Germanos v Cosgrove
[2013] QCATA 203
•12 July 2013
| CITATION: | Germanos v Cosgrove & Anor [2013] QCATA 203 |
| PARTIES: | Linda Maria Germanos (Applicant/Appellant) |
| v | |
| Adam Cosgrove (First respondent) and Anna Hochstadt (Second respondent) |
| APPLICATION NUMBER: | APL129-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 12 July 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Application for leave to appeal filed by Linda Germanos is dismissed. 2. Counter-application filed by Adam Cosgrove and Anna Hochstadt is dismissed. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where applicant entered into a tenancy agreement with the respondents – where notice to remedy breach issued by respondents – where applicant vacated the premises PRACTICE AND PROCEDURE – ADDITIONAL EVIDENCE – where applicant seeks to rely on additional evidence – whether new evidence reasonably available at original hearing –whether additional evidence should be accepted Acts Interpretation Act 1954 (Qld), s 14A Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 48(1) Cachia v Grech [2009] NSWCA 232, cited |
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.
REASONS FOR DECISION
Linda Germanos entered into a General Tenancy Agreement with Adam Cosgrove for residential premises at Mountain Creek. The property was managed by Harcourts Mooloolaba and the agreement was for a fixed term between 11 July 2011 and 10 October 2012. During the tenancy Ms Germanos lived with her three children who are listed on the tenancy agreement as ‘approved occupants’.
In May 2012, Mr Cosgrove and his partner, Anna Hochstadt, moved back into a granny flat that was attached to the property Ms Germanos rented. Shortly after this time the parties fell into dispute.
After receiving a Notice to leave from Harcourts, Ms Germanos and her children vacated the property on 10 October 2012.
The Residential Tenancy Authority received a refund of rental bond claim from Ms Germanos on 18 October seeking $1,940.00. A Notice of claim was sent to Harcourts giving it until 6 November to lodge a Dispute resolution request with the RTA. Harcourts did not lodge a request and the RTA released the full bond to Ms Germanos in accordance with s 136 of the Residential Tenancies and Rooming Accommodation Act 2008 (‘RTRA Act’).
On 25 January 2013, Mr Cosgrove and Anna Hochstadt brought proceedings in the Minor Civil Dispute jurisdiction of the Tribunal seeking compensation for water charges, and the costs for repairs and cleaning they alleged they had incurred, in the total sum of $3,542.43.
Ms Germanos brought a counter-application claiming ‘[d]amages and loss of income’ in the sum of $2,500.00.
The matter was heard and determined by a Magistrate sitting as a Member of the Tribunal on 13 March 2013. The learned Magistrate dismissed the counter-application[1] and ordered that Ms Germanos pay Mr Cosgrove and Ms Hochstadt the sum of $1,535.00.
[1]Audio of Proceedings, Cosgrove & Anor v Germanos (Queensland Civil and Administrative Tribunal, MCDT29-13, Magistrate Hennessy, 13 March 2013) 34:57.
Appeal
Ms Germanos seeks to appeal that decision. She may appeal as of right on a question of law[2] but needs the leave of the Appeal Tribunal if she wishes to appeal on questions of fact or mixed law and fact.[3] Her grounds of appeal raise a question of fact: Ms Germanos argues that the decision was wrong because the Magistrate made findings based on evidence which, in her submission, was ‘uncorroborated’ and ‘in dispute’. In particular, she contends the Magistrate erred in finding that:
1. the premises were vacated in an ‘unsatisfactory condition’; and
2. she was responsible for the damage caused to the spa.
[2]QCAT Act s 142.
[3]Ibid s 142(3)(b).
As she wishes to appeal on what would be properly characterised as questions of fact, she must first obtain leave to appeal.
The question whether or not leave to appeal should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?[4] Is there a reasonable prospect that the applicant will obtain substantive relief?[5] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[6] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[7]
[4]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[5]Cachia v Grech [2009] NSWCA 232 at [13].
[6]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[7]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[8] An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.[9] As the High Court said in Fox v Percy[10]:
In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.[11]
[8]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[9]Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[10](2003) 214 CLR 118.
[11]Ibid 128 per Gleeson CJ, Gummow and Kirby JJ.
The proceedings before the learned Magistrate were recorded and I have listened to that recording. I am not persuaded the learned Magistrate made any mistake in assessing this factual dispute or the evidence surrounding it. The recording makes it clear that the learned Magistrate took care to receive evidence from Ms Germanos and to ensure she had an opportunity to respond to the list of claims.[12]
[12]Audio of Proceedings, Cosgrove & Anor v Germanos (Queensland Civil and Administrative Tribunal, MCDT29-13, Magistrate Hennessy, 13 March 2013) 15:08.
The learned Magistrate’s findings were fairly and reasonably open on the evidence before her. No error is apparent on the face of them; indeed, it is clear there were no compelling inferences that were contrary to the findings made by the learned Magistrate in the face of the evidence presented at the hearing.
Reduced to its essence, Ms Germanos’ appeal arises from the fact that she did not have sufficient or adequate evidence to dispute the claims of Mr Cosgrove and Ms Hochstadt. She now seeks to produce additional evidence in support of her appeal.
The question for the Appeal Tribunal is whether it should allow her to do so. Under s 147 of the QCAT Act an appeal on the question of fact is to be decided by way of rehearing, ‘with or without the hearing of additional evidence as decided by the Appeal Tribunal’.
