Purtill-King v Capri Garden Villas CTS 21998
[2012] QCATA 50
•19 March 2012
| CITATION: | Purtill-King v Capri Garden Villas CTS 21998 [2012] QCATA 50 |
| PARTIES: | Rosemary Purtill-King (Appellant) |
| v | |
| Capri Garden Villas CTS 21998 (Respondent) |
| APPLICATION NUMBER: | APL355-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Mr Richard Oliver, Senior Member Ms Michelle Howard, Member |
| DELIVERED ON: | 19 March 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal is refused. |
| CATCHWORDS: | MINOR CIVIL DISPUTE- no error identified Queensland Civil and Administrative Tribunal Act 2009, ss 3(b), 4(e), 28(3)(b) and (c) Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 |
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 (QCAT Act).
REASONS FOR DECISION
Mr Oliver
In this matter the Appeal Tribunal consisted of Ms Howard, QCAT Member and me. I have had the benefit of reading her reasons in draft. I agree with her reasons, and her conclusions, and the order she proposes.
Ms Howard
This proceeding has a complicated history.
Capri Gardens applied in the Tribunal’s minor civil disputes jurisdiction for orders for the payment by Ms Purtill-King of monies said to be owing for body corporate fees of $1,365, together with its costs, in particular, filing fees of $90 and a service fee of $37.50. Ms Purtill-King sought orders dismissing the application. It was dismissed by an adjudicator. Capri Gardens successfully appealed that decision. Orders were made by the Appeal Tribunal setting aside the decision and the proceeding was referred for hearing by a different adjudicator. Directions were also made for the filing of all material to be relied upon by both parties within specified time frames. Both parties filed material.
The proceeding was subsequently reheard. The learned Adjudicator made orders allowing amendment to the application to include a claim for agreed interest at 2.5 percent per month on outstanding sums and ordering that Ms Purtill-King pay to Capri Gardens the sum of $2,392.41.
In his reasons for decision, the learned Adjudicator indicates that essentially he accepted the evidence given on behalf of Capri Gardens, rather than the evidence given on behalf of Ms Purtill-King relating to accounting issues and accepted that interest was payable.
Ms Purtill-King has now sought leave to appeal that decision. The grounds of appeal are said to be specified in an appendix to the application. However, the appendix is primarily a recitation of the history of the matter. It is indicated that Ms Purtill-King’s representative, who apparently believed that Capri Gardens’ representatives would not attend, disagreed with evidence given on behalf of Capri Gardens as to some points. However, he had with him only a summary of the levies rendered and accounts paid, not all of the accounts and bank statements. The inference seems to be that leave to appeal is sought in order to obtain an opportunity to provide that additional evidence. Finally, issue is taken with evidence given at the hearing that 2.5% interest was levied on outstanding levies.
The Legal Considerations
Leave is required to appeal the decision under section 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act) because the original decision involves a minor civil dispute.
Leave to appeal will ordinarily be granted when a question of general importance upon which further argument and a decision of the Appeal Tribunal is to public advantage;[1] there is a reasonably arguable case that the primary decision-maker made an error[2] and there are reasonable prospects that the applicant would be granted orders in its favour;[3] or to correct a substantial injustice to the applicant caused by error.[4]
[1]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, 578 and 580.
[2] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[3] Cachia v Grech [2009] NSWCA 232, [13].
[4] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
As can be seen from these general principles, an appeal is not an opportunity for a party to present their case again. It is for correcting error made by the Tribunal in deciding the proceeding.
[10] It is not for the Appeal Tribunal to guess at the arguments which a party intended to make. Under the QCAT Act, the tribunal’s charter is to deal with matters in a way that is accessible, fair, just and informal.[5] It is to be responsive to the needs of diverse persons coming before it.[6] It is not bound by procedures applying in courts and may inform itself in any way it considers appropriate.[7] However, as the High Court of Australia recently observed ‘resolution of disputes serves the public as a whole, not merely the parties to the proceedings’.[8]
[5] QCAT Act, s 3(b).
[6] QCAT Act, s 4(e).
[7] QCAT Act, s 28(3)(b) and (c).
[8]Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 217.
[11] Therefore, parties must take care in their dealings in tribunal matters and act in their own interests throughout the conduct of the proceeding. In my view, this includes taking care in the making of an application for leave to appeal or appeal.
Discussion and Decision
The grounds of appeal are somewhat imprecise. However, the application for leave to appeal and appeal does not identify any error made by the learned Adjudicator in deciding the matter or any other basis upon which granting leave to appeal might be appropriate: rather, it suggests that yet another opportunity is sought to present Ms Purtill-King’s case. That is not a proper basis upon which to grant leave to appeal.
Further, both parties were directed to file material relied upon before the hearing and did so. Ms Purtill-King was at liberty to file any material she saw fit in response to the material filed by Capri Gardens. Capri Gardens’ material contained evidence relating to the accounting issues.
It was open to Ms Purtill-King to file the documents which it is now claimed were not available at the hearing, namely copies of the accounts for levies and bank statements in support of her case, in response to Capri Gardens material if she considered they were significant. Indeed, given the Appeal Tribunal’s directions, any material to be relied upon should have been filed in advance of the hearing. It appears that Ms Purtill-King has not taken care in her dealings with the Tribunal.
Leave to appeal should be refused.
0