QCAT update: Appeal dismissed and warrant of possession re-instated

In this article, we consider a decision of the Queensland Civil and Administrative Tribunal, in its appellate jurisdiction (the Appeal Tribunal), which provides property managers with some useful information regarding the hearing of urgent applications under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act) and the concept of natural justice in QCAT.

Martin & Anor v Chadia Calmers Realty Pty Ltd [2020] QCATA 164

On 9 December 2019, QCAT terminated the tenancy of Arjay Martin and Janica Leppanen (the tenants) on the grounds of failure to leave. The tenants subsequently applied for leave to appeal QCAT's decision.

The Appeal Tribunal stated that in determining whether to allow an application for leave to appeal, it will consider the following:

1. whether there is a reasonably arguable case of error in the primary decision;[1]

2. whether there is a reasonable prospect that the appellant will obtain substantive relief;[2]

3. whether leave is needed to correct a substantial injustice caused by some error;[3] and

4. whether there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.[4]

Before considering the tenants' application for leave to appeal, the Appeal Tribunal considered two preliminary matters, including an application filed by the tenants to file fresh evidence in support of their appeal. The Appeal Tribunal described this application as "misconceive" in circumstances where the tenants failed to identify the evidence they were seeking to rely upon that was not available at the initial hearing in QCAT.

The tenants' application implied that they had written evidence ready to be presented at the initial hearing in QCAT, but they were not allowed to present the evidence "by the Adjudicator's conduct".[5]

The Appeal Tribunal noted that the tenants had sufficient time before the hearing to file any evidence and submissions in support of their position. Further, the Appeal Tribunal noted that the learned Adjudicator "did not prevent submissions and arguments but specifically asked the tenants why they opposed the application and other questions, both open and directive including specifically asking for their evidence throughout".[6]

The Appeal Tribunal stated that:

"It is not for the Tribunal to determine evidence a party will require...The onus was always on the tenants to present their own cause, including providing all evidence relevant to why the tenancy should not be terminated for their failure to leave. The tenants had an obligation to act in their own best interests..."[7]

The tenants' application to file fresh evidence was dismissed by the Appeal Tribunal.

In support of their appeal, the tenants submitted, among other things, that they were denied natural justice at the initial hearing in QCAT.

Was not allowing discovery a denial of natural justice?

Section 28(3)(a) of the Queensland Civil and Administrative Tribunal Act (QCAT Act) provides that in conducting a proceeding, QCAT must observe the rules of natural justice.

The Appeal Tribunal noted that s 4(c) of the QCAT Act also provides that to achieve the objects of the QCAT Act, QCAT is to ensure proceedings are conducted in an informal way that minimises costs to parties, and is as quick as is consistent with achieving justice.

Further, s 28(3)(b) of the QCAT Act provides that QCAT is not bound by the rules of evidence, or any practices or procedures applying to courts of record, other than to the extent the tribunal adopts the rules, practices or procedures.

In the circumstances, the Appeal Tribunal held that not allowing formal discovery or affidavit evidence was not a denial of natural justice and the tenants were given sufficient opportunity to present all relevant evidence.

Was refusal of an adjournment a denial of natural justice?

The tenants sought an adjournment of the initial hearing in circumstances where there was a pending body corporate conciliation and one of the tenants was sitting their law exams.

The Appeal Tribunal noted that QCAT had a discretion to adjourn the initial hearing and held that the exercise of the discretion by QCAT in not adjourning the hearing was unremarkable in circumstances where the tenants attended the hearing and had been given ample opportunity to file evidence both before and during the hearing. Accordingly, the Appeal Tribunal held that the refusal of an adjournment was not a denial of natural justice.

Did QCAT discharge its obligations to give reasons?

The Appeal Tribunal held that by giving reasons for its decision on the day of the hearing, QCAT discharged its obligations to give reasons for its decision and therefore the tenants were not denied natural justice.

Did QCAT conduct the hearing in accordance with its obligations to observe the rules of natural justice?

The Appeal Tribunal stated that "Urgent applications to terminate tenancies are conducted quickly and efficiently to meet the demands of this high-volume jurisdiction...To manage demand within its statutory ambit, each urgent application is usually allocated 15 minutes. On this occasion, the learned Adjudicator allowed almost one hour, well beyond the allocated time...".[8]

The Appeal Tribunal considered the transcript from the initial hearing in QCAT and noted that while there were some interruptions, they were "part of managing the hearing by directing the parties to what is relevant and in an endeavour to focus the hearing".[9]

Accordingly, the Appeal Tribunal held that there was no indication that interruptions denied the tenants a fair hearing.

Did QCAT act with bias?

The Appeal Tribunal promptly dismissed the tenants' submission in this regard, stating that bias is a serious allegation and in this instance the allegation of bias was speculative and baseless.

The Appeal Tribunal dismissed the tenants' ground of appeal that they were denied natural justice at the initial hearing in QCAT.

Were QCAT's initial orders open on the evidence at the initial hearing?

The tenants also submitted that the learned Adjudicator ought to have dismissed the original application as the Notice to leave without ground was retaliatory action taken by the respondent agent in accordance with section 291(3) of the RTRA Act.

The Appeal Tribunal held that the "learned Adjudicator did not err in dismissing the application on retaliatory grounds".[10] The Appeal Tribunal held that in order for QCAT to consider whether a Notice to leave without ground was filed on a retaliatory basis, a tenant must file a separate application. The tenants did not do so in this matter and they "therefore lost the right to argue it at the hearing or on appeal".[11]

Finally, the Appeal Tribunal addressed the tenants' submission that the learned Adjudicator failed to address some of their arguments or evidence by stating that:

"If the learned Adjudicator's reasons do not specifically refer to an item of evidence, it does not mean it was overlooked. Rather, it is reasonable to infer that the learned Adjudicator did not consider it relevant or sufficient to outweigh the evidence upon which her findings were made."[12]

The Appeal Tribunal held that QCAT's orders were supported by the evidence and dismissed the tenants' ground of appeal in this regard.

In refusing leave to appeal, the Appeal Tribunal held that:

1. There was no question of general importance submitted by the tenants for the Appeal Tribunal to determine;

2. There was no reasonably arguable case presented by the tenants that the Tribunal was in error;

3. There was no reasonable prospect for the tenants of substantive relief on appeal; and

4. There was no evidence that a substantial injustice will result if leave is not granted to the tenants.[13]

Accordingly, the Appeal Tribunal ordered, amongst other things, that the Warrant of Possession, which had previously been issued on 9 December 2019, be re-instated to take effect from 28 January 2021 and expire at 6.00pm on 12 February 2021.

References:

[1] QUYD Pty Ltd v Marvass Pty Ltd [2009] Qd R 41.

[2] Cachia v Grech [209] NSWCA 232.

[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] Qd R 41.

[4] 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, 577, 580.

[5] Martin & Anor v Chadia Calmers Realty Pty Ltd [2020] QCATA 164 [12].

[6] Ibid [14].

[7] Ibid [10].

[8] Ibid [29] and [30].

[9] Ibid [34].

[10] Ibid [42].

[11] Ibid [43].

[12] Ibid [46].

[13] Ibid [56].

This story was originally published on 27 January 2021.

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