Ramirez v Harcourts Clayfield
[2011] QCATA 165
•4 July 2011
| CITATION: | Ramirez and Anor v Harcourts Clayfield [2011] QCATA 165 |
| PARTIES: | Ms Viviana Ramirez Dr Robert William Austin |
| v | |
| Harcourts Clayfield |
| APPLICATION NUMBER: | APL372-10 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member Andrew McLean Williams, Member |
| DELIVERED ON: | 4 July 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal is refused. |
| CATCHWORDS: | Minor Civil Dispute – where Tribunal made findings of fact – where findings open on the evidence – whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act 2009, s 142 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Senior Member Richard Oliver:
In this matter the Appeal Tribunal consisted of Mr McLean Williams, QCAT Member and me. I have had the benefit of reading his reasons in draft. I agree with his reasons, and his conclusions, and the order he proposes.
Andrew McLean Williams:
This is an application for leave to appeal against the decision of an Member of this Tribunal sitting as an Adjudicator, made on 21 September 2010 in a minor civil dispute between the tenants of a house located at Clayfield (the present applicants), and Harcourts Real Estate at Clayfield (the respondent), who were at all material times acting as agents for the owner of the Clayfield property.
On 21 September 2010 two inter-related matters, being Minor Civil Disputes Nos. 1847/10 and 549/10 were heard together. Each of these were commenced before QCAT by the applicants.
In written reasons delivered on 21 September 2010, the learned Member dismissed both applications. Upon reading the written reasons for decision, as well as the transcript of the proceedings on 21 September 2010 it becomes very clear that the learned Member simply preferred the evidence adduced on behalf of the respondent, and found accordingly.
This application for leave to appeal was commenced by the filing of an Application for Leave to Appeal or Appeal (Form 39), on 23 December 2010. Various grounds of appeal were specified therein by the applicant. These were:
(i)The Referee (sic) failed to give due consideration to a set of documents filed by the applicants, to wit:
(a)“Costs Claimed vs A & C Thomas re 3 Elliott St Clayfield, Qld 4011”;
(b)“List of entries by agent or tradespeople, 15/8/09 – 14/2/10;
(c)Agents multiple breaches of s 183 of the Residential Tenancies and Rooming Accommodation Act 2008 (see also Form 11s on File).
(ii)The Referee (sic) failed to require key material evidence from the agent, yet accepted her denials of the applicants’ sworn evidence and counter-claims.
(iii)The Referee (sic) failed to require the agent to provide copies of bond lodgement notices and/or leases for the property. This would show that the agent committed perjury “re number of previous tenancies”.
(iv)The Referee (sic) ignored the owner’s failed promise to replace the locks and (relied upon) a fraudulent locksmith’s report.
(v)The Referee’s reasons for decision fail to cite any section of the Act.
(vi)The patent lack of objectivity by the Referee (sic).
The Appellants have elaborated upon their appeal grounds in their lengthy written submissions dated 7 February 2011, which were subsequently revised and then re-lodged in the QCAT Registry, on 11 February 2011.
Pursuant to s 142(3) of the QCAT Act, this appeal may only be commenced with the leave of this appeal Tribunal. The question whether (or not) leave should be granted is usually one to be addressed in accordance with established principles: Is there a reasonably arguable case of error in the primary decision?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary in order to correct a substantial injustice to the applicant caused by some error?[3] Is there some question of general importance upon which further argument and a decision of the appellate court or Tribunal would be to general public advantage?[4] As was recognised by the High Court in Fox v Percy ([2003] HCA 22 at [32] per Gleeson CJ, Gummow and Kirby J), the duty of this appellate Tribunal is solely to determine whether there is some error in the primary decision. It is not our task to decide where the truth lay as between the competing versions given by the parties.
[1] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2] Cachia v Grech [2009] NSWCA 232 at [13].
[3] QUYD Pty Ltd v Marvass Pty Ltd (supra).
[4]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
In their Form 39 the applicants have not specified any discrete grounds as to why they should now be granted leave to appeal. I am content however to treat their stated grounds of appeal as if these were also grounds for their seeking leave to appeal; and to consider whether any of these enliven the principles that may confer a grant of leave to appeal.
