Carter v LH Hooker Springfield Lakes

[2014] QCATA 73

CITATION: Carter v LH Hooker Springfield Lakes [2014] QCATA 073

PARTIES:	Bernadette Carter (Applicant/Appellant)
v
Michelle Heit t/as L H Hooker Springfield Lakes (Respondent)

APPLICATION NUMBER: APL490-13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member Stilgoe, OAM

DELIVERED ON: 8 April 2014

DELIVERED AT: Brisbane

ORDERS MADE: 1.    Leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – whether grounds for leave to appeal

Pickering v McArthur [2005] QCA 294

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. At the end of Ms Carter’s three-year tenancy, L H Hooker Springfield Lakes applied to the tribunal for the costs of repairing and repainting damaged walls and for removal of carpet from a deck area. Two Justices of the Peace, sitting as a panel in the minor civil dipsutes jurisdiction of the tribunal, accepted the agent’s claim. They ordered the bond of $1,680 be paid to the agent and Ms Carter pay a further $222.

2. Ms Carter wants to appeal that decision. She says that the learned Justices of the Peace hurried her submissions but allowed the agent to speak freely. She says the agent was allowed to have two people speak, rather than just Ms Heit. She says the agent presented a “smear campaign” to the learned Justices of the Peace and they were “contaminated” by this material. She says the learned Justices of the Peace allowed evidence that would not normally be allowed.

3. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The principles the appeals tribunal applies when considering an application for leave to appeal summarised by Keane JA (as His Honour then) was in Pickering v McArthur[1]:

   There are numerous authorities, in varying language but with unvarying emphasis, that 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. 

   [1]Pickering v McArthur [2005] QCA 294.

1. Ms Carter has filed fresh material with her application for leave to appeal. The agent has filed material in response. The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined[2]. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Ms Carter have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?[3]

   [2]QCAT Act ss 137 and 138.

   [3]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.

1. An application for leave to appeal is not, and should not be, an attempt to shore up the deficiencies of a party’s case at the initial hearing. Ms Carter’s explanation as to why this material was not available earlier is that she was not given a proper opportunity to put her case. For reasons that follow, I do not accept that submission. The fresh evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Justices of the Peace.

1. I can find two instances of the learned Justices of the Peace telling Ms Carter to “make it quick” or words to that effect[4]. It is necessary to consider those comments in context. The learned Justices of the Peace allowed Ms Carter ample opportunity to put her case. Of 30 pages of transcripted evidence and submissions, Ms Carter’s evidence and submissions occupy 12 pages. The learned Justices of the Peace allowed Ms Carter to speak without interruption for long periods of time[5]. In contrast, apart from an initial speech from Ms Lees[6], on behalf of the agent, the agent’s evidence was short and directed by questions from the learned Justices of the Peace. I do not accept that Ms Carter did not have a proper opportunity to put her case.

   [4]Transcript page 1-22, lines 41-42; page 1-25, line 34.

   [5]See, for example, Transcript page 1-10, 1-11, 1-17 and 1-20.

   [6]Transcript page 1-8.

1. The transcript does not reveal why two people appeared on behalf of the agent. The transcript does show that the learned Justices of the Peace asked both Ms Lees and Ms Heit to take an affirmation. It seems that both ladies gave evidence about the matters in dispute. While the procedure was unorthodox, it was not, in the circumstances, unfair.

1. The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[7]  An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[8] 

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

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

1. Ms Carter says that because the quote is not “precise” it should not be admitted. The learned Justices of the Peace considered Ms Carter’s submission that the painter’s quote was not legitimate because the date stamp of the fax transmission was October 2011. The quote is on file. It is dated 13 August 2013, the same date as other quotes for work on the property. The agent gave evidence of the date they received the quote. The learned Justices of the Peace accepted the agent’s explanation for this inconsistency. I have no reason to take a different view.

1. Ms Carter questions the fact that the agent provided only one quote. The tribunal is not an insurer, which requires three quotes as a matter of practice. If the tribunal is satisfied that a quote is reasonable and valid, it is entitled to act on one quote.

1. The file does have evidence about other issues in the tenancy. The agent made it clear at the start of the hearing that the only issue was the repainting of the walls[9]. The learned Justices of the Peace stated they only had to focus on one issue[10]. They heard evidence only about the repainting. Their decision was only about the repainting. I can find no evidence that their decision was influenced by any other material.

   [9]Transcript page 1-3, lines 46-47.

   [10]Transcript page 1-5, line 41.

1. The evidence can support the learned Justices of the Peace findings and I can find no compelling reason to come to a different view. There is no reasonably arguable case that the learned Justices of the Peace were in error. Leave to appeal should be refused.