O'Brien v Moore
[2013] QCATA 103
•15 March 2013
| CITATION: | O’Brien v Moore [2013] QCATA 103 |
| PARTIES: | Mrs Valentina O’Brien (Applicant/Appellant) |
| V | |
| Ms Deidre Moore (Respondent) |
| APPLICATION NUMBER: | APL300 -12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 15 March 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009, s 3(b) Dearman v Dearman (1908) 7 CLR 549, cited Fox v Percy (2003) 214 CLR 118, cited Chambers v Jobling (1986) 7 NSWLR 1, cited |
APPEARANCES and REPRESENTATION (if any):
The Appeal Tribunal heard and determined this matter on the papers in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’).
REASONS FOR DECISION
Mrs O’Brien is an elderly lady who self-managed her rental property at Wurtulla. Ms Moore was her tenant. Ms Moore moved out and asked Mrs O’Brien to release the bond. Mrs O’Brien refused, so Ms Moore filed an application in the Tribunal. Mrs O’Brien argued that she should receive the bond because of damage to the property. A Magistrate, sitting as an ordinary member of QCAT, ordered that the Residential Tenancies Authority pay Mrs O’Brien $452 and the balance to Ms Moore.
Mrs O’Brien wants to appeal that decision. She says that she was not allowed to speak unless the learned Magistrate asked her a question. She says that Ms Moore lied to the Tribunal and that the learned Magistrate did not accept Mrs O’Brien’s receipts for the damage.
Because this is an appeal from a decision of the Tribunal in its Minor Civil Dispute jurisdiction, leave is necessary. Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and 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. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?
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.[1]
[1]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.[2] 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.[3]
[2] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[3] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
It is true that the learned Magistrate conducted the hearing by questioning each party in turn and that the parties were not really given the opportunity to speak freely. The transcript shows the learned Magistrate had reason to adopt that approach. Mrs O’Brien was hard of hearing[4] and it appears that English was not her first language. The parties were quick to interrupt each other.[5] The learned Magistrate conducted the hearing in a way that met the Tribunal’s obligation to be accessible, fair, just, economical and quick.[6] Although Mrs O’Brien did not tell her story in the way she might have preferred, I am satisfied that she had the opportunity, and did, tell the learned Magistrate everything that was relevant to the dispute. I am not persuaded that the learned Magistrate was in error or that Mrs O’Brien suffered any injustice in the way the hearing was conducted.
[4] Transcript of Proceedings, 20 August 2012, page 2.
[5] See e.g. Transcript of Proceedings, 20 August 2012, pages 11, 16, 20.
[6] QCAT Act s 3(b).
Mrs O’Brien’s argument that the learned Magistrate did not accept her invoices is not supported by the evidence. The learned Magistrate did accept that Mrs O’Brien spent the money rectifying problems with the tenancy. She did not accept that Ms Moore was responsible for those problems. The learned Magistrate did ask Mrs O’Brien for extra receipts[7] but she did so to see if Mrs O’Brien could prove an element of her claim. This ground of appeal must fail.
[7] Transcript of Proceedings, 20 August 2012, page 20.
The learned Magistrate had the benefit of seeing and hearing from both Mrs O’Brien and Ms Moore. It is not my task to decide where the truth lay as between the competing versions given by the parties.[8] My sole duty is to determine whether there is an error in the primary decision. I have read the transcript and there is nothing in it that persuades me that the learned Magistrate should have taken a different view of the facts.
[8] Fox v Percy (2003) 214 CLR 118 at 129 per Gleeson CJ, Gummow and Kirby JJ.
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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