Cameron v Neale and Anor [2011] QCATA 350

CITATION: Cameron v Neale and Anor [2011] QCATA 350 PARTIES: Miss Jessica Ann Cameron v Miss Fiona Neale Miss Elissa Smith APPLICATION NUMBER: APL153-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member DELIVERED ON: 6 June 2011 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal refused. CATCHWORDS: Minor Civil Dispute – residential tenancy – whether applicant aware of hearing date – whether substantial issue requiring further determination Queensland Civil and Administrative Tribunal Act 2009, s 142(3) APPEARANCES and REPRESENTATION (if any): This matter was heard on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] The Applicant and both Respondents shared rental premises at 21/82 Russel Terrace at Indooroopilly. The Tenancy Agreement was between Miss Cameron and the Lessor. Miss Neale and Miss Smith came into the property after the Residential Tenancy Agreement had been entered into and all three lived together for some time. [2] Miss Cameron vacated the property on 8 August 2010 with rent paid to 23 July 2010. Ultimately the tenancy came to an end. -- 1 of 3 -- 2 [3] Miss Neale and Miss Smith contended that Miss Cameron owed them $520.00 for arrears of rent under their mutual agreement. [4] To recover the rent, the Respondents commenced a Minor Civil Dispute Residential Tenancy proceeding in QCAT on 28 September 2010. Miss Cameron did not attend the Mediation organised by the Residential Tenancy Authority and the proceeding then went to a hearing. [5] In the usual way, Notices of Hearing were sent to the parties and a certificate of service to that affect is on the minor civil dispute file. The Notice of Hearing which was posted on 30 September 2010 was sent to Miss Cameron at the Russel Terrace address, that being her last known address which is also noted on the application form. A hearing was conducted on 12 October 2010 but Miss Cameron did not attend. She claims she did not receive a copy of the Notice of Hearing and was unaware that the application was going to proceed to a hearing on 12 October. However, she was aware of the proceeding generally having been contacted the Tribunal by email on 30 September advising her that the matter was going to proceed to a hearing. It is not clear from the email correspondence on the file whether she conveyed her new address to the Tribunal but, it seems not. [6] What is clear, is that the Notice of Hearing was not returned to the Tribunal. One can then reasonably suppose that Miss Cameron would have left a forwarding address and mail would have been forwarded on. Had that not been the case, it most certainly would have been returned to the Tribunal. [7] On 12 October 2010 the transcript of the hearing reveals that the learned Adjudicator considered the background to this dispute, was aware that Miss Cameron had not contacted the Tribunal and the service had been proved to his satisfaction. He had reservations about the bond, but a facsimile from the property agent, First National Real Estate Toowong confirmed that the bond monies should be paid out to the Respondents. The learned Tribunal Adjudicator was satisfied on the facts before him, that Miss Cameron did owe the rent claimed. [8] As this is an appeal from a decision in the Minor Civil Dispute Jurisdiction, leave to appeal is necessary1. Leave will only be granted if there is 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 1 QCAT Act, s 142(3). 2 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 3 Cachia v Grech [2009] NSWCA 232 at [13]. 4 QUYD Pty Ltd v Marvass Pty Ltd (supra). -- 2 of 3 -- 3 further argument, and a decision of the appellate court or tribunal, would be to the public advantage?5 [9] In so far as Miss Cameron complains that she has not had a fair hearing, the Notice of Hearing puts her on notice as to what will occur if she does not attend the hearing. It clearly states that if she did not attend, the Tribunal may hear and determine the matter in the absence of the party including making orders. It is appreciated that if she says she did not get the hearing notice, however, as I have pointed out, there is nothing to suggest that service was not properly effected when the matter come on for hearing. In circumstance where it is contended that a party could not attend the hearing because there was no notice of the hearing, the party should apply to re-open the proceeding on the ground set out in section 1376. [10] In those circumstances, the Tribunal Adjudicator was entitled to proceed in the absence of Miss Cameron7. [11] There is now a factual dispute about whether Miss Cameron owes the money claimed by the Respondents. Through the appeal process Miss Cameron is seeking to argue her case. It is not for this Tribunal to hear the matter afresh but to determine if there is any error on the part of the original decision maker. As no error has been identified to support the grant of leave to appeal the application must be refused. 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. 6 QCAT Act, division 7, ss 137 and 138. 7 QCAT Act, s 93. -- 3 of 3 --