THE APPEAL

Enter QCAT Senior Member Ann Fitzpatrick

The tenants filed an appeal of the Marshall hearing, because at the ages of 73 and 76, they were acutely aware of the blatant falsehoods that had been presented to the QCAT Tribunal, and evidence of that dishonesty by the respondents was subsequently confirmed by affidavit to the Appeal Tribunal, given that the dishonesty appeared to also involve criminality.

AT THE APPEAL (on the papers) FITZPATRICK DOUBLED DOWN ON THE GROSS MISCARRIAGE OF JUSTICE

In the appeal APL305-23 of the QCAT Q1363-23 Marshall hearing, presided over by Senior Member Ann Fitzpatrick, concerns have been raised regarding the handling of evidence and the integrity of property managers and owners in their dealings with QCAT. Ms. Fitzpatrick, identified as a Sessional Senior Member and formerly a solicitor, and also appears to be a barrister, controversially deemed the alleged fabrication of evidence and dishonesty by the respondents to be unimportant to the public interest prompting criticism over her approach and decision-making. The appeal was conducted "on the papers" without a formal hearing, leading to further scrutiny of her judgment, especially regarding the treatment of the elderly tenants involved in the case.

Furthermore, when Ms. Fitzpatrick chooses this dishonest fraud on the Tribunal to be unimportant to the public interest, she includes the tenants that rent in more than 600,000 households in Queensland (source Queensland Government). To say that these tenants don't have an interest in Property Managers lying to the QCAT Tribunal, is quite ridiculous and disingenuous, and which would totally fail to meet the community expectations of residential tenants in Queensland!!!

Instead of dealing with the matters of Fabrication & Lies under subsection 48(1)(e) of the QCAT Act: "attempting to deceive another party or the tribunal"; or section 216 "False or misleading information"; the Senior Sessional Member Fitzpatrick decided that a Cover-up was a better idea.

In pursuit of what appears to be the Cover-up, Ms. Fitzpatrick found that the evidence of the Fabrication & Lies was not fundamental to the Adjudicator's finding and thus irrelevant, when at the second paragraph of the Adjudicator's reasons, it is shown that the Adjudicator had clearly relied upon the Fabricated Evidence & Lies when she wrote:
"The agent has given evidence in relation to the solar being put into the owners’ name as an administrative error. The owners were planning to give the solar rebates to the tenants". SEE IT

These two sentences which Adjudicator Marshall erroneously took to be truthful, are in fact the essence of the Fabricated Evidence & Lies. The Property Manager (PM) and the respondents at the time, had sought to conceal their onerous and predatory behaviour, by five months later at the Marshall hearing announcing that it had all been an administrative error. SEE A BRIEF OF THE EVIDENCE THAT WAS IGNORED BY FITZPATRICK.

Ms. Fitzpatrick's actions reveal a troubling disregard for crucial evidence, as she focused on an unsigned status of the tenancy lease renewal, while totally ignoring the underlying issues of onerous and predatory lease conditions, that justified the tenants' refusal to renew, which as said, were sought to be covered up by the Fabrication and Lies five months later.

The evidence justifying the tenants' refusal, is contained within:
the applicant's appeal submissions and Timeline evidence (matching the evidence brief) confirmed by affidavit; and
the tenants' Statement of Claim;
and Ms. Fitzpatrick has not referred to that evidence, in any shape or form throughout her 12 pages of her Reasons for Decision, and in fact Fitzpatrick has not referred at all, to the first of two submissions made by the applicant that contains the Timeline.

Ms. Fitzpatrick not only neglected her duty to address the implications of the actions taken by the PM as agent for the property owners Saurav Kataria & Ashleigh Kataria, but also dismissed the potential criminal ramifications of the dishonesty, which has even further undermined the integrity of QCAT adjudication and appeal processes.

In other words, a person can appear at a QCAT hearing, and wilfully lie until that person is content, and according to Fitzpatrick that is quite OK, and doesn't require investigation, or making that person and the first respondent property owners that she represents, explain their behaviour.

