Griffiths v Watson
[2014] QCATA 157
•30 June 2014
| CITATION: | Griffiths v Watson [2014] QCATA 157 |
| PARTIES: | Sharon Griffiths (Applicant/Appellant) |
| v | |
| Jenna Watson Scott Watson (Respondents) |
| APPLICATION NUMBER: | APL067-14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 30 June 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 36, 38, 61 Dearman v Dearman (1908) 7 CLR 549 |
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 (Qld) (QCAT Act).
REASONS FOR DECISION
Ms Griffiths is the owner of a property at Southport. Mr and Ms Watson were her tenants. On 17 June 2013, Ms Griffiths filed an application for compensation for rent arrears, the cost of removing bed bugs, repair costs, replacement of furniture and cleaning costs. On 10 July 2013, the tribunal ordered the Ms Griffiths receive the bond and that the Watsons pay her an additional $362.
On 14 November 2013, Ms Griffiths filed another claim against the Watsons but the detail of her claim commenced with these words “overturn the decision”. Her reasons for seeking the order clearly indicate that she was not happy with the tribunal’s decision of 10 July 2013. At the same time, Ms Griffiths applied to reopen the proceeding on the basis of significant new evidence. On 10 December 2013, the tribunal dismissed Ms Griffiths’ second application and her application to reopen.
Ms Griffiths wants to appeal the July decision. She says that there were issues raised in the hearing that she was not able to address. She has provided the appeals tribunal with ‘detailed information to show that the Watsons introduced bed bugs into the property. More detail could be provided but it is believed this is sufficient…’.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The principles the appeals tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as His Honour then was) in Pickering v McArthur[1]:
There are numerous authorities, in varying language but with unvarying emphasis, that leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.
[1][2005] QCA 294 at [3].
Extension of time
The tribunal received Ms Griffiths’ application for leave to appeal on 9 January 2014. Ms Griffiths submits that this was within 28 days after the relevant day. That cannot be correct.
Ms Griffiths points out that the time to file an application for leave to appeal under s 143(3) of the QCAT Act is 28 days after the relevant day. “Relevant day” is defined as the day a party receives reasons for decision. Ms Griffiths says she received the tribunal’s reasons for decision on 14 October 2013. Therefore, she had until 12 November 2013 to file an application for leave to appeal.
Ms Griffiths did not file an application for leave to appeal before 12 November 2013. Instead, she filed a fresh application in the minor civil disputes jurisdiction, together with an application to reopen on the new file. She sent that application by facsimile on 4 November 2013.
Because the application to reopen was not filed on the original file, the tribunal failed to consider it within its normal timeframes. The tribunal finally considered that application when it dismissed the new application, in December 2013.
Ms Griffiths is not appealing the December decision. She is appealing the July decision. The relevant day, therefore, is still 14 October 2013. Section 141(2) states that an appeal cannot be made until a decision on a reopening application is finally dealt with, but it does not state that time starts again from the date the reopening decision is made.
Even if time did start afresh, Ms Griffiths is out of time. Twenty-eight days from 10 December 2013 is 7 January 2014.
The tribunal does have power to extend a time limit fixed for the start of a proceeding[2]. I decline to exercise that discretion for three reasons.
[2]QCAT Act s 61(1)(a).
Firstly, Ms Griffiths failed to pay the required fee for both the application to reopen and her application for leave to appeal when she sent the documents to the tribunal. A proceeding in the tribunal starts when the principal registrar accepts it[3], and acceptance is not conditional on the payment of the prescribed fee. The consequence of not paying a fee is that the tribunal cannot take any action on the proceeding[4]. Ms Griffiths obtained the benefit of filing a proceeding, but the Watsons did not see her application until some time later. In the case of the application for leave to appeal, Ms Griffiths did not pay the filing fee until 10 February 2014, almost a month later. I can accept one oversight in the payment of the fee. I cannot accept that Ms Griffiths did not appreciate she had to pay a fee for the application for leave to appeal.
[3]Ibid s 36.
[4]Ibid s 38(2).
The second reason is that Mr and Ms Watson are entitled to have this matter finalised. While Ms Griffiths is not responsible for the delay in obtaining reasons, she has been the cause of every subsequent delay. I have already mentioned that she did not pay the fees immediately on filing her applications. She did not file the application to reopen on the original file, so that it did not come to the tribunal’s attention as soon as it should have. If Ms Griffiths had pursued her rights diligently, I may have been inclined to exercise my discretion in her favour. If she had filed an application for leave to appeal and to extend time shortly after the tribunal’s second decision, rather than wait until the last possible moment, I may have extended time.
The third reason is that the application for leave to appeal is really just a third attempt to agitate the same issue. There have been two hearings. At the second hearing, the learned Justices received all of the evidence Ms Griffiths now wants to put before the appeals tribunal. The learned Justices allowed her to give evidence and cross-examine the Watsons.
The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[5] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[6]
[5]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[6]Chambers v Jobling (1986) 7 NSWLR 1 at 10.
There is nothing in Ms Griffiths’ fresh material, or submissions, that persuade me the learned Justices were in error.
Leave to appeal should be refused.
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