Connell v Jeffery

[2014] QCATA 229

CITATION: Connell v Jeffery & anor [2014] QCATA 229

PARTIES:	Jenny Connell (Applicant/Appellant)
v
Rosemary Jeffery Lauren Xing (Respondents)

APPLICATION NUMBER: APL276 -14

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member Stilgoe, OAM

DELIVERED ON: 25 August 2014

DELIVERED AT: Brisbane

ORDERS MADE: 1.    Leave to appeal refused

CATCHWORDS:

APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY  - where claim for harassment – where dispute about method of serving entry notices - whether grounds for leave to appeal

Pickering v McArthur [2005] QCA 294
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404

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. Ms Connell was a tenant in a property owned by Ms Jeffery.  Ms Jeffery appointed Ms Xing to sell that property. The tribunal terminated the tenancy agreement on 16 March 2014. Ms Connell then filed an application for compensation for $24,658.60. The tribunal dismissed her claim.

2. Ms Connell wants to appeal that decision. She says Ms Xing filed a false statement in the tribunal which misled the learned Adjudicator into making the wrong decision.

3. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] 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.[2]

   [1]QCAT Act, s 142(3)(a)(i).

   [2]Pickering v McArthur [2005] QCA 294 at [3].

1. Ms Connell has not pointed to any error by the learned Adjudicator. Her submissions focus on the alleged harassment. She submits that she can provide further evidence of harassment – a police report - to the appeal tribunal. She invites the appeal tribunal to obtain further evidence from the Office of Fair Trading.

1. The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Ms Connell 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]

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

1. Ms Connell has not satisfied any of these tests. It is not for the appeals tribunal to search out evidence that she has not provided. The task of the appeals tribunal is to decide whether there was an error in the learned Adjudicator’s decision, based on the evidence before him.

1. The learned Adjudicator found that Ms Xing’s behaviour was not harassment. He considered the evidence in some detail[4]. The learned Adjudicator pointed out that the entry notices were served in compliance with the Residential Tenancies and Rooming Accommodation Act 2008 (Qld).

   [4]Transcript page 1-25 line 19 to page 1-26 line 5.

1. I accept that Ms Connell didn’t want to receive notices by email. Because she did not provide an email address on the tenancy agreement, she is not obliged to accept notices by email. But she is obliged to accept notices that were left in her letterbox[5]. The lessor was not obliged to send notices by registered or express post but, once the letter was delivered, the lessor’s job was complete. Ms Connell cannot say she did not receive the notice because she refused to collect it.

   [5]Clause 44(3) of the tenancy agreement.

1. Ms Connell’s submission that Ms Xing misled the tribunal, even if true, does not affect the learned Adjudicator’s findings that Ms Connell was properly served with entry notices and that there was no evidence of harassment.

1. The evidence can support the learned Adjudicator’s findings. There is nothing in the transcript to persuade me that he should have taken a different view of the facts.

1. There is no reasonably arguable case that the learned Adjudicator was in error. Leave to appeal should be refused.