Graves v Paul Vertullo Real Estate
[2011] QCATA 270
•15 September 2011
| CITATION: | Graves v Paul Vertullo Real Estate [2011] QCATA 270 |
| PARTIES: | Mrs Terri Joanne Graves |
| v | |
| Paul Vertullo Real Estate trading as Paradise Point Professionals |
APPLICATION NUMBER: APL 080 -11
| MATTER TYPE: | Appeals |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Peta Stilgoe, Acting Senior Member |
DELIVERED ON: 15 September 2011
DELIVERED AT: Brisbane
ORDERS MADE: Leave to appeal refused.
| CATCHWORDS: | MINOR CIVIL DISPUTE – TENANCY – whether grounds for leave to appeal PROCEDURE – where delay in provision of reasons – where transcript ordered but not collected Queensland Civil and Administrative Tribunal Act 2009, s 143(4) Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Chambers v Jobling (1986) 7 NSWLR 1 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Mrs Graves rented a house through Paradise Point Professionals. At the end of the tenancy, Paradise Point Professionals claimed a refund of the bond and Mrs Graves claimed compensation of around $16,000 for defective conditions she experienced throughout the tenancy. The learned Adjudicator did not accept Mrs Graves’ claim and ordered that the bond be refunded to the owner.
Mrs Graves has appealed the learned Adjudicator’s decision on the grounds that the learned Adjudicator:
a) Did not give proper weight to Mrs Graves’ evidence.
b) Did not even listen to Mrs Graves’ evidence.
c) Accepted the evidence of Paradise Point Professionals without question and without proper consideration. Mrs Graves says that there appeared to be a prior relationship between the learned Adjudicator and Paradise Point Professionals.
d) Failed to require the parties who provided letters and statement to give evidence in person.
e) Dismissed Mrs Graves’ material without proper consideration.
f) Demonstrated personal bias against Mrs Graves.
Because this is an appeal from a decision of the tribunal in its minor civil dispute jurisdiction, leave is necessary. Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?
This appeal raises some interesting procedural issues. Mrs Graves received a copy of the learned Adjudicator’s decision on 7 July 2010. Mrs Graves says that her representative requested a copy of the reasons for decision on 13 July 2010. Tribunal records indicate that this was a request for the full transcript, which would have included reasons for the decision. The transcript was available on 29 September 2010 but it appears that it was not delivered. Mrs Graves asserts that the reasons were supplied on CD on 13 December 2010. Presumably, the tribunal’s request for payment of $506.00 – the transcript fee – was a factor in the non-delivery of the transcript and the delivery of a CD instead.
It is not acceptable that prospective appellants can rely on their own lack of action (in not paying for a transcript that was ordered) to delay the filing of an application for appeal. It is contrary to the spirit of the Queensland Civil and Administrative Tribunal Act 2009 that requires the tribunal to act in a way that is accessible, fair, just, economical, informal and quick.
The tribunal record does not permit me to take the issue any further and I am compelled to accept that, for whatever reason, Mrs Graves did not receive reasons for the decision until December 2010. An application for leave to appeal must be filed within 28 days of receipt of the reasons for decision. Mrs Graves should have filed her application by 10 January 2011. The application was filed on 17 January 2011, 7 days late.
The tribunal has the power to extend time limits, unless doing so would cause prejudice or detriment which cannot be remedied by an appropriate order for costs or damages.[1] The President of the tribunal has made it plain that the tribunal must focus on issues of fairness and justice.[2] The delay in filing the application for leave to appeal was short and there has been no application to stay the tribunal’s order. Paradise Point Professionals does not point to any particular prejudice that it will suffer from having the extension granted. To the extent that it is necessary, I extend the time for the filing of the application for leave to appeal until 17 January 2011.
[1] QCAT Act, s 61.
[2] Martin v Gosdchan [2011] QCATA 71.
The transcript shows that the learned Adjudicator did hear from Mrs Graves. She gave evidence about problems with the pool[3]; garden maintenance[4]; rodent infestation[5]; boat ramp access[6]; faulty power points[7]; and hot water issues[8]. There is no substance in Mrs Graves’ assertion that the learned Adjudicator did not listen to her evidence.
[3] Transcript page 8, lines 30-46; page 9, lines 1-19.
[4]Transcript page 10, lines 36-46; page 11, lines 40-41; page 13, lines 10-20; page 16, lines 24-26, 39-46.
[5] Transcript page 10, lines 36-46; page 15; page 17, lines 7-13.
[6] Transcript page 11, lines 45-47; page 12, lines 1-19.
[7] Transcript page 12, lines 21-29; page 15, lines 4-16.
[8] Transcript page 17, lines 19-27.
Neither party was required to call their witnesses. Mrs Graves provided statements and letters from contractors as did Paradise Point Professionals. At the hearing, Mrs Graves did not ask the learned Adjudicator for the opportunity to question the witnesses for Paradise Point Professionals. I can find no suggestion that Mrs Graves was at a disadvantage because the witnesses did not give oral evidence.
The transcript does not support Mrs Graves’ contention that there was a relationship between the learned Adjudicator and Paradise Point Professionals. In fact, page 1 of the transcript indicates that Paradise Point Professionals’ representative was not known to the learned Adjudicator.
The learned Adjudicator reserved her decision. It is apparent from the reasons that she considered all of the evidence very carefully. The learned Adjudicator preferred the evidence of Paradise Point Professionals because:
a) Mrs Graves could not substantiate her claims that she had complained to the agent many times.
b) The evidence indicated that the condition of the house while Mrs Graves was in occupation may have contributed to the rat problem.
c) Mrs Graves’ copy of the report from the Council had been altered.
d) The evidence from the Pool Doctor contradicted Mrs Graves’ evidence about the condition of the pool.
e) Mrs Graves refused to permit entry to the owner’s garden maintenance contractor, preferring to give the work to a friend.
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.[9]
[9]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.[10] As the High Court said in Fox v Percy:
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]
[10] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[11] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
There is nothing in the transcript to persuade me that the learned Adjudicator should have taken a different view of the facts or formed a different view of Mrs Graves’ evidence. I understand that Mrs Graves is not happy with the decision but that does not mean, and I can find no evidence, that the learned Adjudicator was biased against Mrs Graves.
There is no question of general importance that should be determined by the appeals tribunal; there is no reasonably arguable case that the learned Adjudicator was in error; there is no reasonable prospect of substantive relief on appeal; and there is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.
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