Jamesson v Magree

[2011] QCATA 141

CITATION: Jamesson v Magree [2011] QCATA 141

PARTIES:	Ms Barbara Jamesson
v
Mr Grant Howard Magree

APPLICATION NUMBER:            APL005-10               

MATTER TYPE: Appeals

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: Richard Oliver, Senior Member
Peta Stilgoe, Member

DELIVERED ON:   21 June 2011

DELIVERED AT:   Brisbane

ORDERS MADE:       Leave to appeal refused.

CATCHWORDS:

REOPENING – where application for reopening refused – where application for leave to appeal on same grounds as reopening

Queensland Civil and Administrative Tribunal Act 2009, ss 137, 138, 139(5), 142(3)

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
Cachia v Grech [2009] NSWCA 232

Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 197 ALR 201

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

Mr Oliver

1. In this matter the Appeal Tribunal consisted of Ms Stilgoe, QCAT Member and me.  I have had the benefit of reading her reasons in draft.  I agree with her reasons, and her conclusions, and the order she proposes.

Ms Stilgoe

1. Mr Magree was a tenant in part of a house owned by Ms Jamesson.  At the end of the tenancy, the Residential Tenancy Authority paid the bond to Ms Jamesson.  Mr Magree filed an application with the tribunal disputing the payment of the bond and seeking compensation.  At a hearing on 1 December 2010, at which Ms Jamesson did not appear, the learned Adjudicator ordered that Ms Jamesson pay Mr Magree $1,400.

1. Ms Jamesson applied to reopen the hearing; that application was refused because Ms Jamesson did not demonstrate why the hearing notice had not come to her attention until after the hearing. Ms Jamesson has now sought leave to appeal the learned Adjudicator’s decision. Because this is an appeal from a decision of the tribunal in its minor civil dispute jurisdiction, leave is necessary: s 142(3) Queensland Civil and Administrative Tribunal Act 2009.

1. Ms Jamesson’s grounds for the application for leave are:

a)    That she was disadvantaged in not receiving the notice of hearing until after the date had passed.

b)    The original decision was made without the benefit of all relevant information.

c)    The tenancy had been in good condition when Mr Magree entered into possession and he had failed to take care of it.

1. 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?[1]  Is there a reasonable prospect that the applicant will obtain substantive relief?[2]  Is leave necessary to correct a substantial injustice to the applicant caused by some error?[3]  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?[4]

   [1]        QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

   [2]        Cachia v Grech [2009] NSWCA 232 at [13].

   [3]        QUYD Pty Ltd v Marvass Pty Ltd (supra).

   [4]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.

1. Ms Jamesson’s first two points are, in effect, an application for leave to appeal the decision not to reopen the proceedings. Section 139(5) of the QCAT Act makes it clear, however, that no appeal lies from a decision about a reopening.

1. Ms Jamesson has provided the appeals tribunal with a number of documents and statements that support her third ground for leave to appeal. The tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined: ss 137 and 138 QCAT Act. The statutory declarations were all completed in January 2011, well after the date for hearing. Ms Jamesson has provided no explanation as to why this material was not available earlier save that she was not aware of the hearing on 1 December 2010. The tribunal has already indicated its view on this explanation. In the circumstances, the appeal tribunal will not allow Ms Jamesson leave to file fresh evidence.

1. 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.[5]  While some of the learned Adjudicator’s comments are, with the benefit of hindsight, unnecessary and, perhaps, gratuitous, the evidence available to him was capable of supporting his findings.  There is no reasonable case of error in the learned Adjudicator’s decision; there is no reasonable prospect that Ms Jamesson will be granted substantive relief on appeal; leave is not necessary to correct a substantial injustice and there is no question of general importance for which the public requires a decision of the appeals tribunal.  Leave to appeal should be refused.

   [5]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 197 ALR 201 at 207, 208.