Dunks v Bowman [2011] QCATA 343

CITATION: Dunks v Bowman [2011] QCATA 343 PARTIES: Karen Margaret Dunks v Beverley Anne Bowman APPLICATION NUMBER: APL409-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Peta Stilgoe, Member DELIVERED ON: 19 December 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. The application for an oral hearing of Ms Dunks’ application for leave to appeal is refused. 2. Ms Dunks will file in the registry one copy and deliver to Ms Bowman one copy of all written submissions in support of the application for leave to appeal and any further submissions in support of the appeal that Ms Dunks wishes to rely on by 30 January 2012. CATCHWORDS: APPLICATION FOR ORAL HEARING – where applicant represented by a third party – where applicant says that material is complex – whether grounds for oral hearing Queensland Civil and Administrative Tribunal Act 2009, ss 28(2), 28(3)(d), 137, 138 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 APPEARANCES and REPRESENTATION (if any): This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009. -- 1 of 3 -- 2 REASONS FOR DECISION [1] Ms Dunks was a tenant in a house owned by Ms Bowman. Ms Dunks vacated the house and Ms Bowman brought an application for recovery of rent arrears, cleaning costs and excess water charges. The learned Adjudicator refused Ms Dunks’ application to appear by a representative and determined Ms Bowman’s application without Ms Dunks being present. Ms Dunks has filed an application for leave to appeal. She wants that application determined by an oral hearing, rather than on the papers. [2] The tribunal may, if appropriate, conduct all or part of a proceeding entirely on the basis of documents, without the parties appearing at an oral hearing.1 In conducting a proceeding, the tribunal must act fairly2, but with as little formality and technicality and with as much speed as a proper consideration of the matters before the tribunal permits.3 In most applications for leave to appeal, the balance between fairness and speed is achieved by the application being determined on the papers. [3] Ms Dunks, by her agent Mr Von Schrader, has requested an oral hearing because: “…evidence I wish to present on behalf of the Respondent in this matter is complex and requires detailed clarification and elaboration at various stages. Some of the evidence on face value may appear to be of no relevance whatsoever but again that is where the clarification and/or elaboration comes into the picture.” [4] It appears that Ms Dunks wants to rely on evidence that was not before the learned Adjudicator. The appeal tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined4. Ordinarily, an applicant for leave to adduce such evidence must satisfy each of the following tests: a) The evidence could not have been obtained with reasonable diligence for use at the trial; b) The evidence, if allowed, would probably have an important impact on the result of the case (although it need not be demonstrated that it would be decisive); and c) That the evidence is credible though it need not be incontrovertible.5 [5] An application for leave to appeal is not, and should not be, an attempt to shore up the deficiencies of a party’s case at the initial hearing. Ms Dunks has provided no explanation as to why this material was not available at the hearing. [6] I do not see how a defence to a claim for rental arrears can be complex or required detailed clarification. I have read the affidavits Ms Dunks filed after the learned Adjudicator’s determination and my view about the 1 Queensland Civil and Administrative Tribunal Act 2009, s 32(2). 2 QCAT Act, s 28(2). 3 QCAT Act, s 28(3)(d). 4 Sections 137 and 138 QCAT Act. 5 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408. -- 2 of 3 -- 3 apparent complexity is not changed. I cannot see, and Ms Dunks has not explained to my satisfaction, why an oral hearing is necessary. There will be no witnesses to give evidence or to be cross-examined. [7] While the tribunal may be reluctant to allow leave for representation in relation to oral hearings, it often encourages parties to seek assistance in the preparation of their submissions. That form of assistance from Mr Von Schrader would meet all of the tribunal’s imperatives of fairness, informality and speedy process. It seems to me that Mr Von Schrader can better assist Ms Dunks if the submissions are in writing as he will be able to provide the tribunal with detailed, written submissions with the luxury of time for refinement and reflection, unlike the pressured atmosphere of a hearing. [8] The application for an oral hearing of the application for leave to appeal is refused. [9] Ms Dunks will file in the registry one copy and deliver to Ms Bowman one copy of all written submissions in support of the application for leave to appeal and any further submissions in support of the appeal that Ms Dunks wishes to rely on by 30 January 2012. -- 3 of 3 --