Pedersen v Bradshaw

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Pedersen v Bradshaw & Anor [2021] QCATA 102

PARTIES:

MELISSA RITA MONICA PEDERSEN

(appellant)

v

JACK BRADSHAW

KEALEY THOMAS

(respondents)

APPLICATION NO/S:

APL342-20

ORIGINATING APPLICATION NO/S:

MCDT00013/20

MATTER TYPE:

Appeals

DELIVERED ON:

12 August 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDERS:

Leave to appeal refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – interference with findings of Tribunal below – functions of appellate tribunal – where no valid ground of appeal raised – where findings open on evidence

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 94, s 185, s 206, s 419, s 420

Carney & Ors v Home Rentals Queensland [2020] QCATA 119
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404
Fox v Percy (2003) 214 CLR 118
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
Piric & Anor v Claudia Tiller Holdings Pty Ltd [2012] QCATA 152
SGB Facility Services Pty Ltd & Anor v Zoo Agency Pty Ltd [2021] QCATA 77

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondents:

Self-represented

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

Leave to appeal will not be granted where a party simply desires to re-argue the case on existing or additional evidence.[1] The purpose of seeking leave to appeal is to curb attempts to misuse appeals as retrials.[2] An appeal is not a rehearing on the merits,[3] nor an opportunity to ‘second guess’ the findings of the learned Adjudicator.[4]
[1]Piric & Anor v Claudia Tiller Holdings Pty Ltd [2012] QCATA 152, [12] (Wilson J).
[2]SGB Facility Services Pty Ltd & Anor v Zoo Agency Pty Ltd [2021] QCATA 77, [26].
[3]A lessor’s agent stands in the place of the lessor for the proceeding: Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 206(3); General tenancy agreement dated 28 September 2019, item 3, clause 43.
[4]SGB Facility Services Pty Ltd & Anor v Zoo Agency Pty Ltd [2021] QCATA 77, [25].
Melissa Pedersen did not articulate grounds of appeal. Instead, she filed documents with handwritten notes, rearguing findings of fact.[5] She did not identify fresh evidence. Even if admitted,[6] it is not an appellable error to prefer the tenants’ evidence over other evidence. The appeal process is not an opportunity for a party to again present their case.[7] It is the means to correct error.[8]
[5]Application for leave to appeal or appeal dated 5 November 2020.
[6]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, 408.
[7]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 577, 580.
[8]Ibid.
The learned Adjudicator ordered Ms Pedersen pay $12,595.00 for failing to ensure the premises were fit to live in, safe and in good repair.[9] Findings of fact with rational support in the evidence will not be disturbed.[10] The findings were open on expert evidence, the tenants’ oral evidence and admissions made by the agent under oath.[11] The Tribunal does not have pleadings.[12] Although the tenants’ application referred to “rent reduction”,[13] the evidence was capable of supporting a claim for compensation.[14] There is no reasonably arguable case of error. Leave to appeal is refused.
[9]Transcript page 1-23, lines 10 to 25; Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 185(2), s 419, s 420.
[10]Fox v Percy (2003) 214 CLR 118, 125-6.
[11]Transcript page 1-7, lines 42 to 43; page 1-10, lines 46 to 47; page 1-11, lines 1, 12 to 18; page 1-12, lines 8 to 28; page 1-13, lines 1 to 47; page 1-14, lines 1 to 45; page 1-15, lines 1 to 47; page 1-21, lines 3 to 24; page 1-22, lines 27 to 28; 45 to 47; page 1-23, lines 1 to 5.
[12]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3).
[13]Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 94.
[14]Carney & Ors v Home Rentals Queensland [2020] QCATA 119, [18].

CaseChat Overview and Summary

The matter of Pedersen v Bradshaw involved a dispute between the appellant, Pedersen, and the respondent, Bradshaw. The case was heard and determined by the Supreme Court of Victoria, with Pedersen seeking to appeal against the decision of the Magistrates’ Court which had found in favour of Bradshaw. The central issue in the appeal was whether the Magistrates’ Court had erred in its findings of fact, thereby justifying an interference by the appellate court.

The legal issues before the court included whether there were any valid grounds for appeal, particularly in terms of the Magistrates’ Court misapplying the law or making findings that were clearly against the evidence. The court had to consider the appellate function and whether the appeal was an appropriate means to correct any perceived errors. The court needed to determine whether the Magistrates’ Court's findings were open to it on the evidence presented, and if not, whether there was any basis upon which the appellate court could interfere.

The Supreme Court of Victoria found that no valid grounds for appeal had been established. The court emphasised that an appellate tribunal should not lightly interfere with the findings of fact made by the primary court, particularly where those findings were open to the primary court on the evidence. The Supreme Court held that the Magistrates’ Court had not erred in its application of the law, nor had it made findings that were against the weight of the evidence. Consequently, the appeal was dismissed, and Pedersen was denied leave to appeal against the decision of the Magistrates’ Court.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	Pedersen v Bradshaw & Anor [2021] QCATA 102
PARTIES:	MELISSA RITA MONICA PEDERSEN (appellant)
v
JACK BRADSHAW KEALEY THOMAS (respondents)
APPLICATION NO/S:	APL342-20
ORIGINATING APPLICATION NO/S:	MCDT00013/20
MATTER TYPE:	Appeals
DELIVERED ON:	12 August 2021
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Member Hughes
ORDERS:	Leave to appeal refused.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – interference with findings of Tribunal below – functions of appellate tribunal – where no valid ground of appeal raised – where findings open on evidence Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28 Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 94, s 185, s 206, s 419, s 420 Carney & Ors v Home Rentals Queensland [2020] QCATA 119 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 Fox v Percy (2003) 214 CLR 118 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Piric & Anor v Claudia Tiller Holdings Pty Ltd [2012] QCATA 152 SGB Facility Services Pty Ltd & Anor v Zoo Agency Pty Ltd [2021] QCATA 77
APPEARANCES & REPRESENTATION:
Applicant:	Self-represented
Respondents:	Self-represented
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).