Newman v Humphreys

[2011] QCATA 160

CITATION: Newman v Humphreys [2011] QCATA 160

PARTIES:	Felicity Newman t/as All Things Christmas (Applicant/Appellant)
v
Terrence Humphreys (Respondent)

APPLICATION NUMBER:   APL031-11

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Judge Fleur Kingham, Deputy President

DELIVERED ON: 29 June 2011

DELIVERED AT: Brisbane

ORDERS MADE:      1.    The application for leave to appeal is dismissed.

CATCHWORDS: 

APPEAL – LEAVE TO APPEAL – Minor Civil Dispute – where no error in the way the matter was determined at first instance – where applicant sought to raise on appeal claims not made in her response to the claim – whether an appeal the forum in which to do this

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

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. This is an application by Ms Newman for leave to appeal, and, if leave is granted, to appeal a decision made in a Minor Civil Dispute hearing determined by a Magistrate sitting in her capacity as a Member of QCAT.  Mr Humphreys claimed arrears of rent he said Ms Newman owed in relation to the lease of a café.  Ms Newman denied an agreement to pay the amount claimed.  The matter was heard by the learned Magistrate and determined in Mr Humphreys’ favour.

2. As these proceedings involve a Minor Civil Dispute leave to appeal is required[1].  Leave to appeal will only ordinarily be granted where there is some question of general importance about which a decision of the Appeal Tribunal would be to the public advantage; or there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief.

   [1]        Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(a)(i).

3. Ms Newman has made no complaint about the learned Magistrate’s decision or about her conduct of the hearing.  The grounds of appeal relate solely to claims that Ms Newman says she has against Mr Humphreys.  They relate to his conduct during the course of negotiations for Ms Newman to buy Mr Humphreys’ business.  Those negotiations failed but, in the course of them, Ms Newman alleges Mr Humphreys took or sold or damaged goods owned by her and holds items belonging to her.

4. These were not matters that Ms Newman raised in her written response to Mr Humphreys’ claim.  Had she done so, they could have been determined in the original proceedings.  Because they were not, the learned Magistrate correctly, confined the hearing to those matters dealt with in Mr Humphrey’s claim and Ms Newman’s response.  The learned Magistrate noted that these other matters which Ms Newman raised for the first time at the hearing could well be the subject of a claim against Mr Humphreys and recommended to Ms Newman that she obtain advice about those.  Respectfully, the learned Magistrate was correct to confine the hearing to those matters properly raised by the material filed by the parties.

5. Ms Newman is now seeking to raise these matters on appeal.  An appeal is not the proper forum to raise new claims against the other party.  Ms Newman should obtain advice about how she might pursue these claims against Mr Humphreys.

6. The parties were treated fairly by the learned Magistrate.  The decision she made was clearly open on the evidence before her.  Ms Newman has not alleged the learned Magistrate committed any error. 

7. There is no basis upon which to grant leave to appeal in these proceedings and Ms Newman’s application for leave is dismissed.