Davis v RLB O'Connor Investments

[2019] QCATA 139

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Davis v RLB O’Connor Investments [2019] QCATA 139

PARTIES:

WENDY DAVIS
(appellant)

v

RLB O’CONNOR INVESTMENTS

(respondent)

APPLICATION NO/S:

APL190-18

ORIGINATING APPLICATION NO/S:

MCDT 2289/17

MATTER TYPE:

Appeals

DELIVERED ON:

18 September 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDERS:

1.   Leave to appeal granted.

2.   Appeal allowed.

3.   The Orders made on 2 July 2018 are set aside.

4.   The proceedings instituted by Application MCDT 2289/17 are remitted to a different Tribunal panel or an Adjudicator for rehearing.

CATCHWORDS:

APPEAL AND NEW TRIAL – LEAVE TO APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where Tribunal failed to provide adequate reasons for decision – where appellant challenged evidence and produced own at first instance – where parties must be satisfied that Tribunal has given them answer to their issues – where Tribunal at first instance did not explain basis for findings or why it accepted evidence or preferred other evidence – where failure to give adequate reasons amounted to denial of procedural fairness – where error of law for which leave should be granted to correct substantial injustice

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 121, s 143

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Body Corporate for Rosegum Villas v QBCC [2015] QCATA 125
Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39
Cachia v Grech [2009] NSWCA 232
Clarke v Cascade Pools (Qld) Pty Ltd [2010] QCAT 323
Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
Hayward & Anor v LJ Hooker Longreach [2013] QCATA 221
Hurst v Pyatt [2017] QCATA 101
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
Mistero Pty Ltd v Cann [2017] QCATA 56
Phu v NSW Department of Education and Training [2010] NSWADTAP 76
Piric & Anor v Claudia Tillier Holdings Pty Ltd [2012] QCATA 152

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

REPRESENTATION:

Appellants:

Self-represented

Respondent:

Self-represented

APPEARANCES:

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

REASONS FOR DECISION

What is this appeal about?

1. On 2 July 2018, the Tribunal constituted by two Justices of the Peace allowed the following claims by RLB O’Connor Investments Pty Ltd from a tenancy with Wendy Davis:

Pet fumigation	$187.00
Cleaning	$180.00
Screen repairs	$99.00
Total	$466.00

1. Ms Davis want to appeal that decision.

2. Because this is an appeal from a minor civil dispute, leave is required.[1]

   [1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 143(3).

3. In determining whether to grant leave, the Tribunal will consider established principles including:

   (a)whether there is a reasonably arguable case of error in the primary decision;[2]

   (b)whether there is a reasonable prospect that the appellant will obtain substantive relief;[3]

   (c)whether leave is needed to correct a substantial injustice caused by some error;[4] and

   (d)whether there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.[5]

   [2]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

   [3]Cachia v Grech [2009] NSWCA 232, 2.

   [4]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

   [5]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 577, 580.

   Should the Tribunal grant leave to appeal?

4. It is an error of law for the Tribunal not to provide adequate reasons for its decision if it amounts to a denial of natural justice.[6] A failure to give adequate reasons is a denial of natural justice if a party cannot be confident that the case was understood and properly considered.[7]

   [6]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.

   [7]Mistero Pty Ltd v Cann [2017] QCATA 56, [10] (Senior Member Stilgoe OAM).

5. Ms Davis focused her grounds of appeal on rearguing her case. Leave to appeal will not be granted where a party simply desires to re-argue the case on existing or additional evidence.[8] Unfortunately, it would appear that Ms Davis may have had good reason here: she was not given adequate reasons.

   [8]Piric & Anor v Claudia Tillier Holdings Pty Ltd [2012] QCATA 152, [12] (Wilson J).

6. In 39 pages of transcript, the Tribunal’s reasons are expressed in four paragraphs.[9] While it is understandable that the learned Justices sought to deliver reasons with economy and brevity, the emphasis on expedition and informality does not allow the Tribunal to pursue speedy resolution at all costs.[10] In all proceedings, the Tribunal must still act fairly and according to the substantial merits[11] of the case and observe the rules of natural justice.[12]

   [9]Transcript, page 1-38, lines 39 to 45; page 1-39 lines 1 to 16.

