McAdam v Straschko & Carter

[2014] QCATA 139

CITATION: McAdam v Straschko & Carter [2014] QCATA 139

PARTIES:	Nina McAdam Neil McAdam (Applicants/Appellants)
v
Lidia Straschko John Carter (Respondents)

APPLICATION NUMBER: APL393-13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Thomas, President

DELIVERED ON: 13 June 2014

DELIVERED AT: Brisbane

ORDER MADE: The application for leave to appeal is refused.

CATCHWORDS:

APPEALS – LEAVE TO APPEAL – RESIDENTIAL TENANCY DISPUTE – whether grounds for leave to appeal

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 142(3)(a)(i)

Chambers v Jobling (1986) 7 NSWLR 1, cited

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, applied

Dearman v Dearman (1908) 7 CLR 549, applied

Fox v Percy (2003) 214 CLR 118, applied

Pickering v McArthur [2005] QCA 294, 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

1. Ms Straschko and Mr Carter rented a house from Mr and Ms McAdam. They were awarded $990 compensation by the tribunal for loss of amenities by way of a credit to their rent account.  They had claimed that the house had a number of items that did not work or were not accessible.

2. Mr and Ms McAdam seek to appeal that decision. 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, s142(3)(a)(i).

   [2][2005] QCA 294 at [3].

3. Mr and Ms McAdam’s application and submissions are not helpful in addressing these principles. It appears their position is that the tribunal was in error in making the findings it did and so it should be reversed.

4. Mr and Ms McAdam have filed an affidavit sworn by Pamela Lesslie, the principal of the letting agency.  The affidavit goes to the access to the storage cupboard.  There are a number of issues with this evidence.  Firstly, it purports to give evidence of what transpired between the agency’s former employee, Rhonda Clay and the tenants. It is not direct evidence which goes to that issue.  Even as indirect evidence, Ms Lesslie does not set out how she knows what Ms Clay told the tenants. The contents have not been tested in any way. In these circumstances, little weight could be placed on this evidence if it were admitted.  They are effectively seeking leave to rely upon additional evidence that was not before the tribunal.  

5. The appeal in this case is under s 147 of the QCAT Act. It is an appeal by way of rehearing, and is based on the record of the original proceedings. The appeal tribunal will only accept additional evidence if it was not reasonably available at the time the proceeding was heard and determined. Where a party seeks to rely on such evidence, the party must satisfy three tests: with reasonable diligence, could the evidence have been obtained for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?[3] There is no material before this appeal tribunal as to why this evidence could not have been presented at the original hearing.  In fact, Ms Lesslie attended the hearing and chose not to give evidence. There is nothing to suggest that the evidence could not have been obtained with reasonable diligence for use at the hearing. Such evidence should not be received by the appeal tribunal.

   [3]      Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.

6. Having regard to the evidence before the learned Magistrate set out in the original file, and the transcript of the hearing, it can be seen that many of the matters raised were considered by the learned Magistrate, including the Entry Condition Report, which was attached to Mr Carter’s affidavit sworn 26 July 2013.

1. 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,[4] however may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[5]  When considering whether the original decision maker was in error, the appeal tribunal must exercise its own discretion.

   [4]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125 -126.

   [5]Chambers v Jobling (1986) 7 NSWLR 1 at 10.

1. No error has been demonstrated and the findings of the learned Magistrate were clearly open on the evidence of the hearing. Therefore, there is no basis for leave to appeal. 

2. The tenants have in their submissions sought additional orders, some of which they sought originally but which the learned Member declined to order and some additional items.  The tenants have not chosen to appeal the decision.  In these circumstances, this appeal tribunal has no power to consider these matters.