Stevens v Van Der Zalm
[2011] QCATA 96
•13 April 2011
| CITATION: | Stevens v Van Der Zalm [2011] QCATA 96 |
| PARTIES: | Ms Patricia Stevens |
| v | |
| Mr Harry Van Der Zalm (Bellara Caravan Park) |
| APPLICATION NUMBER: | APL259-10 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member Andrew McLean Williams, Member |
| DELIVERED ON: | 13 April 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal refused. |
| CATCHWORDS: | Minor Civil Dispute – whether procedural fairness – failure to grant an adjournment – exercise of discretion – no error established Queensland Civil and Administrative Tribunal Act 2009, s 142 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 |
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, a 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.
Member Andrew McLean Williams
This is an Application for Leave to Appeal and Appeal against a decision of the Tribunal made at Caboolture on 12 October 2010. The dispute before the learned Member involved a caravan that is currently located on-site at the Bellara Caravan Park, which is owned and operated by the Respondent, Mr Harry Van der Zalm, along with his wife. The dispute between the Appellant Ms Patricia Stevens and the owners of the Bellara Caravan Park has some history to it, and this dispute, or at least an earlier part of it, has been before QCAT previously, as matter 311 of 2010.
Appeals against decisions in minor civil disputes first require leave from the Appeal Tribunal, see: QCAT Act, s142(3). 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]
[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.
Leave to appeal will ordinarily only be obtained in circumstances wherein there is some question of general importance upon which further argument, and a decision of the appellate tribunal would be to the public advantage; or, where there is a reasonably arguable case of error in the decision at first instance, and a reasonable prospect that the applicant for leave would obtain further substantive relief. For reasons that will be revealed in the following paragraphs this case is not within any of these criteria.
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 Appeal 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.
Here paraphrasing for convenience, the leave for appeal grounds that have been specified by the appellant are:
(i) That the appellant had sought (yet been denied), an adjournment of the hearing of matter, by reason that she had not received the transcript of the hearing in matter 310 of 2010, which was claimed to be relevant because the Respondent appeared to be relying on matters which had been previously dealt with, in matter 310 of 2010.
(ii) The Appellant had sought to tender a counterclaim at the hearing, yet this was also refused.
(iii) There is an error on the face of the record by reason that matters regarding arrears of site fees were dealt with in matter 310 of 2010, which determined that there were no site fees owing as at 26 July 2010. Despite this, in application 453 of 2010, the respondents continued to maintain that site fees were owed by the appellant, going back as far as 21 October 2009.
I will deal with each of these grounds for leave to appeal:
The appellant was denied an adjournment of the hearing of the matter
A review of the file reveals that in August 2010 the Appellant had requested a copy of the transcript of the earlier hearing (No 310 of 2010) and that this transcript had not been received by her by the time of the hearing, which was on 12 October 2010.
However, the fact that the appellant had not received the transcript of the earlier hearing beforehand does not, in and of itself, demonstrate any circumstances of unfairness to her. Although the appellant asserts that she had sought an adjournment of the hearing until the transcript of the earlier hearing became available, here citing her letter to the Registrar at Caboolture dated 12 October 2010 (now annexed as ‘A’ to her submissions on leave to appeal), I note that the appellant did not raise the fact of this letter on the record before the learned Member hearing this matter on 12 October 2010. This is surprising, given that the letter requesting the adjournment bears the same date as the date of the hearing. There is simply no request on the transcript for any adjournment in circumstances where, should one have been required, one might reasonably expect that to have been raised with the learned Member. Having now also read the entirety of the transcript in the previous matter (310 of 2010), in conjunction with the transcript of the matter currently under appeal, I am satisfied that by not having the earlier transcript no actual unfairness or disadvantage was caused to the appellant. Finally I note that the file reveals that the appellant was sent a copy of the order in matter 311 of 2010 by post and that the appellant acknowledged having received and understood the terms of order 2 when asked by the learned Member.[5]
The Appellant had sought to tender a counterclaim at the hearing of matter 453 of 2010, yet this was also refused
[5] Transcript, p. 7 lines 05 – 10.
I note that the learned Member hearing this matter refused to entertain the Appellant’s counterclaim in circumstances in which it had not been properly filed and served on the respondent. There is no demonstrable error by her having refused to consider that document in those circumstances.
There is an error on the face of the record by reason that matters regarding arrears of site fees were dealt with in matter 310 of 2010, which determined that there were no fees owing as at 26 July 2010. Yet, in application 453 of 2010, the respondents contend that site fees were owed by the Appellant going back to 21 October 2009
It is true that, by their initiating application filed on 17 September 2010, the respondents contended that the applicant had not paid site fees at the Bellara Caravan Park since 21 October 2009. The respondents repeated that claim in their oral evidence before the learned Member. However, it is equally clear that the learned Member was not misled by that false contention as, in light of her ruling in matter 310 of 2010, the learned Member only awarded the respondents compensation for outstanding site fees for the period between 27 July 2010 and 19 October 2010. As such there is no error on the face of the record that might now give rise to grounds for leave to appeal being granted.
Conclusions & Order
As the applicant has 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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