Carrie v State of Queensland through the Department of Communities (Housing and Homelessness Services) [2010] QCATA 22

CITATION: Carrie v State of Queensland through the Department of Communities (Housing and Homelessness Services) [2010] QCATA 22 PARTIES: Kim Carrie (Applicant) v State of Queensland through the Department of Communities (Housing and Homelessness Services) (Respondent) APPLICATION NUMBER: APL029-10 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: President DELIVERED ON: 1 June 2010 DELIVERED AT: Brisbane ORDERS MADE: 1. The application for leave to appeal is refused 2. The stay ordered on 17 March 2010 is removed 3. Reinstate the Warrant for Possession in Minor Civil Dispute number 551/10 issued on 9 March 2010 so that it takes effect, in the same terms, from 1 June 2010 and remains in effect for 14 days thereafter CATCHWORDS : RESIDENTIAL TENANCIES – TERMINATION ORDER – where tenancy terminated on grounds for failure to leave – whether tenant had a reasonably arguable case PROCEDURAL FAIRNESS – ABSENCE OF TENANT AT HEARING – where tenant received notices for two different hearings – where tenant then received a further notice indicating that the first hearing was vacated – where tenant incorrectly assumed that second hearing was also vacated – whether -- 1 of 5 -- 2 proceeding tainted by lack of procedural fairness Residential Tenancies and Rooming Accommodation Act 2008, s 293 Queensland Civil and Administrative Tribunal Act 2009, ss 92, 93, 142(3) Queensland Civil and Administrative Tribunal Rules 2009, r 77 Atkinson v Consumer, Trader and Tenancy Tribunal of NSW [2010] NSWSC 426, applied Cachia v Grech [2009] NSWCA 232, applied Dixon v Commonwealth (1981) 3 ALD 289, cited Dobell v Blue Haven Pools and Spas Pty Ltd [2009] NSWCA 77, cited Kioa v West (1985) 159 CLR 550, cited Quyd Pty Ltd Marvass Pty Ltd [2009] 1 Qd R 41, applied APPEARANCES and REPRESENTATION (if any): APPLICANT : RESPONDENT: REASONS FOR DECISION [1] Ms Carrie has been a tenant in a house at Lawnton owned and managed by the Department of Communities (Housing and Homelessness Services) since 2001. The Department filed an application in QCAT on 12 February 2010 to terminate the tenancy agreement on the grounds of Ms Carrie’s alleged failure to leave, and repeated breaches for failure to pay rent. Breaches of that kind are dealt with in sections 293 and 299 of the Residential Tenancies and Rooming Accommodation Act 2008 (RTRA). [2] On 9 March 2010 a QCAT adjudicator, after a hearing which Ms Carrie did not attend, ordered that the tenancy agreement be terminated as of midnight on 10 March on the grounds of her failure to leave; and, that a warrant for possession take effect on the same day and remain operative until 6pm on 24 March. [3] On 15 March Ms Carrie applied for leave to appeal, and for a stay of the decision. On 17 March 2010 this Appeal Tribunal ordered that the decision be stayed until fourteen days after the determination of the application for leave. The order granting the stay was accompanied by a further order that the application for leave be determined by written submissions according to a timetable, and both parties have delivered and exchanged submissions. -- 2 of 5 -- 3 [4] Leave to appeal is a necessary preliminary step, because the original proceeding was a Minor Civil Dispute: Queensland Civil and Administrative Tribunal Act 2009, s 142(3) (QCAT Act). The Appeal Tribunal must be satisfied that there is a reasonably arguable case of error in the primary decision, and that the moving party has a reasonable prospect of obtaining substantive relief 1 . Ms Carrie has, for reasons which follow, failed to establish either. [5] In her reasons the learned Member terminated the tenancy on the grounds of failure to leave, accepting the Department’s evidence that Ms Carrie had been issued numerous notices to remedy breaches involving rental arrears during the time of her tenancy. That evidence is not, effectively, disputed by Ms Carrie although, as I understand her submissions, her arrears have been calculated on a rent figure which is too high. [6] Ms Carrie’s two grounds for leave to appeal are that the decision on 9 March was made in her absence and that this was due to a procedural fault of QCAT by sending her confusing and contradictory documents regarding two different hearings, on two different dates; and, that as result of her correspondence with the Minister of Community Services and Housing and Minister for Women, she assumed that issues surrounding her rental arrears had been resolved and therefore she ‘didn’t know of rent issues.’ [7] Section 92 of the QCAT Act requires that notice of the time and place of a hearing of a proceeding be given to each party in accordance with the Queensland Civil and Administrative Tribunal Rules 2009 (QCAT Rules). QCAT Rule 77 provides that a notice of hearing for a minor debt claim must be provided at least 7 days before the hearing. The Act permits QCAT to hear and decide a matter in the absence of a person if it is satisfied that person has received proper notice of the hearing pursuant to the Act, or the person cannot be found after reasonable enquiries have been made: s 93. [8] Ms Carrie and the Department of Communities were each sent, on 22 February 2010, compliant notices of a hearing to take place on 9 March 2010. Ms Carrie now alleges, however, that she also received another notice from QCAT for a different hearing dated 4 March; and then subsequently, she further received a notice from QCAT that the 4 March hearing had been dismissed. No notices to that effect, or any notice referring to 4 March, appear in the QCAT file but, for the sake of the appeal, it is appropriate to give Ms Carrie the benefit of the doubt. [9] Ms Carrie alleges that, after receipt of the notice about 4 March, she assumed that the hearing on 9 March was also dismissed. She does not, however, claim to have received any notice to that effect. [10] As there is no dispute that Ms Carrie received noticed of the 9 March hearing the question then arises whether, as a result of Ms Carrie’s 1 Cachia v Grech [2009] NSWCA 232; Quyd Pty Ltd Marvass Pty Ltd [2009] 1 Qd R 41 -- 3 of 5 -- 4 incorrect assumption that the 9 March hearing had been vacated, the QCAT adjudicator was entitled to hear the matter in her absence and make a ruling against her. [11] It is well understood that the rules of procedural fairness apply to proceedings before tribunals2 like QCAT. In circumstances where a proceeding has continued in the absence of one party it has been held that a breach of the principles of procedural fairness will occur where that absent party has not been afforded a reasonable opportunity to be heard, and respond to adverse findings made against them 3 . [12] It is also well accepted that a tribunal may, however, proceed in the absence of a party in circumstances where no satisfactory reason is provided for that party’s non-appearance, and where the absent party does not have a reasonably arguable case 4 . [13] As Allsop P said in Dobell v Blue Haven Pools and Spas Pty Ltd [2009] NSWCA 77 at 22, where an absent party has been regularly informed of the date and place of a hearing, there is no legal obligation on a tribunal to adjourn and commence a search either for that party or for an explanation of its absence. [14] In the present case, Ms Carrie’s decision not to attend on 9 March was entirely her own. She does not contend that she did anything to check with QCAT about the matter. She simply made, and acted upon, that mistaken assumption. The true situation is, then that she was afforded a reasonable opportunity to be heard at a notified hearing date on 9 March but, entirely on her own initiative, chose not to attend. [15] Again, affording her the benefit of the doubt, her contention that QCAT committed a procedural error by sending notices showing two dates is not a satisfactory reason for her non-attendance on 9 March. The alleged cancellation of one hearing does not give rise to any logical inference that another will not proceed. The assumption was, then, without a logical foundation. It was also made, of course, without the benefit of a simple enquiry by which Ms Carrie could have avoided her mistake. This is, it follows, a case in which she was regularly informed of a hearing date which she chose, without a logical or legal basis, not to attend. It is not a case in which that circumstance can be said to constitute procedural unfairness to her. [16] Ms Carrie’s second ground for leave to appeal, involving her correspondence with the Minister, also fails. At the hearing the Department of Communities presented evidence of correspondence between Ms Carrie and the Minister (for Community Services and Housing and Minister for Women) indicating that the issue of rental arrears had not been 2 Kioa v West (1985) 159 CLR 550 3 Dixon v Commonwealth (1981) 3 ALD 289 4 Atkinson v Consumer, Trader and Tenancy Tribunal of NSW [2010] NSWSC 426 ; See also Justice in Tribunals, Forbes, 3 rd Ed, para 12.11 -- 4 of 5 -- 5 resolved as Ms Carrie claimed. Indeed, it showed that Ms Carrie had been continually urged by the Minister to supply the Department with the documentation it was seeking. There was, again, no sensible basis upon which Ms Carrie could make the assumption upon which she claims to have relied. [17] In the proceedings before her it was open for the learned adjudicator to find the evidence of substantial rent arrears adduced by the Department of Communities was persuasive. Although her reasons are not couched in these terms, it is clear that the learned adjudicator was also satisfied that she could proceed in the absence of Ms Carrie pursuant to s 93 of the QCAT Act and, also, find that Ms Carrie had no reasonably arguable defence to contradict the evidence produced by the Department of Communities. That evidence was, as the file record of the proceedings shows, very strong. Ms Carrie has been significantly in arrears on many occasions and, at the date of the hearing, owed a large sum. [18] Taken together, there is no demonstrated or discernable error in the learned Member’s decision. The application for leave to appeal is refused. -- 5 of 5 --