Etienne v Bruce Hamlet Thelma Holdings Pty Ltd

[2018] QCATA 118

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Etienne v Bruce Hamlet Thelma Holdings Pty Ltd [2018] QCATA 118

PARTIES:

SIEGFRIED ETIENNE

(appellant)              

v

BRUCE HAMLET
and
TELMAH HOLDINGS PTY LTD

(respondents)

APPLICATION NO/S:

APL013-18

ORIGINATING APPLICATION NO/S:

MCDT223/17

MATTER TYPE:

Appeals

DELIVERED ON:

20 August 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDERS:

Leave to appeal refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – interference with findings of Tribunal below – functions of appellate tribunal – where no valid ground of appeal raised – where findings open on evidence – where no reasonably arguable case of Tribunal in error – where no reasonable prospect of substantive relief on appeal

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4

Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39
Cachia v Grech [2009] NSWCA 232
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
Hamlet v Etienne [2017] QCA 248
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
Piric & Anor v Claudia Tillier Holdings Pty Ltd [2012] QCATA 152
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

REPRESENTATION:

Applicants:

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

1. Siegfried Etienne was a co-tenant in premises rented out by Bruce Hamlet and Telmah Holdings Pty Ltd. On 14 December 2017, the Tribunal ordered that he and his co-tenants pay $5,532.00 for rental arrears and that he also pay $3,500.00 for loss of rent after remaining in the premises in breach of a Termination Order.

2. Mr Etienne has applied for leave to appeal that decision.

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;[1]

   (b)whether there is a reasonable prospect that the appellant will obtain substantive relief;[2]

   (c)whether leave is needed to correct a substantial injustice caused by some error;[3] 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.[4]

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

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

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

   [4]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.

4. Mr Etienne’s application for leave to appeal does not address any of these. Instead, he submitted that the Tribunal based its decision based on what he claims was a mistaken belief – that a co-tenant was not convicted of assaulting him. Unfortunately for Mr Etienne, his submission does not raise any basis to grant his leave to appeal because:

   (a)Mr Etienne has not provided any proof of the conviction;

   (b)The Tribunal did not base its decision on any finding about the conviction; and

   (c)His co-tenant’s conviction was not relevant to the Tribunal’s findings.

5. The Tribunal previously terminated the tenancy on the grounds of Mr Etienne’s objectionable behaviour. Mr Etienne appealed that Order to the Appeal Tribunal and then to the Court of Appeal, who dismissed his appeal.[5] His current submission may or may not have been relevant to that appeal, but it is not relevant to this appeal.

   [5]Hamlet v Etienne [2017] QCA 248.

6. The Tribunal’s current Order related to Mr Etienne’s failure to pay rent. It is not disputed that he occupied the premises for the relevant period without paying rent.[6] Mr Etienne did not dispute the Tribunal’s calculation of the rent owing.

   [6]Transcript page 1-5, lines 4 to 6; page 1-6, lines 17 to 20.

7. The appeal process is not an opportunity for a party to again present their case.[7] It is the means to correct an error by the Tribunal that decided the proceeding.[8] The minor civil disputes jurisdiction requires the Tribunal to deal with matters fairly, quickly and economically.[9]

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

   [8]Ibid.

   [9]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4.

8. Nothing in the material or the transcript persuades the Appeal Tribunal that the findings were not open to the Tribunal. The Tribunal’s finding that Mr Etienne owed rent for the relevant periods was open on the evidence. That finding was consistent with him occupying the property both before and after the Termination Order without paying rent. 

9. The Tribunal’s decision was therefore appropriate and I can find no reason to come to a different view.

   Should the Appeal Tribunal grant leave to appeal?

10. Leave will not be granted where a party simply desires to re-argue the case on existing or additional evidence.[10] A clear purpose of the requirement for leave, before a party has the right to appeal, is to prevent any attempt to simply conduct a retrial on the merits of the case.[11] An application for leave to appeal is not, and should not be an attempt to reargue a party’s case at the initial hearing.[12]

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

    [11]Ibid.

    [12]Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39.

11. Having read the transcript and considered the evidence, I find nothing to indicate that the Tribunal acted on a wrong principle, or made mistakes of fact affecting their decision, or were influenced by irrelevant matters. The evidence was capable of supporting the Tribunal’s conclusions.

12. Leave will not be granted where a party simply desires to re-argue the case on existing or additional evidence.[13] A clear purpose of the requirement for leave, before a party has the right to appeal, is to prevent any attempt to simply conduct a retrial on the merits of the case.[14]

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

    [14]Ibid.

13. There is no question of general importance for the Appeal Tribunal to determine. There is no reasonably arguable case that the Tribunal was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted.

14. Leave to appeal is refused.