Groves v Simpson
[2014] QCATA 134
•30 May 2014
| CITATION: | Groves v Simpson [2014] QCATA 134 |
| PARTIES: | Justine Groves (Applicant/Appellant) |
| v | |
| Mark Simpson (Respondent) |
| APPLICATION NUMBER: | APL461 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Thomas, President |
| DELIVERED ON: | 30 May 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for leave to appeal is granted. 2. The appeal is dismissed. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where applicant not given opportunity to reply – where applicant threatened with contempt – whether grounds for leave to appeal – whether original decision should be set aside PROCEDURE – where hearings to occur in public – where Magistrate ordered closed hearing PROCEDURE – CONTEMPT – power of Magistrate to order contempt Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 142(3)(a)(i), s 147, s 219 Chambers v Jobling (1986) 7 NSWLR 1, applied Dearman v Dearman (1908) 7 CLR 549, applied |
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 Groves rented a home from Mr Simpson. At the end of her tenancy, she wanted the bond back. Mr Simpson wanted compensation for unpaid rent plus garden and pool maintenance. A Magistrate, sitting as a member of the tribunal, allowed Mr Simpson’s compensation claim and ordered that he receive the bond.
Ms Groves wants to appeal that decision on the bases that she was denied due process because Mr Simpson knowingly and intentionally misled the tribunal about his breaches of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld); she was denied a fair and equitable opportunity to put her case to the tribunal; and, that she was denied the opportunity to refute Mr Simpson’s unsubstantiated claims for damages. Ms Groves submits that the Magistrate did not provide adequate reasons for his decision and that he accepted quotes without evidence of receipts. She says that the Magistrate acted unfairly when he threatened her with contempt.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] The principles the appeal 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:
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.[2]
[1]QCAT Act s 142(3)(a)(i).
[2][2005] QCA 294 at [3].
The alleged breaches of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) relate to some photographs taken around the time, or shortly before, Ms Groves’ tenancy ended. Ms Groves says Mr Simpson had no right of entry onto the property that day. If Mr Simpson did breach his obligations under the Act, the breach did not cause Ms Groves any loss or damage for which she can claim compensation in this tribunal.
The learned Magistrate made the point that Mr Simpson was not claiming compensation for cleaning,[3] with the result that the photos showing rubbish were irrelevant. Ms Groves conceded that there was work to be done on the garden and pool,[4] so again, the photos as to that issue were irrelevant to these proceedings.
[3]Transcript page 1-13, lines 4-5.
[4]Transcript page 1-14, lines 1-13.
Ms Groves put her case first, and the transcript shows the learned Magistrate gave her a proper opportunity to do so. While Mr Simpson was explaining his case, Ms Groves did ask the learned Magistrate whether she could make extra comments.[5] The learned Magistrate replied, to the effect, “just a moment”.
[5]See, for example, transcript page 1-8, line 41; page 1-12, line 17.
Contrary to the learned Magistrate’s assertion,[6] tribunal proceedings are public hearings.[7] The learned Magistrate’s threat to deal with Ms Groves for contempt is regrettable, as the power to punish a person for contempt lies only with judicial members of the tribunal.[8] These errors, however, do not go to the conclusion reached by the learned Magistrate, and can not be said to have caused Ms Groves any substantial injustice.
[6]Transcript page 1-2, line 25.
[7]QCAT Act s 90(1).
[8]QCAT Act s 219(5).
At the end of Mr Simpson’s case, there was an exchange between Ms Groves and the learned Magistrate.[9] The conversation related to the photographs. At the end of the exchange, the learned Magistrate started to give his reasons for decision, without further reference to Ms Groves and without giving her the chance to talk about those further matters she wanted to raise during Mr Simpson’s submissions. The learned Magistrate should have given Ms Groves an opportunity to address those issues, and his failure to do so is an error, and justifies granting leave to appeal.
[9]Transcript page 1-12, line 34 to page 1-14 line 28.
Ms Groves’ grounds of appeal raise questions of mixed fact and law, and therefore the appeal is decided by way of rehearing.[10] Such a rehearing is on the evidence which was before the learned Magistrate. The appeal tribunal may confirm or amend the decision, or set aside the decision and substitute its own decision,[11] and may accept additional evidence when considering the appeal.[12]
[10]QCAT Act s 147(2).
[11]QCAT Act s 147(3).
[12]QCAT Act s 147(2).
The appeal tribunal will not usually disturb findings of fact on appeal if it considers the conclusions of the decision maker below were able to be made on the evidence before them,[13] however may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[14]
[13]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[14]Chambers v Jobling (1986) 7 NSWLR 1 at 10.
The learned Magistrate gave brief reasons, which set out why he preferred Mr Simpson’s evidence to Ms Groves’. In QCAT’s minor civil disputes jurisdiction, giving immediate oral decisions accords with the spirit and purpose of the QCAT Act. Those decisions will not be exposed to criticism which fails to acknowledge the circumstances in which they are given, or the pressure of the tribunal caseload. In the circumstances, his reasons are sufficient.
Ms Groves has filed additional evidence. As I have already noted, she does not dispute that the pool needed work. The lowest quote for that work is $550. Mr Simpson bought chemicals to try to fix the problem and he provided copies of the receipt. The learned Magistrate’s decision to order $717.35 for the pool should be confirmed.
The learned Magistrate did accept a quote rather than a receipt for the pool maintenance. Mr Simpson explained that he had not fixed the pool because he could not afford it.[15] The learned Magistrate was entitled to accept that explanation and order compensation on a quote.
[15]Transcript page 1-10, line 14.
Ms Groves conceded there was some work to be done in the garden but she denied the extent of the claim. Ms Groves left the property around 19 June 2013. Mr Simpson’s quote is dated 22 June 2013. The learned Magistrate did not accept that all of the work quoted was reasonable so he ordered Ms Groves pay half of the invoiced amount. This finding was open on the evidence. I can find no compelling reason to come to a different view and therefore, the decision should be confirmed.
Ms Groves concedes the rent and water charge. Contrary to Ms Groves’ submission, Mr Simpson supplied receipts for the light bulbs and stove element. The learned Magistrate’s findings about Mr Simpson’s claims for compensation were open on the evidence, and should also be confirmed.
On appeal, Ms Groves pressed her claim for compensation. As to the claim for loss of amenity for the faulty air conditioner, Mr Simpson told the learned Magistrate that it was working but could not cope with lots people in the one room.[16] Such a finding was open to the learned Magistrate. Ms Groves has sworn a statement for the appeal tribunal but it is silent about Mr Simpson’s comment, which therefore remains the sole evidence.
[16]Transcript page 1-11 lines 35-42.
Similarly, Ms Groves has provided no new evidence about the faulty light switch or plumbing. I can find no compelling reason to upset the learned Magistrate’s decision on these points.
The appeal should, therefore, be dismissed.
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