Ms. Fitzpatrick's assertion that the tenants did not respond to the Property Manager's alleged lies is contradicted by the Transcript, which indicates that the tenants voiced strong objections that were overlooked by both Marshall and now Fitzpatrick. Furthermore, Fitzpatrick's wrongly claims the Adjudicator's role is not to cross-examine the Property Manager, when all QCAT Adjudicators and Members are required to abide by sections 28(1)(e) and 29 of the QCAT Act, which mandates thorough disclosure of all relevant material to ensure a fair hearing, and that proper procedure must be followed. So when the tenants objected to the lies, the Adjudicator was duty bound to investigate, but of course she dismally failed to do that.

It is quite bizarre, that Fitzpatrick seeks to blame the tenants, for the damage caused, by the dishonesty of the PM for the respondents, achieving a fraud on the Tribunal. 

The tenants, caught off guard by the unexpected introduction of the fabricated "Administrative Error," could not effectively protect their rights as they had no prior warning or opportunity to respond to the PM's lies that were clearly intended to (and did) pervert the course of justice, raising legitimate concerns about the violation of Procedural Fairness.

Ms. Fitzpatrick's apparent disregard for the principle of Procedural Fairness, particularly the vague and imprecise way she has dealt with the surprise that the tenants had suffered, undermines the integrity of the process and ignores QCAT's established case law on "Surprise" at paragraphs [13] to [16], which emphasises the importance of adhering to strict procedures to ensure transparency and fairness in order to eliminate being taken by surprise.

By disregarding the unexpected nature of the tenants' situation of being taken by surprise, which normally would ensure leave to appeal, Fitzpatrick not only neglects her responsibilities but also potentially engages in actions that could be perceived as deliberately misleading, further compromising the tenants' rights and undermining the judicial process.

It also appears that Ms. Fitzpatrick's decision regarding the applicability of the Australian Consumer Law (ACL) to residential tenants in Queensland can easily cause significant concern and confusion, by potentially misrepresenting that the ACL legal protections available to tenants were not available, when they are available. If her ruling is perceived as an attempt to alter established legal precedents and even to disregard the relevant legislation, it raises even more important questions about the integrity of the judicial process and the need for clarity in the protection of consumer rights across Australia. Such a situation underscores the importance of legal accuracy in case law, to ensure that future judgments do not mislead others.

THE QCAT JURISDICTION REGARDING THE ACL that Fitzpatrick seeks to disregard, is created by sections 20 and 50 of the Fair Trading Act (QLD) and it has been relied upon in: Helyar v Civil and Property Development Consulting Pty Ltd (in liquidation) & Ors [2020] QCAT 465, and the Appeal Tribunal at: Mathew v Millington [2016] QCATA 202 at [46].

Plus, the ACL is available in VCAT, so why wouldn't it be available in Queensland.

The washup from the above, appears to be that Ms. Fitzpatrick:
1. is seeking to cover up the bad and incompetent behaviour of Adjudicator Marshall; and
2. in doing so is seeking to avoid the reputation of QCAT being tarnished; and
3. by inserting her Reasons for Decision into the QCAT Archives thus making it available online, Fitzpatrick is seeking to mislead those that may cite her Decision as to the availability of the ACL in QCAT Minor Civil Dispute (MCD) jurisdiction, which includes tenancy disputes; and
4. is seeking to remove ACL jurisdiction from QCAT's MCD jurisdiction, so as to covertly diminish QCAT's workload; and
5. given the apparent behaviour at 1, 2, 3 & 4, the writer believes that it is not unreasonable to have the aforesaid suspicion .

From this utterly inept, disordered, mismanaged and shameful QCAT debacle that puts Australian justice to shame, there are many grounds for appeal which can be filed in an application to the Supreme Court of Appeal. This will not be happening (unless there is pro-bono assistance). Instead this debacle will continue to be updated, expanded and published in the Court of Public Opinion, which I have found to be far more successful in the past, and also recently, by way of the five figure payout from the PM and her real estate employer. If nothing further is to be achieved, the yet to be completed QCAT Trilogy, will serve to eternally haunt those responsible.

FITZPATRICK CONTINUES WITH THE COVER-UP

To be continued... An annotated copy of the decision is being prepared and will appear here in due course.