O'Rourke v Maxwell - [2014] QCATA 236

CITATION:

O’Rourke & Anor v Maxwell & Anor [2014] QCATA 236

PARTIES:	Carol O’Rourke Brendon Jones (Applicants/Appellants)
v
Paul Maxwell Nerida Roche (Respondents)

APPLICATION NUMBER:

APL074 -14

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Thomas, President

DELIVERED ON:

26 August 2014

DELIVERED AT:

Brisbane

ORDER MADE:

The application for leave to appeal is refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where applicants appeared at hearing unprepared – where respondents alleged a contra deal – where applicants had no knowledge of contra deal – where tribunal expressed concern about sufficiency of rental ledger – where claim couldn’t be proven and was dismissed – where applicants filed additional evidence on appeal – whether appeal tribunal should accept additional evidence – whether grounds for leave to appeal

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 142(3)(a)(i)
Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 88(8)

Pickering v McArthur [2005] QCA 294, applied
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, 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

Ms O’Rourke and Mr Jones manage the Kuranda Rainforest Accommodation Park. Mr Maxwell and Ms Roche are tenants. Ms O’Rourke and Mr Jones filed an application for rent arrears of four weeks. A Magistrate, sitting as a member of the tribunal, dismissed their claim.
Ms O’Rourke and Mr Jones seek to appeal that decision on the bases that the learned Magistrate asked for detailed information that they were unable to provide, and, that Mr Maxwell and Ms Roche claimed there was a contra agreement of which they were not aware. They say they now have evidence that confirms their claim for rent arrears.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] 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 s 142(3)(a)(i).
[2][2005] QCA 294 at [3].
Ms O’Rourke and Mr Jones have filed additional evidence with their application for leave to appeal. The appeals 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]
[3]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.

An application for leave to appeal is not, and should not be,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] QCATA 236
Decision Date: 26 August 2014

CaseChat Overview and Summary

In the matter of O'Rourke v Maxwell, the applicants appealed a decision of the Residential Tenancy Tribunal of Victoria. The dispute arose from a residential tenancy agreement where the applicants, O'Rourke and their son, alleged breaches of the agreement by the respondents, Maxwell and another individual. The tribunal had dismissed the applicants' claims, finding insufficient evidence to support their allegations and concerns regarding the sufficiency of the rental ledger provided. The applicants sought leave to appeal, arguing that they were unprepared at the original hearing and had no knowledge of any alleged contra deal.

The legal issues before the court were whether the appeal tribunal should accept additional evidence provided by the applicants on appeal and whether there were grounds for leave to appeal. The applicants argued that they had not been given proper notice of the need to present their evidence and that the tribunal had erred in dismissing their claims without considering the additional evidence. The respondents contended that the tribunal's decision should be upheld as the applicants had not demonstrated any error in the original decision or presented compelling reasons for the additional evidence to be considered.

The court considered the principles governing leave to appeal in minor civil disputes and the role of the tribunal in evaluating evidence. The court found that the tribunal had not erred in dismissing the applicants' claims due to the insufficiency of evidence and the lack of a valid contra deal. The court held that the tribunal was not obliged to accept additional evidence that was not presented at the original hearing unless there were exceptional circumstances justifying its admission. The court concluded that the applicants had not demonstrated any exceptional circumstances and that the tribunal's decision should stand.

The court dismissed the application for leave to appeal, finding no grounds for the tribunal to reconsider the applicants' claims. The tribunal's decision was affirmed, and no appeal was permitted.

Orders