Hall & Scott v Rutherford
[2013] QCATA 50
•25 February 2013
| CITATION: | Hall & Scott v Rutherford [2013] QCATA 50 |
| PARTIES: | Mr Graham Hall Ms Denise Scott (Applicants/Appellants) |
| V | |
| Mr Wayne Rutherford Mrs Trish Rutherford (Respondents) |
| APPLICATION NUMBER: | APL200 -12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Senior Member |
| DELIVERED ON: | 25 February 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | TENANCY DISPUTE – where tenancy terminated – where claim for compensation because of infestation – where conflicting evidence on cause of infestation – whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549; Chambers v Jobling (1986) 7 NSWLR 1 |
APPEARANCES and REPRESENTATION (if any):
The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Mr and Mrs Rutherford rented a home from Mr Hall and Ms Scott. Shortly after they moved in, they complained that they were being bitten by fleas. The owners arranged for a flea treatment but the problem persisted. The Rutherfords eventually terminated the lease, with the owners’ consent. They claimed $13,211 as the costs of dealing with the fleas. The learned Adjudicator ordered that the owners pay the Rutherfords $7,890.85.
Mr Hall and Ms Scott have appealed that decision. Because this is an appeal from a minor civil dispute, they must seek leave to appeal. The tribunal may grant leave if the dispute raises a question of general importance and the public would benefit from a decision on that question. It may also grant leave if Mr Hall and Ms Scott shows a reasonably arguable case of error and a reasonable prospect that they will obtain substantive relief if the error is corrected.
A tribunal member does not make a error simply because he preferred one version of the facts to another.[1] The tribunal will not grant leave simply because one party wants to re-argue the case. That is the purpose of the requirement for leave; to prevent a retrial on the merits.
[1]Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611
A tribunal’s finding of fact will not usually be disturbed on appeal if the facts upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[2]
[2]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
An appeal tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’.[3] 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.[4]
[3] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[4] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
The learned Adjudicator considered all of the evidence carefully. He had the advantage of thoughtful submissions from the owners’ agent. He acknowledged he had difficulty deciding the cause of the problem[5]. However, as the learned Adjudicator observed[6], the parties agreed that there was a flea problem. The learned Adjudicator concluded, as he was entitled to do, that the flea problem justified some compensation to the Rutherfords.
[5] Transcript 18 April 2012 at page 47
[6] Transcript 18 April 2012 at page 49
The learned Adjudicator’s decision can be supported by the evidence. It is not “contrary to compelling inferences”, although another adjudicator, hearing the same case, may have decided it differently. Unfortunately for Mr Hall and Ms Scott, that is not the test.
I note that Ms Scott is very ill and that the learned Adjudicator’s order is onerous to the owners. Again, unless they can show a substantial error by the learned Adjudicator, these are not matters that I can take into account.
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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