Pedersen v Bradshaw

[2021] QCATA 102

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

1. 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].

2. 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.

3. 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].