Clare v Professionals Rentals [2014] QCATA 198

CITATION: Clare v Professionals Rentals [2014] QCATA 198 PARTIES: Kylie Clare (Applicant/Appellant) v Professionals Rentals (Respondent) APPLICATION NUMBER: APL199-14 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe, OAM DELIVERED ON: 28 July 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE –where tenant named on tenancy data base – where application to remove – where tenant did not appear at hearing - whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 138 Residential Tenancy and Rooming Accommodation Act 2008 (Qld) s 461 Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Pickering v McArthur [2005] QCA 294 Chambers v Jobling (1986) 7 NSWLR 1 APPEARANCES and REPRESENTATION (if any): 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). -- 1 of 3 -- 2 REASONS FOR DECISION [1] Ms Clare wanted her name removed from the TICA database. She filed an application but did not attend the hearing, so her application was dismissed. Ms Clare wants to appeal that decision. [2] Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.1 Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.2 [3] This application should really be an application to reopen the proceeding below. The tribunal will reopen a proceeding if the party did not appear at the hearing and has a reasonable excuse for not attending3. [4] Ms Clare submits that, at the time of the hearing, she was in a new job and her employer asked her to fill in for an employee going on leave. Ms Clare submits that she rang the tribunal to ask for an adjournment, but there is no evidence of this on file. Ms Clare could have asked to appear by telephone, but she did not. [5] The tribunal provided more than a week’s notice. Many parties before the tribunal are also in full time employment. Parties must make their own arrangements to appear before the tribunal, or seek an adjournment. The fact of employment, by itself, is not a reasonable excuse for not attending a hearing. [6] The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.4 An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.5 [7] The tribunal can order the removal of a party’s name from a tenancy database if6 the inclusion is unjust in the circumstances, having regard to the reasons for the listing, the tenant’s involvement in the acts or omissions giving rise to the reason for listing, the adverse consequences suffered by the tenant by the listing and any other relevant matter. Professionals Rentals submitted material to the tribunal showing that, after the lessor claimed the bond, Ms Clare owed about $1,200 in rent. Further, Professionals Rentals incurred costs of over $500 in restoring the tenancy after Ms Clare left. 1 QCAT Act s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294 at [3] per Keane JA. 3 QCAT Act s 138. 4 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126. 5 Chambers v Jobling (1986) 7 NSWLR 1 at 10. 6 Residential Tenancy and Rooming Accommodation Act 2008 (Qld) s 461. -- 2 of 3 -- 3 [8] Ms Clare says that, although she contacted Professionals Rentals on “numerous occasions” it has not provided any information to her about why she was listed. She says that she does not believe that she is liable for any debt. She says that the listing has left her, and her children, in a vulnerable position. Unfortunately, these matters were not before the learned Adjudicator, even though, three months before the hearing, Ms Clare knew that there was an allegation of an unpaid debt. [9] The evidence before the learned Adjudicator was capable of supporting a finding that Ms Clare should remain on the database. There is nothing in the transcript to persuade me that the learned Adjudicator should have taken a different view of the facts. [10] There is no reasonably arguable case that the learned Adjudicator was in error. Leave to appeal should be refused. -- 3 of 3 --