Addo v Cairns and District Regional Housing Corporation [2012] QCATA 105

CITATION: Addo v Cairns and District Regional Housing Corporation [2012] QCATA 105 PARTIES: Sarah Addo (Applicant) v Cairns and District Regional Housing Corporation (Respondent) APPLICATION NUMBER: APL410-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judge Kingham, Deputy President DELIVERED ON: 21 June 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The decision in Cairns Minor Civil Dispute Claim 468/11 is set aside. 4. The matter is remitted to the Tribunal for rehearing in Cairns on a date to be advised. CATCHWORDS: APPEAL – LEAVE TO APPEAL – RESIDENTIAL TENANCY MATTERS – ERROR OF LAW – where the landlord issued the tenant a Notice to Leave without Grounds – where the tenant claimed the Notice was retaliatory – where the tenant made an application to have the notice set aside – where the merits of the tenant’s application were not raised at the hearing – whether the Magistrate complied with section 29 of the QCAT Act – whether the application has a reasonable chance of success Queensland Civil and Administrative Tribunal Act 2009, ss 32, 143(3)(a)(i), 146 Residential Tenancies and Rooming -- 1 of 4 -- 2 Accommodation Act 2008, ss 291(3) 292(4), 292(2) Cachia v Grech [2009] NSWCA 232 Du Preez v Linda's Homes Pty Ltd [2010] QCATA 002 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Once Credit Pty Ltd v Alston [2011] QCATA 109 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Vacuum Oil Pty Co Ltd v Stockdale (1942) SR (NSW) 239 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009. REASONS FOR DECISION [1] The appellant Ms Addo has leased residential premises at Mount Sheridan from the respondent, Cairns and District Regional Housing Corporation, for over 9 years. On 23 August 2011 the respondent issued Ms Addo with a Notice to leave without grounds. Ms Addo brought an application to set aside that Notice, claiming that it was ‘retaliatory’ and therefore prohibited under the Residential Tenancies and Rooming Accommodation Act 2008.1 The application was heard in Cairns on 17 October 2011 and was subsequently dismissed by the learned Magistrate acting in his capacity as a QCAT Member. Ms Addo has applied for leave to appeal that decision.2 Background [2] At the hearing the learned Magistrate requested that Ms Addo make oral submissions in support of her application to have the notice set aside3, stating he was not persuaded by her written submissions. He did not identify whether he was not persuaded by the evidence presented by Ms Addo, or whether he did not believe that her claim as described fell within the definition of ‘retaliatory’ for the purposes of the Act. [3] Ms Addo attempted to respond to the learned Magistrate’s request with reference to her filed material. The learned Magistrate discouraged her from doing so, stating that that he was already familiar with the contents. 1 Section 291(3) Residential Tenancies and Rooming Accommodation Act 2008. 2 Section 143(3)(a)(i) Queensland Civil and Administrative Tribunal Act 2009. 3 Sections 292(4), 292(2) Residential Tenancies and Rooming Accommodation Act 2008. -- 2 of 4 -- 3 Ms Addo then requested that the learned Magistrate clarify what it was that he wished her to address him on, to which the he replied that she must ‘demonstrate an attempt that she had made to enforce a right’. [4] In light of this, Ms Addo attempted to put her case to the Tribunal but repeatedly stated that she was unsure of what he wished her to discuss. While the learned Magistrate did respond to Ms Addo’s questions, he did so by reading directly from the Act, or by repeating his initial explanation that she must demonstrate when she had sought to enforce a right. [5] Ms Addo was ultimately unable to respond to the learned Magistrate’s satisfaction and her application was dismissed. [6] Because this is an appeal from a Minor Civil Dispute, leave to appeal is required. 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? 4 Is there a reasonable prospect that the applicant will obtain substantive relief? 5 Is leave necessary to correct a substantial injustice to the applicant caused by some error? 6 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?7 [7] In this case I am persuaded leave to appeal should be granted. Grounds of appeal [8] Section 29 of the Queensland Civil and Administrative Tribunal Act 2009 obliges Members to take reasonable steps to ensure that parties understand the proceedings, the nature of assertions made, and the legal implications of those assertions.8 Particularly here, the learned Magistrate was obliged to take reasonable steps to ensure that Ms Addo understood the nature of the legal issues relevant to her application. [9] The material filed by Ms Addo in support of her application refers to her issuing breach notices to the lessor in the months prior to the subject Notice to Leave being issued by the Housing Corporation. Actions of that nature would generally fall within the meaning of ‘enforcing a right’. [10] Whether a Notice is ‘retaliatory’ also requires sufficient causal connection between the action of the tenant and the landlord’s issuing of a Notice.9 4 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 5 Cachia v Grech [2009] NSWCA 232 at 2. 6 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 7 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. 8 Once Credit Pty Ltd v Alston [2011] QCATA 109 as per Wilson J at 13. 9 Du Preez v Linda's Homes Pty Ltd [2010] QCATA 002. -- 3 of 4 -- 4 However, it is not clear whether the learned Magistrate turned his mind to this aspect of the application. [11] Arguably, Members of QCAT owe an obligation to parties not usually borne by Judges and Magistrates. As well as ensuring the parties understand the practices and procedures of the Tribunal, Members must ensure the parties understand the legal implications of assertions made in the proceedings. This is particularly relevant in this case, given the questions asked by the Magistrate were, in effect, assertions that her application failed to meet the legal criteria that applied to her application. [12] His Honour failed to explain why he considered that Ms Addo’s claim did not meet the legal criteria that he applied. Nor did he adequately explain to Ms Addo what he wanted her to address him on. He did not attempt to reframe his questions when she indicated that she did not understand his request and became terse with Ms Addo when she continued to express confusion. [13] Unfortunately, in this case, the learned Magistrate did not give Ms Addo a proper opportunity to put her case before the Tribunal. It is also not clear if his Honour properly considered the evidence placed before him on the merits of Ms Addo’s application. [14] In these circumstances, Ms Addo has been denied a fair hearing. Leave to appeal is granted and the appeal allowed. It is appropriate to remit the matter to the Tribunal for rehearing in Cairns at a time to be advised by the Registrar in due course.10 10 Section 146 Queensland Civil and Administrative Tribunal Act 2009. -- 4 of 4 --