Slater v Wilkes
[2012] QCATA 12
•20 January 2012
| CITATION: | Slater v Wilkes [2012] QCATA 12 |
| PARTIES: | Tracey Dawn Slater (Applicant/Appellant) |
| v | |
| Edward Wilkes (Respondent) |
| APPLICATION NUMBER: | APL180-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr J R Forbes, Member |
| DELIVERED ON: | 20 January 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal refused. |
| CATCHWORDS: | Decision awarding damages for repairs to rental property – no error shown – leave to appeal refused Queensland Civil and Administrative Tribunal Act 2009, ss 3, 142(3)(a)(i), 143(4) |
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
For several years the Applicant, Tracey Slater, was a tenant of the Respondent, Edward Wilkes, in a house at Gatton. She left the premises towards the end of July 2010. On 8 November 2010 a judgment in favour of the Respondent, for arrears of rent, was entered against her. We are not now concerned with that decision.
The present application relates to a decision of this Tribunal, on 18 April 2011, ordering the Appellant to pay the amount of $4,182.52 to the Respondent for failure to keep and vacate the premises in proper repair. An audio-recording of that decision was sent to the Appellant on 4 May 2011; it follows that the present application, filed on 26 May 2011, was lodged within the time limited for that procedure.[1]
[1]Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”), s 143(4).
The grounds of the application are these:
(a)“The amount to pay” (presumably this means that the amount awarded is excessive);
(b)That the Tribunal did not give proper weight to [the Applicant’s] evidence;
(c)That the Tribunal gave undue weight to the evidence provided by/of [the Respondent] which could be fabricated because it did not support proper invoices;
(d)That the responsibility for damage was placed solely on [the Applicant] despite the fact that the house was broken into and I had lodged a police report; and
(e)That the Tribunal did not give any weight to counter claims of kennels etc fixing by bettering the premises.
The Respondent has filed no material in response to the present application.
In a case of this kind there is no appeal as of right; leave is required.[2] A main object of the QCAT Act is to resolve disputes quickly and economically.[3] Subject to justice and reason, finality of the primary decision is consonant with those aims. The preliminary hurdle of leave to appeal is by no means peculiar to the QCAT Act.[4]
[2]QCAT Act, s 142(3)(a)(i).
[3]QCAT Act, s 3(b).
[4]See e.g Federal Court of Australia Act 1976 (Cth), s 24(1A); R v Hickey [2011] QCA 385 (appeal against sentence); Administrative Appeals Tribunal Act 1997 (NSW) s 113(2)(b); Victorian Civil and Administrative Appeals Tribunal Act 1998 (Vic) s 148(9).
Courts and tribunals have developed principles for deciding whether leave to appeal should be granted. It is not nearly enough for a party to express disappointment at the original decision, or a feeling that justice has not been done.[5] The applicant for leave must show that the decision in question is affected, arguably at least, by an appellable error, resulting in a substantial injustice.[6] It is not such an error to prefer one version of the facts to another, or to attribute more weight to the evidence of witness “A” than to the testimony of witness “B”. Findings of fact will not usually be disturbed on appeal if the findings of fact by the original decision maker have rational, albeit debateable support in the evidence.[7] Where reasonable minds may differ, a decision cannot properly be called erroneous, simply because one conclusion has been preferred to another possible conclusion.[8] Leave is not to be given where a party simply desires to re-argue the case, on the existing or additional evidence. One clear purpose of a “leave” requirement is to preclude any attempt to conduct a retrial on the merits.[9]
[5]Robinson v Corr [2011] QCATA 302 at [7].
[6]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; Drew v. Bundaberg Regional Council [2011] QCA 359 at [19].
[7]Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at 125-126.
[8]Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611; [2010] HCA 16 at [131].
[9]Contrast QCAT Act, s 20 (review jurisdiction).
An occasional ground for granting leave to appeal is that the case in question raises an issue of general importance, calling for further argument and the decision of a higher authority,[10] but that consideration does not arise here.
[10]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.
The grounds of the application are set out as sub-paragraphs “(a)” to “(e)”, above.
The first ground, tersely and obscurely expressed as it is, offers no particulars of the claim that the damages awarded are excessive. The learned Member recorded details of the Respondent’s claim for cleaning and repairs.[11] He exempted the Applicant from liability for three items of damage to walls. He disallowed a claim for cleaning, which was not supported by a receipt. He noted that some of the receipts tendered were deficient in detail, but accepted the Respondent’s oral evidence supplementing them, and concluded, as he was entitled to do, that the Respondent reasonably expended $4,182.52 to restore the premises to their condition at the beginning of the Applicant’s tenancy. The Applicant, for her part, offered no evidence tending to diminish the amount claimed. Her evidence and argument dealt mainly with cleaning, for which, in the event, no amount was awarded.
[11]Transcript page 26.
The second and third grounds[12] assert, in general terms, that the Member gave too little weight to the Applicant’s evidence, and too much weight to the Respondent’s. These claims are merely an impermissible attempt to have the case re-tried. Even if that were allowed, the paucity of the Applicant’s evidence on the items awarded is such that the exercise would be pointless.
[12]Namely “(b)” and “(c)” above.
The fourth ground, namely that responsibility for damage to the property was placed solely on the Applicant, “despite the fact that the house was broken into, and I had lodged a police report”, is not supported by the evidence, or by the reasons for decision. In fact the Respondent conceded, and the learned member found, that some damage to the walls occurred before the Applicant arrived.[13] On the other hand, the Applicant clearly admitted responsibility for three holes,[14] and “I don’t know who done the other holes”.[15] There is no substance in this ground.
[13] Transcript pages 2 and 27.
[14] Transcript page 10.
[15] Transcript page 11.
The fifth and final ground reads: “[T]he Tribunal did not give any weight to counter claims of kennels etc fixing by bettering the premises.” The meaning of this ground is not entirely clear, but certainly there was no counterclaim for improvements to the property. There were brief references to greyhound kennels and “run outs” built by or for the Applicant,[16] but there was no evidence that they were of any benefit to the Respondent, and the Member reasonably disregarded this matter as unrelated to the issue of compensatory damages.
[16] Transcript pages 18 and 25.
I am unable to discern any error in the subject decision that would warrant leave to appeal, let alone a decision upholding an appeal. The learned Member’s findings were open upon the evidence; indeed, there was little relevant material to the contrary. Leave to appeal should be refused.
ORDER
Leave to appeal refused.
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