Passmore v Egan
[2014] QCATA 250
•26 August 2014
| CITATION: | Passmore v Egan [2014] QCATA 250 |
| PARTIES: | Clinton John Passmore (Applicant/Appellant) |
| v | |
| Kim Deanne Egan (Respondent) |
| APPLICATION NUMBER: | APL250-14 |
| 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: | Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – RENTAL BOND – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 142(3)(a)(i) Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 |
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 Egan rented Mr Passmore’s property. When the tenancy ended, Ms Egan applied for the return of her bond and Mr Passmore applied for compensation for unpaid rent, unpaid water bills and clean up costs. Of the $1,200 bond, a Magistrate, sitting as a member of the tribunal ordered that Mr Passmore be paid $542 and Ms Egan be paid $658.
Mr Passmore wants to appeal that decision. He disputes comments that he had no evidence about efforts required to clean the house after Ms Egan left. He disputes the value of Ms Egan’s photos. He says that one of his photos was “missing” from the evidence.
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]Pickering v McArthur [2005] QCA 294 at [3].
Mr Passmore filed fresh evidence with his application for leave to appeal. He filed ‘before’ and ‘after photos’ of the pool and copies of invoices for cleaning expenses.
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]
[3]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.
An application for leave to appeal is not an opportunity to correct any deficiencies of a party’s case at the initial hearing. The appeal tribunal has the powers prescribed to it by s 147 of the QCAT Act: it is an appeal by rehearing. An appeal by way of rehearing is based on the record of the proceedings before the original decision maker. Mr Passmore admitted to the learned Magistrate[4] that he forgot to have invoices available. He submitted to the appeal tribunal that he ‘should’ have put the photograph in his material before the learned Magistrate. Mr Passmore could have provided the evidence to the tribunal without much effort. He did not do so. The fresh evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Magistrate.
[4]Transcript page 1-12, line 40 – 41.
The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[5] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[6]
[5]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[6]Chambers v Jobling (1986) 7 NSWLR 1 at 10.
The learned Magistrate was not impressed by either party at the hearing.[7] He accepted Mr Passmore’s claim where there was clear evidence that permitted him to do so. He did not accept Mr Passmore’s claim when, as with the pool and the invoices, there was an obvious lack of evidence.
[7]Transcript page 1-20, lines 41 – 46.
The role of the appeal tribunal is to determine whether, applying the principles I have just outlined as to the matters relevant to leave to appeal and as to factual findings by the learned Magistrate, there is an error in the primary decision. It is not my task to decide where the truth lay as between the competing versions given by the parties.[8] The evidence can support the learned Magistrate’s decision. Those findings were open on the evidence, and nothing in the transcript persuades me that a different view of the facts should have been made.
[8]Fox v Percy (2003) 214 CLR 118 at 129 per Gleeson CJ, Gummow and Kirby JJ.
There is no reasonably arguable case that the learned Magistrate was in error. Leave to appeal is refused.
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