Campbell v Collins

[2013] QCATA 22

CITATION: Campbell & Anor v Collins [2013] QCATA 22

PARTIES:	Cheryl Campbell Geoffrey Hill (Applicants/Appellants)
v
Royden Collins (Respondent)

APPLICATION NUMBER: APL174-12

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON: 29 January 2013

DELIVERED AT: Brisbane

ORDERS MADE: Leave to appeal refused.

CATCHWORDS:

MINOR CIVIL DISPUTE – where premises not approved for residential use – where evidence presented in electronic form not accepted by Magistrate – whether a lack of procedural fairness – where fresh evidence filed on appeal – whether fresh evidence should be accepted

Residential Tenancies and Rooming Accommodation Act 2008, s 9(2)

Dearman v Dearman (1908) 7 CLR 549, cited

Fox v Percy (2003) 214 CLR 118, cited

Chambers v Jobling (1986) 7 NSWLR 1, cited
PS Business Holdings v Duncan & Anor [2010] QCATA 19, applied

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.

REASONS FOR DECISION

1. Miss Campbell and Mr Hill lived in a property they rented from Mr Collins.  The property consisted of a downstairs area, where Miss Campbell lived, and an upstairs area, where another series of tenants lived.  Mr Collins says that he rented the whole property to Miss Campbell, who then sublet the upstairs area to tenants of her choice.  Miss Campbell, not surprisingly, has a different view of the arrangements.

2. The parties fell into dispute.  Mr Collins gave Miss Campbell and Mr Hill a notice to leave.  At about the same time, Miss Campbell discovered that the permitted use for the property was ‘clubhouse’ and that residential use was not permitted.  The tenancy was terminated and both parties brought applications for compensation.  The learned Magistrate, sitting as a member of the Tribunal, ordered that Miss Campbell and Mr Hill pay Mr Collins $2,543.30.

1. Miss Campbell and Mr Hill have appealed the learned Magistrate’s decision.  Miss Campbell, who has authority to act for Mr Hill, says that the learned Magistrate erred in fact because the property was not approved for residential purposes.  Miss Campbell also says that she was unable to show the Magistrate evidence which she had provided on CD and USB flash drive.  Miss Campbell says that she put the material in electronic form because a different Magistrate had previously asked her to minimise any evidence.

1. Because this is an appeal from a decision of the Tribunal in its minor civil dispute jurisdiction, leave is necessary.  Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief.  Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?

1. In response to a direction to provide submissions in support of the application for leave to appeal, Miss Campbell has provided a folder full of documents.  Some of the documents were before the learned Magistrate.  Although the documents are logically grouped, Miss Campbell does not explain why, or how, they are relevant to her application.

1. If the documents Miss Campbell has provided on appeal are new documents, then the test for whether the Appeal Tribunal should accept them is whether ‘… it could not, by reasonable diligence, have been obtained for the original hearing, is credible, and might have produced an opposite result.’[1]

   [1]            PS Business Holdings v Duncan & Anor [2010] QCATA 19 at [16].

1. Miss Campbell has not provided the Appeal Tribunal with any information or submissions to support a finding that the evidence was credible or could not have been obtained for the original hearing.  She does not say, as she might have, that these are the documents that were provided in electronic form which the learned Magistrate declined to consider.  I decline to have regard to the material filed by Miss Campbell in her application for leave to appeal.

1. Miss Campbell complains that the learned Magistrate made an error of fact by failing to have regard to the permitted use of the property.

1. Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[2] 

   [2]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.

1. An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.[3]  As the High Court said in Fox v Percy (2003) 214 CLR 118:

In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses.  In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.[4]

[3]        Chambers v Jobling (1986) 7 NSWLR 1 at 10.

[4]        Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.

1. Miss Campbell raised the issue of the permitted use at the hearing.  The learned Magistrate was aware of the issue and nevertheless determined that she preferred the evidence of Mr Collins and the real estate agent Mr Carlin.  There is nothing in the transcript that persuades me that the learned Magistrate should have taken a different view of the evidence.

2. The Residential Tenancies and Rooming Accommodation Act 2008 (‘RTRA Act’) applies to many dwellings that would not be ‘approved’ in a town planning sense and the definition of premises is drawn deliberately wide.[5] If a tenant acquires rights under the RTRA Act, there should be corresponding obligations. Miss Campbell did live in the premises. She acquired a benefit. She should not acquire that benefit without also incurring the obligation to pay rent.

   [5] RTRA Act, s 9(2).

3. I apprehend that Miss Campbell’s second complaint is, in effect, a complaint that the learned Magistrate did not afford her procedural fairness.  It was a lengthy hearing.  The parties had filed a significant amount of material in support of their respective positions.  The learned Magistrate adjourned the hearing so that she could consider the material and the oral evidence.  The learned Magistrate preferred the evidence of Mr Collins and Mr Carlin.  She found Miss Campbell’s evidence confusing.

4. I have already noted that Miss Campbell has not explained what was on the CD and USB flash drive and why that evidence was critical to her case.  In the absence of such an explanation, I am not persuaded that Miss Campbell has suffered any prejudice in the presentation of her case that would justify leave to appeal.

5. There is no question of general importance that should be determined by the Appeal Tribunal; there is no reasonably arguable case that the learned Member was in error; there is no reasonable prospect of substantive relief on appeal; and, there is no evidence that a substantial injustice will result if leave is not granted.  Leave to appeal should be refused.