Ordinarily, special grounds are needed before additional evidence is received in an appeal. As Thomas J (as his Honour then was) observed in Clarke v Japan Machines (Australia) Pty Ltd[13] it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; and that the evidence must be such that it would probably have an important influence on the result, although it need not be decisive; and, it must be apparently credible.
[13][1994] 1 Qd R 404 at 408 (‘Clarke’).
It is the first of these tests which is relevant here. Ms Germanos has filed an unsigned statement of Mark Hayley, dated 7 April 2013. Mr Hayley states he is involved in ‘pool maintenance’, but only took care of the maintenance of the garden.
Ms Germanos is not a lawyer. The question, then, is whether lay persons are subject to the same test in terms of preparation for a hearing. Nothing in Clarke suggests that the test only applies to parties who are legally represented. An affirmative answer is compelling – particularly when the need for evidence relevant to the claims and allegations made by her opponents is or should be obvious to a non-lawyer.
There is nothing in Ms Germanos’ submissions that is persuasive that the statement of Mark Hayley could not reasonably have been obtained by her before the hearing took place. She ought to have exercised reasonable diligence to consider, and prepare her case in terms of obtaining appropriate evidence. With respect, she did not do so.
Once these things are appreciated, there is no reasonably arguable case of error in the decision of the learned Magistrate and a grant of leave is not necessary to correct a substantial injustice to the applicant. No question of general importance arises. Finally, there is no reasonable prospect that Ms Germanos, if granted leave, would then obtain substantive relief in an appeal.
For these reasons, the application for leave to appeal must be refused.
Counter-Application
On 28 May 2013, Mr Cosgrove and Ms Hochstadt filed a counter-application seeking to ‘amend the original decision’ and ‘order Linda Marie Germanos pay Adam Paul Cosgrove and Anna Katharina Hochstadt the amount of $3,729.60 forthwith’.
The reasons they give for such an order are:
1. An allegation of procedural unfairness, in the nature of a complaint that the learned Magistrate failed to consider all of the ‘extensive’ evidence provided to the Tribunal.
2. An error on the part of the learned Magistrate arising out of her acceptance, and subsequent reliance, on evidence which, in their submission, was ‘false and misleading’.
3. The wrongful admission, by the Magistrate, of evidence which was not filed before its ‘due date’, and limited the time in which they could gather further evidence in response.
The recording of the proceedings does not support these arguments and, indeed, shows that they cannot be made out.
An allegation that a Member of the Tribunal has failed to observe the rules of natural justice and not afforded procedural fairness to a party in a matter is a serious matter. There is no substance, however, in that allegation here: the learned Magistrate took great care to receive and review evidence produced by both parties.
While the hearing, for the most part, involved questioning Ms Germanos, the learned Magistrate had a good reason to adopt that approach: this was a relatively simple case with one central issue – whether Ms Germanos could provide evidence to dispute her opponents’ claims.
It is unnecessary to consider the second and third grounds because, for reasons which follow, the Appeal Tribunal does not have jurisdiction to determine the purported ‘counter-application’.
Division 2, Part 6 of the Queensland Civil and Administrative Tribunal Rules 2009 (‘QCAT Rules’) provides for the way in which counter-applications are dealt with in the Tribunal. Rule 48(1) states:
A respondent to an application or referral for a proceeding, may in response to the application or referral, apply to the tribunal for stated orders against another person, who may or may not be a party to the proceeding…
In this matter Mr Cosgrove and Ms Hochstadt have filed a counter-application, dated 28 May 2013, in response to the submissions supporting Ms Germanos’ application for leave to appeal. The question is whether a ‘respondent to an application’ within the meaning of r 48(1) includes a respondent to an application for leave to appeal, or (if leave is granted) to an appeal.
Under s 142(1) of the QCAT Act a party to a proceeding may appeal against a decision of the Tribunal, and need not make an ‘application’ to do so.[14] It follows that – strictly speaking – a respondent in appeal proceedings may not make a counter-application. What then of an application for leave to appeal?
[14]See paragraph [8] of the reasons for decision, above.
The term ‘application’ is defined in Schedule 3 to the QCAT Act to mean an application to the Tribunal under that Act, or an enabling Act. The basic rule of statutory construction is that legislative provisions are to be construed according to their natural and ordinary meaning;[15] and, in a way that will best achieve the purpose of the relevant Act.[16]
[15]Marshall v Director General, Department of Transport (2001) 205 CLR 603 at 623 per Gaudron J.
[16]Acts Interpretation Act 1954 s 14A.
In my view the natural and ordinary meaning of the term, and the context in which it is found in the QCAT Rules, means that a counter-application may not be brought during an appeal or an application for leave to appeal. This construction of r 48(1) is supported by the inherent limitation of the rule which provides that the respondent may only apply for ‘orders against another person’. The orders sought in the counter-application made in response to the application for leave to appeal in this matter were to ‘amend the original decision’ and, in effect, substitute new orders against Ms Germanos.
Alternatively the counter-application could be considered as, itself, an appeal (albeit one filed using the wrong form). The effect, however, is the same, given that ss 143(4)(b) and (5)(a) of the QCAT Act provide that an appeal must be filed within 28 days after the person is given written reasons for the decision being appealed against. Here, the decision was given to Mr Cosgrove and Ms Hochstadt in March and the counter-application was filed in May.
For these reasons, I am persuaded the Appeal Tribunal does not have jurisdiction to consider the orders sought by Mr Cosgrove and Ms Hochstadt to amend the decision.
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