Galagher v O'Donnell

Case [2020] QCATA 4

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Galagher v O’Donnell [2020] QCATA 4
PARTIES: LOUISA GALAGHER

(applicant)

v
STACEYANN O’DONNELL

(respondent)

APPLICATION NO:

APL181-19

ORIGINATING APPLICATION NO:

MCDT 3 OF 2019 Brisbane

MCDT 152 of 2019 Brisbane

MATTER TYPE:

Appeals

DELIVERED ON:

16 January 2020

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes,  Member
ORDERS:

The application for leave to appeal is refused.

CATCHWORDS:

APPEAL – APPLICATION FOR LEAVE TO APPEAL – caretaker agreement – retirement village - where accommodation rights attached – where proprietor seeks to terminate caretaker’s right of occupation – where attempt to terminate is invalid –where caretaker subsequently ceases to perform duties because of ill health – where proprietor later terminates employment – where incapacitated caretaker’s occupancy continues to date of termination - whether right to remuneration continued until agreement terminated, incapacity notwithstanding – where claim for part remuneration allowed – whether award should be set aside – where no appellable error shown – where purpose and limitations of application for leave explained – where leave to appeal refused

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 142

Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 288, s 329

Abalos v Australian Postal Commission (1990) 171 CLR 167

Davison v Vickery’s Motors Ltd (in liq) (1925) 37 CLR 1

Devries v Australian National Railways Commission (1993) 177 CLR 472
Fox v Percy (2003) 214 CLR 118

Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611

Suttor v Gundowda Pty Ltd (1950) 81 CLR 418

Water Board v Moustakas (1988) 180 CLR 491

APPEARANCES & REPRESENTATION:

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 relevant times the appellant Louisa Galagher, trading as Park View Property Management (`Galagher’) was the proprietor of a retirement village known as Parkview Lodge (`the Lodge’) at Bethania, Brisbane.

  2. In March 2018 Galagher employed the respondent Stacey O’Donnell (`O’Donnell’) as a resident caretaker at the Lodge. After a probationary period that arrangement was confirmed or renewed in a written agreement (`the agreement’) purportedly executed by O’Donnell on 12 October 2018, and by Galagher’s authorised officer on 12 November 2018.

  3. Galagher concedes that the agreement remained in force until 25 February 2019.[1]

    [1]Transcript of hearing 8 April 2019 (`T’) page 24 lines 9-15.

  4. The agreement[2] provided for O’Donnell’s remuneration per annum as follows:

    Total Package   $62,900

    Base Salary      $38,000

    Food              $6,500

    Rent               $15,600

    Electricity       $2,800

    [2]Schedule Item 8.

  5. By early November 2018 O’Donnell was complaining of a medical condition of stress, in consequence of unhappy differences with Galagher and certain residents of the complex, which need not now be detailed. On 10 November 2018 O’Donnell ceased work as caretaker[3], but remained in residence at the Lodge. Gallagher honoured her `wage package’ up to and including 26 November 2018,[4] when O’Donnell’s sick leave expired, and payments according to the agreement ceased.[5]

    [3]T page 7 lines…

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AGLC
Galagher v O'Donnell [2020] QCATA 4
Case
[2020] QCATA 4
Decision Date

CaseChat Overview and Summary

The case of Galagher v O'Donnell involved the dispute over a caretaker agreement at a retirement village, where the accommodation rights were attached. The proprietor sought to terminate the caretaker's right of occupation, which was initially invalid, and later terminated the caretaker's employment due to ill health. The caretaker continued to occupy the premises until the agreement's termination, and the central issue was whether the caretaker was entitled to remuneration until the agreement was terminated, despite their incapacity. The claim for part remuneration was allowed, leading to the proprietor's appeal against the decision.

The legal issues the court had to decide were whether the decision of the Tribunal contained any appellable error, and if the primary findings of fact were disturbed on appeal. The court needed to consider if the decision was `glaringly improbable’ or contrary to compelling evidence. It was also necessary to determine whether it was an error of law to prefer one version of the facts to another, or to give less weight to a party’s case than they believed it deserved.

In its reasoning, the court held that an application for leave to appeal is not an opportunity to re-run the trial or to reiterate evidence that was tried and found wanting at first instance. It is not an opportunity to raise pleas or defences that could have been raised at the trial, but were not. The court emphasised that primary decisions of the Tribunal are normally expected to be final, and primary findings of fact are seldom disturbed on appeal. It was noted that it must be shown that the decision in question is `glaringly improbable’ or contrary to compelling evidence for it to be considered an appellable error. The court concluded that no such error was present in this case. Consequently, the application for leave to appeal was refused.

The final orders of the court were that the application for leave to appeal is refused, and the decision of the Tribunal remains in place. The caretaker is entitled to remuneration until the agreement was terminated, despite their incapacity.

Orders

Orders of the court

The application for leave to appeal is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

An application for leave to appeal is not an opportunity to re-run the trial, or to reiterate evidence that was tried and found wanting at first instance. It is not an opportunity to raise pleas or defences that could have been raised at the trial, but were not. Primary decisions of the Tribunal are normally expected to be final – hence the preliminary hurdle of leave before the substantive appeal is considered. Primary findings of fact are seldom disturbed on appeal. Before that is done, it must be shown that the decision in question is `glaringly improbable’ or contrary to compelling evidence.[27] That cannot reasonably be said in this case. It is not appellable error to prefer one version of the facts to another, or to give less weight to a party’s case than he or she thinks it deserves. Even if there are two reasonable views, a preference for one view over the other is not an appellable error.[28][N]o error of law occurs simply because the judge prefers one version of evidence to another or one set of inferences to another. This is his function. ... Even if the evidence is strongly one way the Appeal Court may not intervene simply because it reaches a different conclusion and this [is so] even if it regards the conclusion of the trial judge as against the weight of evidence.[29][27]Fox v Percy (2003) 214 CLR 118 at [28]-[29]; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178-179.[28] Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at [131].[29]Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151 per Kirby P.Conclusion I can discern no appellable error resulting in a substantial injustice.[30] Therefore this application for leave to appeal must be refused.[30]Pickering v McArthur [2005] QCA 294 at [3] per Keane JA; Secretary to the Department of Premier and Cabinet v Hulls (1999) 3 VR 331.ORDER The application for leave to appeal is refused.

Ratio Decidendi

Legal Principle Established

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