Nielsen v Runaway Bay Village Pty Ltd
[2014] QCATA 85
•14 April 2014
| CITATION: | Nielsen v Runaway Bay Village Pty Ltd [2014] QCATA 85 |
| PARTIES: | Fay Monica Nielsen (Applicant/Appellant) |
| v | |
| Runaway Bay Village Pty Ltd (Respondent) |
| APPLICATION NUMBER: | APL057 -14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 14 April 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – RETIREMENT VILLAGE – where fire alarm activated – where village on-charged cost of unwanted fire alarm – where application to be relieved from cost of unwanted fire alarm – whether tribunal entitled to rely on employees’ evidence – whether applicant bears onus of proof – whether grounds for leave to appeal Fire and Rescue Service Act 1990 (Qld) s 104DA Dearman v Dearman (1908) 7 CLR 549 |
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 Nielson is a long term resident of the Runaway Bay Village. On 30 May 2012, a fire alarm was activated in her unit. In accordance with published practice, the Village on-charged the Queensland Fire and Rescue Service charge for unwanted fire alarm activation. Ms Nielson did not want to pay the charge, saying that she was simply boiling an egg at the time and that activity could not have activated the alarm unless the alarm was faulty. She filed a dispute notice under the Retirement Villages Act 1999 (Qld) and then an application for a tribunal hearing. The tribunal dismissed Ms Nielson’s application.
Ms Nielson has filed an application for leave to appeal that decision. She says that the learned Member did not consider the relevance of Toowong Units Pty Ltd t/as Teneriffe Hill Apartments v Beal[1]. She says that it has not been proven that her cooking activities activated the alarm. She says that the Village’s billing policy does not relieve it from the obligation to ensure the alarm system is operating as required. She says the learned Member erred in relying on evidence from Village employees. She says the false alarms have a social and economic impact on fire services and the general public.
[1]MCDT2858-10, unreported.
The principles the appeals 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[2]:
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][2005] QCA 294 at [3].
The learned Member did have a copy of the tribunal’s decision in Toowong Units Pty Ltd but he did not refer to it in his reasons for decision. That is understandable. Toowong Units Pty Ltd is a decision on its facts in the residential tenancies jurisdiction of the tribunal. That is a very different jurisdiction from that conferred by the Retirement Villages Act. Toowong Units Pty Ltd has little precedent value, particularly when the learned Member was making a decision largely based on credit.
The Village published the fact that it might on-charge unwanted fire alarms callout charges. As Ms Nielson’s material before the learned Member showed a “chargeable unwanted alarm” is one where:
…after investigation by QFRS, it is deemed that the condition or situation would not have resulted in any danger to the premises and/or occupants from the fire.
QFRS will not levy a charge if the cause of the alarm is beyond the control of the building owner. QFRS will levy a charge if it considers the cause of the alarm was avoidable.
Therefore, to avoid the charge, Ms Nielson had to demonstrate to the learned Member that the alarm was beyond the control of the building owner and not avoidable. Unlike Toowong Units Pty Ltd, Ms Nielson, as applicant, had the onus of proof.
The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[3] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[4]
[3]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[4]Chambers v Jobling (1986) 7 NSWLR 1 at 10.
The learned Member had sworn evidence from two Village employees that, on entering Ms Nielson’s home, they smelt smoke, observed all windows and doors open, the fans on and Ms Nielson waving her arms around. Ms Nielson may say that the employees’ evidence was “slanderous, implausible, preposterous and untrue” but the learned Member formed a different view. The evidence can support the learned Member’s findings and I can find no reason to come to a different view.
Ms Nielson is probably right in her assertion that the Village’s billing policy does not relieve it from the obligation to ensure the alarm system is operating as required. However, as I have already observed, she bears the onus of proving, on the balance of probabilities, that the Village failed in this duty. The learned Member was not satisfied that Ms Nielson had satisfied this onus. I agree with his conclusion; mere assertions of a duty do not amount to evidence.
There is no doubt that false alarms have a social and economic impact on fire services and the general public. The tribunal does not, however, create social or economic policy. It determines disputes in accordance with the relevant law and evidence.
Section 104DA of the Fire and Rescue Service Act 1990 (Qld) requires the Village to maintain the monitored system to ensure an unacceptable number of unwanted alarms are not signalled from the system. Unless Ms Nielson presented evidence to show that the Village did not comply with that obligation, the section is of no relevance. The learned Member, evidently, was not satisfied that Ms Nielson had provided that evidence. I have considered the material filed and can find no reason to come to a different view.
Ms Nielson takes issue with the learned Member’s comment that she was trying to preclude any action by the Village to enforce payment of the fee and that the learned Member could find no relevant section of the QCAT Act to support her claim.
The point the learned Member was making was that he was not convinced Ms Nielson’s dispute was a retirement village dispute within the meaning of the Retirement Villages Act. To avoid the problem of whether the tribunal had jurisdiction, the learned Member characterised the dispute as one where Ms Nielson sought an order that a stated amount was not due or owing. By characterising the dispute in this way, the learned Member adopted the wording of s 13(2)(a)(ii) so he could deal with it as a minor civil dispute. That reasoning assumes that the Village is a “trader”.
Ms Nielson referred the appeals tribunal to s 3(b) of the QCAT Act. That section is a general requirement that the tribunal conducts matters before it fairly, justly, economically and quickly. It does not confer jurisdiction on the tribunal.
There is no reasonably arguable case that the learned Member was in error. Leave to appeal should be refused.
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