish that the amounts receipted to his tenancy ledger were not accurate. (b) Section 97 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) provides that the rent payable under a residential tenancy agreement accumulates from day to day and is to be appropriately apportioned. (c) According to the tenancy rental ledger, where Mr Csorba overpaid his rent, the overpayment was reflected in the paid to date (once the overpayment added up to a full day) and as a rent credit (until it added up to a full day). The learned Adjudicator was satisfied that the rent payments were dealt with appropriately in the ledger and attempted to explain to Mr Csorba that the daily apportionment of rent had occurred correctly, but Mr Csorba did not seem to understand. (d) For example, Mr Csorba submitted that: 15 [2021] QCAT 432. 16 Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69 at [9], citing Aon, ibid. 17 Ibid, at [21]. -- 5 of 7 -- 6 (e) Mr Csorba said that between 26 April 2020, and 27 October 2021 his weekly rent was $370, however, he was paying $390, amounting to an overpayment of $20 per week, or $80 per month (at four weeks per month). (f) Therefore, over 18 months, Mr Csorba believes that $80 x 18 = $1,440 was overpaid. (g) However, there are more than four weeks to most months, and more than 48 weeks (4 weeks x 12 months) in a year. This is why section 97 apportions rent on a daily basis. (h) There are 550 days between and including 26 April 2020 and 27 October 2021. At $370.00 per week, apportioned daily, the rent payable for that period is $29,071.43. If Mr Csorba says he overpaid $80 per month at $10 per week x 4 weeks per month, by paying $1,560 per month over 18 months, the total paid by him was $1,560 x 18 = $28,080.00. This means that Mr Csorba was not paying ahead, but, rather, falling behind. In short, his belief as to missing or overpaid rent is based upon a mathematical error and misunderstanding the application of section 97. To what extent is Mr Csorba familiar with the tribunal’s practices and procedures? [22] I acknowledge that Mr Csorba is a layperson and that the Registry was responsible for serving documents in the MCD proceeding, whereas in this proceeding Mr Csorba was required to do so. [23] However, Mr Csorba did comply with a direction also made on 22 September 2023 to file his submissions on the appeal itself. It is not known whether he complied with the directed obligation to serve those submissions on the respondent, as his email communications were only to the Tribunal and were not copied to the respondent. [24] Whilst Mr Csorba may not be familiar with tribunal practices and procedures due to any prior dealings, I am satisfied in these proceedings that he was sufficiently familiar with tribunal practices and procedures in that he did comply with the direction to file, so as not to excuse his non-compliance with the direction to serve. Does Mr Csorba have capacity to understand, and act on, the tribunal’s orders and directions? [25] Mr Csorba has demonstrated capacity to understand and to act on the Tribunal’s directions. Is Ms Csorba acting deliberately? [26] It not clear whether Mr Csorba is acting deliberately, except to say that intent might be implied from his election not to copy the respondent on communication to the Tribunal and in his election to selectively comply with Tribunal directions. Decision [27] Where Mr Csorba has: -- 6 of 7 -- 7 (a) failed repeatedly and, I infer, deliberately to comply with tribunal directions to serve the application for leave to appeal or appeal upon the respondent, or to act quickly in any substantive dealing relevant to the proceeding;18 (b) not offered a reasonable excuse for failing to comply with tribunal directions; (c) been afforded procedural fairness by having received from the tribunal an extended time to comply; (d) established capacity to prepare and file documents and submissions; and (e) no good arguable case on appeal, I find that that Mr Csorba has unnecessarily disadvantaged the respondents and the tribunal by unnecessarily delaying the proceeding and by failing to comply with tribunal directions. [28] Whilst formality is not part of the tribunal’s mandate, the tribunal nonetheless need be mindful that their resources serve the public as a whole, not just the parties to proceedings before it. Justice Wilson said just this in Creek v Raine & Horne Real Estate Mossman:19 The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, “… the public as a whole, not merely the parties to the proceedings”.20 [29] The application for leave to appeal or appeal cannot progress unless the respondent is served and if it were to remain on foot despite the failure to serve, the tribunal would not be meeting its mandate to conduct matters fairly, quickly, and economically, nor to use its resources appropriately for the public as a whole. [30] I am satisfied for those reasons that the application for leave to appeal or appeal should be dismissed pursuant to section 48 of the QCAT Act. 18 Section 45, QCAT Act. 19 [2011] QCATA 226 at paragraph [13]. 20 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 217. -- 7 of 7 --