Dunks v Bowman [2012] QCATA 122

CITATION: Dunks v Bowman [2012] QCATA 122 PARTIES: Karen Margaret Dunks (Applicant/Appellant) v Beverley Anne Bowman (Respondent) APPLICATION NUMBER: APL409-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member DELIVERED ON: 17 July 2012 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal is refused. CATCHWORDS: Residential Tenancy – whether denial of procedural fairness – where arrears of rent – where compensation assessed Queensland Civil and Administrative Tribunal Act 2009, s 142(3) House v R (1936) 55 CLR 499 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Cachia v Grech [2009] NSWCA 232 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 389 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). -- 1 of 4 -- 2 REASONS FOR DECISION [1] Ms Bowman and Ms Dunks entered into a tenancy agreement for the rental of premises at Runaway Bay. The weekly rental was $700 per week. Ms Dunks paid a bond of $2,800 to the Rental Bond Authority. The tenancy agreement commenced on 10 January 2010 and was to expire on 8 January 2011. [2] On 10 October 2011, Ms Dunks left the property with $3,100 in arrears of rent. In addition, Ms Bowman claims that the property was in a state of disrepair. [3] On 2 November 2011, Ms Bowman commenced a proceeding in the minor civil disputes jurisdiction of the Tribunal to recover the rental arrears together with $1,634 for cleaning, including the pool, and $3,170.95 for excess water. [4] When the proceeding came on for hearing before a Tribunal Adjudicator on 15 November 2011, Ms Dunks did not attend but was represented by an agent. She had filed an application for leave to be represented on 11 November 2011 but a decision had not been made. Therefore, the learned Adjudicator decided to hear the application prior to the commencement of the hearing. [5] The learned Adjudicator heard submissions on the application from Ms Dunk’s agent and after some considerable discussion she refused her representation. She did so on the basis that despite the agent telling the Tribunal that Ms Dunks’ eldest daughter had a serious medical complication the previous evening, there was no evidence to support that. Ms Dunks did not write to the Tribunal to explain the situation nor was there any other evidence to justify her absence. [6] The learned Adjudicator then proceeded to hear the application in the absence of Ms Dunks. The Tribunal ordered that Ms Dunks pay the totality of the claim in the sum of $7,904.95 to Ms Bowman. From that decision, Ms Dunks has filed an application for leave to appeal or appeal. Leave to appeal is necessary for an appeal from a minor civil disputes decision. [7] The complaint in the notice of appeal is that Ms Dunks was denied procedural fairness in being denied representation at the initial hearing. It is contended that her agent was not able to give a complete explanation as to why she could not attend the hearing and was denied the opportunity to present evidence. [8] In dealing with that issue, it is evident from the recording of the hearing that, although the learned Adjudicator was initially reluctant to hear from Ms Dunks’ agent, she did in fact give him a full opportunity to explain in detail why Ms Dunks was not able to attend. -- 2 of 4 -- 3 [9] Section 43 of the QCAT Act provides that the parties must represent themselves unless the interests of justice require otherwise. The Tribunal therefore has a discretion to permit representation. The circumstances in which representation might be permitted are set out in subsection 3, which includes relevantly here, if the matter involves a complex question of law, the other party is represented, or the parties have agreed to a party being represented. It is immediately apparent that the circumstances of this case did not meet any the criteria set out in subsection 3. The issues in dispute were not complex, Ms Bowman did not have representation and she opposed representation for Ms Dunks. [10] It is arguable that given Ms Dunks’ particular circumstances on the night before the hearing that the interests of justice did require that leave be granted to her agent to represent her, however the learned Tribunal Adjudicator considered all those matters and in the exercise of her discretion, she decided to not permit representation. The exercise of discretion will not be interfered with lightly unless some error can be readily identified.1 It is not enough that the Appeal Tribunal might have come to a different decision in considering such an application. [11] Therefore on this ground alone, leave to appeal must be refused because no error of law has been identified. [12] With respect to the balance of the appeal, in her submission, Ms Dunks sets out in detail her response to the various claims made by Ms Bowman. Her response is evidentiary in nature and does not address the fundamental principles upon which leave to appeal will be granted. [13] The question whether or not leave to appeal should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?2 Is there a reasonable prospect that the applicant will obtain substantive relief?3 Is leave necessary to correct a substantial injustice to the applicant caused by some error?4 Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?5 [14] Here there is no dispute that the rent was in arrears and this alone is a valid reason for terminating the tenancy agreement. No error has been established and therefore, on this point leave to appeal must be refused. [15] As for the question of compensation, Ms Bowman produced evidence to justify her claim for compensation. This included details of excess water usage, replacement of the toilet unit, an invoice from UPn 60 Plumbing and Swimmart for pool maintenance. Once again the learned Adjudicator, 1 House v R (1936) 55 CLR 499 at 500. 2 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 3 Cachia v Grech [2009] NSWCA 232 at 2. 4 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 5 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580. -- 3 of 4 -- 4 as she was entitled to do, accepted the evidence of Ms Bowman in respect of these matters. [16] The conclusions reached by the learned Adjudicator with respect to arrears of rent and compensation were open on the evidence and no error has been demonstrated nor is any apparent. [17] Therefore, as no basis has been established to warrant a grant of leave, it is refused. -- 4 of 4 --