Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226

CITATION: Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226 PARTIES: Kathleen Lily Creek (Applicant/Appellant) v Raine & Horne Real Estate Mossman (Respondent) APPLICATION NUMBER: APL075-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President DELIVERED ON: 31 August 2011 DELIVERED AT: Brisbane ORDERS MADE: Application for an extension of time to bring an application for leave to appeal is refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where the applicant‟s claim for the return of rental bond in the amount of $1,160 was dismissed as the applicant was not present at the hearing – where the applicant then filed an application to reopen the proceedings which was also dismissed – where the applicant now seeks leave to appeal – whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act 2009, ss 61, 139, 142 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, cited Cachia v Grech [2009] NSWCA 232, cited Fox v Percy (2003) 214 CLR 118, cited Gallagher v QBSA [2010] QCAT 383, cited Glenwood Properties Pty Ltd v Delmoss Pty -- 1 of 5 -- 2 Ltd [1986] 2 Qd R 388, cited Kioa v West (1985) 159 CLR 550, cited McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, cited QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41, cited APPEARANCES and REPRESENTATION (if any): This proceeding was heard and determined on the papers, without an oral hearing, pursuant to s 32(2) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] On 12 January 2011 Ms Creek‟s application about a residential tenancy dispute was heard by a Magistrate, sitting in QCAT‟s Minor Civil Disputes jurisdiction. [2] Ms Creek claimed the return of her rental bond of $1,160 and her costs for filing her application. The application was dismissed by the Magistrate at the request of the respondent, in the absence of Ms Creek at the hearing itself. [3] In essence, Ms Creek‟s claim revolved around cleaning charges claimed against her rental bond which, she says, are unnecessary and/or excessive. The charges were for $500 general cleaning, and $211 for carpet cleaning. [4] Ms Creek then filed an application to reopen the proceeding. A Magistrate also dismissed that application. [5] Ms Creek subsequently filed an application for leave to appeal and appeal, together with an application to extend the time limit for filing the application, on 28 February. Unhelpfully, her application does not indicate which decision she seeks to appeal but, given that a decision on a reopening application cannot be appealed,1 I assume that it is the decision of 12 January which is the subject of her application. [6] The grounds of appeal are to the effect that Ms Creek and her representative were both present at the Courthouse on the day of the hearing, but that neither of them heard the matter announced over the PA system, when it was called on for hearing. The suggestion seems to be that her representative was in the toilet and that this was why she did not hear the call. [7] There is no explanation offered as to why Ms Creek failed to hear the call, although other material subsequently provided by her suggests that she 1 QCAT Act, s 139(5). -- 2 of 5 -- 3 thought that „someone would come out and call for us all around the Courthouse building‟ as she asserts used to occur. These assertions imply that she was not personally present in the Courthouse at the time. [8] The tribunal file indicates that the names of the parties were called at 9.45am on 12 January, the matter having been listed at 9am. The transcript of the proceeding shows that the representative for Raine and Horne advised the presiding Magistrate during the hearing that she had seen Ms Creek walk outside. [9] As the application for leave to appeal was not filed within the required time under the QCAT Act, an application for extension of time to file the appeal has been made. It is said to be made on the basis of the „attached letter and substantiating documentation‟ with the application. A large bundle of documents are attached to the application, but none of them specifically addresses why Ms Creek says she should be granted an extension. Rather, the material is about the claim for cleaning expenses and the failure to appear at the hearing of the matter. [10] The Tribunal may extend time for the start of a proceeding.2 However, it will only exercise the discretion to do so in appropriate circumstances. In Gallagher v QBSA,3 the Tribunal identified matters relevant to an application for extension of time, including whether there is a reasonable explanation for the delay; whether there has been any prejudice suffered as a result of the delay in filing the application; whether the proposed claim has some merit; and whether it would be fair and equitable in all of the circumstances. A time limit cannot be extended if this would cause prejudice or detriment not able to be remedied by an order for costs or damages.4 [11] If an extension of time is granted to file the application, leave is also required by Ms Creek to appeal the decision under s 142(3)(a)(i) of the QCAT Act because the original decision involves a Minor Civil Dispute. [12] Leave to appeal will ordinarily be granted when a question of general importance upon which further argument and a decision of the Appeal Tribunal is to public advantage;5 there is a reasonably arguable case that the primary decision-maker made an error6 and there are reasonable prospects that the applicant would be granted orders in its favour;7 or to correct a substantial injustice to the applicant caused by error.8 The appeal process is not for giving parties another opportunity to present their case. It is essentially for correcting errors made by the Tribunal which heard the application. 2 QCAT Act, s 61. 3 [2010] QCAT 383, [43]. 4 QCAT Act, s 61(6). 5 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578 and 580. 6 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 7 Cachia v Grech [2009] NSWCA 232, [13]. 8 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. -- 3 of 5 -- 4 [13] 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‟.9 Finality in litigation is highly desirable, because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties.10 [14] The grounds of appeal relate to a failure of Ms Creek and her representative to realise the matter had been called for hearing. This potentially raises an issue of procedural fairness. A failure to observe procedural fairness or natural justice is an error of law. In all proceedings, the Tribunal must observe the rules of natural justice. [15] As Mason J (as his Honour then was) observed in Kioa v West,11 the requirements of procedural fairness are flexible, and must be adjusted to the statutory framework governing the Tribunal in question: What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject- matter, and the rules under which the decision-maker is acting: Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 552-3; National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 at 311, 319-321. In this respect the expression “procedural fairness” more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations … [16] This proceeding was listed for hearing before a Magistrate. On the day of the hearing, the matter was, it is acknowledged by Ms Creek, called over the PA system. The proceeding was then dealt with in the absence of Ms Creek and dismissed upon the request of the Raine and Horne. It is apparent that Ms Creek was given notice of the hearing, and afforded the opportunity to make her case before the Tribunal. She had a responsibility to act in her own interests. She failed to do so. She was afforded natural justice; she simply failed to act in her own interests. [17] On this basis, the grounds of appeal do not have merit and even if I was persuaded to extend the time for the application for leave to appeal to be made, I would not be inclined to grant leave. 9 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 217. 10 See Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Kirby and Gummow JJ. 11 (1985) 159 CLR 550 at 584-585. -- 4 of 5 -- 5 [18] Further, Ms Creek does not offer any reason or explanation for her delay in applying, despite providing a substantial amount of material. There is nothing in that material to suggest that it would be fair and equitable in all the circumstances to grant leave to extend the time for the making of the application for leave to appeal and appeal. Both applications are therefore dismissed. [19] Although it is unnecessary, given the decision I have made to dismiss the applications, it is appropriate to make some observations about the cleaning costs themselves. Ms Creek asserts that the premises were clean when she and her family left it after a six month tenancy. She also says that she received regular domestic cleaning services during the tenancy through HACC and that those cleaners could give evidence that the cleaning account claimed by Raine and Horne was not justified. However, statements from those persons were not provided. [20] The material filed by Raine and Horne asserts that the cleaning was necessary. It includes statements from the cleaners responsible for cleaning the premises about what was done and the state of the premises together with an exit report prepared by Raine and Horne‟s representative noting that a variety of items were not clean. Some photographs are provided. [21] On the basis of the material provided, there is no basis to consider that a rehearing of all issues would produce a different result. In other words, both leave to appeal and an appeal itself would be futile. [22] The application to extend time to bring an application for leave to appeal is refused. -- 5 of 5 --