Strumfin v Mitchell

[2018] QCATA 137

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Strumfin v Mitchell [2018] QCATA 137

PARTIES:

ELIZABETH STRUMFIN
(applicant/appellant)

v

ROBERT MITCHELL

(respondent)

APPLICATION NO/S:

APL205-18

ORIGINATING APPLICATION NO/S:

MCDT211/18

MATTER TYPE:

Appeals

DELIVERED ON:

14 September 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Carmody

ORDERS:

1.   The application to stay a decision is refused.

2.   The application for leave to be legally represented is refused.

3.   The application for leave to appeal or appeal is refused.

CATCHWORDS:

APPEAL – MINOR CIVIL DISPUTE – APPLICATION TO REOPEN – where the applicant seeks leave to appeal the tribunal’s decision refusing to reopen the proceeding – where the applicant failed to attend the hearing without a reasonable excuse and orders were made in her absence – where s 139(5) prohibits appeals from reopening decisions – where the application for leave to appeal is refused

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 139(4), (5)

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

1. This is an application for leave to appeal a decision of the tribunal refusing an application to reopen a proceeding.

2. The applicant lodged applications for leave to be legally represented and to stay the decision at the same time as the Form 39.

3. No Affidavit of Service has been field and it is unclear if the respondent is aware of the proceedings.

4. The appeal tribunal has not made directions to the parties regarding the outcome of the two interlocutory applications nor for the filing of submissions supporting or contesting leave to appeal.

5. The appeal tribunal finds that the application for leave to appeal is ill-conceived and can be dealt with without the need for further submissions for the following reasons.

6. The minor civil dispute (tenancy) involved the alleged overpayment of rent and the applicant’s refusal to provide a refund.

7. On 29 May 2018 the applicant submitted an application for miscellaneous matters seeking the dismissal of the tenant’s minor civil dispute application because:

   I have never had any agreement or contracts with the applicant nor have I ever received any money from the applicant. I am unable to attend the hearing in Cairns as I live in Wollongong, NSW and am a fulltime carer for my Mother.

8. On 4 June 2018 the tribunal found in the tenant’s favour. The decision was made in default of the applicant’s appearance.

9. The applicant applied pursuant to s 138(1) QCAT Act to reopen the proceeding. That application was refused on 27 July 2018.

10. The applicant claims she was not able to attend the hearing in person because she is a carer for her elderly mother. She says she was given incorrect information by the registry about what form to submit to request leave to attend the hearing by telephone.

    Reopening under the QCAT Act

11. Under s 139(4) QCAT Act the tribunal may grant an application to reopen only if the tribunal considers that a reopening ground exists and the ground could be effectively or conveniently dealt with by reopening the proceeding.

12. The failure of a party to attend a hearing with reasonable excuse is a reopening ground.[1]

    [1]QCAT Act Sch 3.

13. The tribunal accepted that the applicant’s reason for non-attendance was genuine, but did not consider it a reasonable excuse in light of comments made by Justice Wilson in Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd[2] that parties are “expected to present their own cases, and act in their own interests”.

    [2][2010] QCATA 69 [9].

14. The tribunal also found that there would be no substantial injustice to the applicant if the application to reopen was refused because the applicant’s claims that she had no contract with the tenant and had never received any overpaid rent were unarguable.

15. Irrespective of the applicant’s chances of success on appeal (and in this, I agree with the tribunal’s comments) s 139(5) QCAT Act provides that “the tribunal’s decision on the application (to reopen) is final and can not be challenged, appealed against, reviewed, set aside, or called into question in another way, under the Judicial Review Act 1991 or otherwise”.

16. The application is refused. It is incompetent and devoid of any arguable legal merit. In the circumstances, the applications to stay the decision and to be legally represented are otiose and likewise refused.