   [10]Hayward & Anor v LJ Hooker Longreach [2013] QCATA 221, [20] (Wilson J).

   [11]Queensland Civil and Administrative Tribunal Act 2009 (Qld), 28(2).

   [12]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(a).

7. This means that the Tribunal must give proper reasons for its decision:[13]

   Those reasons need not be elaborate, but they must contain three essential elements: appropriate and sufficient reference to the relevant evidence; the material findings of fact that were made (and the reasons for making those findings); and the applicable law and the reasons for applying it in the way expressed in the decision. It has also been said, in Queensland, that the crucial element is for the Tribunal to give reasons which disclose what has been taken into account in a way that means any error is revealed.[14]

   [13]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 121.

   [14]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [47] (Wilson J and Member Ford) citing Phu v NSW Department of Education and Training [2010] NSWADTAP 76, Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430.

8. The Tribunal at first instance did not explain why it allowed an amount of $187.00 for fumigation. While a quote for this amount was in evidence, the Tribunal did not explain whether this was the basis for its award and if so, why it was prepared to accept this. A quote without more is not evidence of payment.[15] Ms Davis challenged the quote on this basis and also on the basis that she produced her own (cheaper) quotes.[16] In these circumstances, it was incumbent upon the Tribunal to explain to her why it accepted or at least preferred the other quote. While sworn oral evidence to accompany the quote may suffice, the oral evidence here is equivocal.[17] Regardless, the reasons are silent on this.

   [15]Clarke v Cascade Pools (Qld) Pty Ltd [2010] QCAT 323, [39].

   [16]Transcript, page 1-17, lines 12 to 45.

   [17]Transcript, page 1-18, lines 1 to 8.

9. Similarly, in awarding $180 for cleaning, the Tribunal at first instance did not explain why it preferred O’Connor’s evidence over Ms Davis’ own documentary and oral evidence of having the premises cleaned. While the finding may still have been open, Ms Davis is entitled to know why her evidence was not accepted. Again, the reasons are silent. 

10. The Tribunal’s reasons were inadequate. This is an error of law for which leave should be granted to correct a substantial injustice. Whatever the Tribunal’s findings of fact, the parties must be satisfied that the Tribunal has given them an answer to their issues.[18] Ms Davis was not given procedural fairness because she does not know why the Tribunal at first instance made certain findings against her.

    [18]Body Corporate for Rosegum Villas v QBCC [2015] QCATA 125, [8].

11. The matter should be remitted for rehearing before a differently constituted Tribunal, who will be in the best position to assess credibility and make appropriate findings of fact upon hearing all the evidence from the parties.

    Are Ms Davis’ counter-claims proper grounds of appeal?

12. Ms Davis included a ‘counter claim’ for rent reduction as part of her appeal. This is not a ground of appeal, was not pursued by Ms David at the original hearing[19] and is not a claim that can be made retrospectively after the end of the tenancy.[20]  

    [19]Transcript, page 1-26, lines 19 to 35.

    [20]Hurst v Pyatt [2017] QCATA 101.

13. Ms Davis also claimed ‘out of pocket expenses due to this dispute’. This is also not a ground of appeal, was not claimed by Ms Davis at the original hearing and are not recoverable in the minor civil disputes jurisdiction.[21] The appeal process is not an opportunity for a party to again present their case.[22] It is the means to correct an error by the Tribunal that decided the proceeding.[23]

    [21]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 102(2).

    [22]Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39, [9].

    [23]Ibid.

14. These are not proper grounds of appeal and are dismissed.

    What are the appropriate Orders?

15. Leave to appeal should be granted and the appeal allowed. The decision of 4 July 2018 is set aside. It is appropriate that the matter be remitted for the rehearing of O’Connor’s claims only.