Dealing with the applicants’ grounds the following observations can be made. Firstly, the applicants contend that the learned Member failed to give due consideration to a number of documents annexed to their original application before QCAT including a damages schedule (that document entitled “Costs Claimed vs A & C Thomas re 3 Elliott St Clayfield, Qld 4011”); a “List of entries by agent or tradespeople, 15/8/09 – 14/2/10”; and did not give any consideration to the Agents (alleged) multiple breaches of s 183 of the Residential Tenancies and Rooming Accommodation Act 2008. I do not accept that contention. Although the learned Member did not specifically allude to these three documents in his reasons for decision it is still abundantly clear from reading his reasons for decision and the transcript of proceedings as a whole that the learned Member did allude to the fact that all of the materials filed by the applicants had been read and considered, yet then stated that this evidence had not been preferred to that adduced by way of reply, by the respondent. The learned Member was always entitled to proceed on this basis and that he did not make specific reference in his reasons to these three documents does not evince any appealable error. Having considered each of those documents as part of this appeal it is my view that these are tendentious. The learned Member was correct in his assessment of their worth as evidence.
Next, the applicant contends that the learned Member failed to require key material evidence from the agent, yet accepted her denials of the applicants’ sworn evidence and counter-claims. Again, the applicants’ allegation fails to comprehend that the learned Member was at all times entitled to choose between the evidence. There is no demonstrable error in his having done so.
The applicants also assert that the learned Member fell into error by his having failed to require the agent to provide copies of bond lodgement notices and/or leases for the property, on the ostensible basis that this would go towards showing that the agent committed perjury, for her having told the Tribunal a deliberate untruth regarding the number of previous tenancies over the premises. Nothing turns on this. It is clear from the materials on the file that the agent told the Member that she thought that the applicants’ tenancy was only the second over the premises, since construction. Whether this was true or whether her belief in that regard was mistaken is simply irrelevant to these proceedings. The instance does not make out a case of perjury, and it is wholly misconceived to submit that the learned Member was required to demand the respondent produce copies of these documents. Minor civil dispute hearings are not conducted with inquisitorial powers akin to those that inure in a commission of inquiry. The learned Member was required to do no more than decide the dispute on the basis of the evidence presented by the parties.
The applicants also now complain that the learned Member ignored the owner’s failed promise to replace the locks and instead relied upon a “fraudulent” locksmith’s report. It is clear from the evidence that the learned Member proceeded on the basis that a locksmith’s report had been obtained from Banyo Locksmiths to the effect that the locks on the premises were in good working order (and that the tenants had indicated that they were satisfied with that advice), such that there was not the need to replace the locks, as had at one stage been offered by the owner. Again, the learned Member was always entitled to proceed on that basis. The fact that the account given in the written report by the locksmith (as accepted and preferred by the learned Member) does not accord with the applicants’ version of events does not make the locksmith’s report fraudulent.
The applicants also complain that the learned Member’s decision fails to cite any sections of the Residential Tenancies and Rooming Accommodation Act 2008. To require careful statutory exegesis in every instance would be a counsel of perfection, and is inconsistent with the realities of the workload in this busy jurisdiction, in which decisions are usually given ex tempore and wherein self-representation by laypeople is now the norm. The Tribunal must, by reason of its enabling legislation, adopt procedures that are expedient and economical. It is therefore readily understandable why the learned Member did not in this instance make any specific reference to any statutory provisions. Although in hindsight it would have been preferable had some reference been made in those reasons to various sections of the Act, this is not an error of sufficient magnitude in a case such as this one that it will now afford a basis for a grant of leave for an appeal. In particular, it is clear from a reading of the decision as a whole, and the evidence that was the basis for it, that the learned Member was not satisfied that a breach of s 183 of the Act had been made out.
Finally, the applicants contend that the learned Member suffered from a “patent lack of objectivity”. This is an allegation of actual bias. There is simply no reasonable evidence of bias on the face of the record. The allegation is dismissed as being without proper foundation.
Consistent with the observations of the High Court in Fox v Percy,[5] the learned adjudicator was always entitled to find that he was unpersuaded by the applicant’s evidence and that he preferred the evidence of the respondent. There is no demonstrable error – whether of fact or law – in his so finding.
[5] [2003] HCA 22 at [32] per Gleeson CJ, Gummow and Kirby JJ.
Conclusions & Order
As the applicants have been unable to demonstrate any error on the part of the learned Member, and nor is any error apparent on the face of the record, leave to appeal must be refused.
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