CITATION:	Wilkinson & Anor  v Colston & Anor [2014] QCATA 212	

PARTIES:	David Wilkinson
BJ Wilkinson
(Applicants/Appellants)	
	v	
	Douglas Colston
Rosemary Colston
(Respondents)	

APPLICATION NUMBER:	APL011 -14	

MATTER TYPE:	Appeals	

HEARING DATE:	On the papers	

HEARD AT:	Brisbane	

DECISION OF:	Justice Thomas, President	

DELIVERED ON:	20 May 2014 	

DELIVERED AT:	Brisbane 	

ORDER MADE:	The application for leave to appeal is refused.	

CATCHWORDS:	APPEAL – LEAVE TO APPEAL – RESIDENTIAL TENANCY DISPUTE – whether grounds for leave to appeal

PROCEDURE – INFERIOR COURTS – QCAT – SELF-EXECUTING ORDERS – where  applicants failed to comply with appeal tribunal direction – where appeal tribunal made self-executing direction in case of non-compliance – where respondents made application to strike out for non-compliance – whether application for leave to appeal or appeal should be refused
 
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(a), s 32, s 142(3)(a)(i)

Dearman v Dearman (1908) 7 CLR 549, applied 
Fox v Percy (2003) 214 CLR 118, applied
Pickering v McArthur [2005] QCA 294, applied
Chambers v Jobling (1986) 7 NSWLR 1, cited	

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

[1]	The Colstons rented a home from the Wilkinsons. The Colstons sought compensation for a range of alleged breaches of the tenancy agreement; the Wilkinsons sought to terminate the tenancy because of the Colstons’ breaches. In particular, they said that the Colstons did not pay the full bond required by the agreement.
[2]	A Magistrate, sitting as a member of the tribunal, terminated the tenancy agreement. She ordered a rent reduction of $50 per week for the period that the pool was not working and she ordered the Wilkinsons reimburse the Colstons for pool and dishwasher repairs. She also ordered the Colstons pay the Wilkinsons the outstanding bond of $740.
[3]	The Wilkinsons have sought to appeal that decision, on the ground that the Colstons never made them aware there was a problem with the pool “for months” and did not allow them access to the property to fix the problem.  Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.  Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.
[4]	There is a preliminary matter. On 20 January 2014, the appeal tribunal made directions for the conduct of this proceeding. The Wilkinsons were required to prove service of the application on the Colstons by filing an affidavit in the tribunal on or before 28 January 2014. They were also required to file their submissions in support of the application by                11 February 2014. The directions further provided that, if the Wilkinsons did not comply with the directions, the application for leave to appeal would be dismissed without further order.
[5]	Under the directions, failure to comply leads to dismissal without further order. However, the Wilkinsons filed their submissions in support of the application within the time required.
[6]	On 7 February 2014, the Colstons filed an application to dismiss these proceedings on the ground that the Wilkinsons had not complied with the directions: they had not been served with the application. A similar application was filed again on 4 April 2014, further stating that, as at 3 April 2014, they were still yet to be served by the Wilkinsons. There is no evidence, however, that the Colstons have served the Wilkinsons with either application to strike out, so the appeals tribunal has no explanation from the Wilkinsons about their failure to comply with the requirement to prove service. 
[7]	The appeal tribunal must observe the rules of natural justice. The failure of both sides to notify the other of their applications means that both sides are disadvantaged. 
[8]	Directions, such as those made on 20 January 2014, are made for good reason: it is essential that the opposing party be made aware of the basis of the application. Unless the Colstons are aware of the basis for the application, they cannot be expected to respond. By operation of the direction order, the application for leave to appeal and appeal was dismissed for non-compliance with the appeal tribunal’s directions. 
[9]	For the sake of completeness, though, I will consider, briefly, the Wilkinsons’ submissions. The learned Magistrate considered the matters they raised. She acknowledged the parties did not agree about when, and how often, the Colstons told the Wilkinsons about problems with the pool. She acknowledged the Colstons gave the Wilkinsons little opportunity to fix the pool. 
[10]	The appeal tribunal will not usually disturb findings of fact on appeal if it considers the conclusions of the decision maker below were able to be made on the evidence before them, however may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.  
[11]	There is nothing in the transcript to persuade me that the learned Magistrate should have taken a different view of the facts, and there is no reasonably arguable case that she was in error. Had the application for leave to appeal and appeal not been dismissed on account of the applicant’s non-compliance with the directions made on 20 January 2014, leave to appeal would, for the reasons articulated above, be refused.