Watson v Gray
[2011] QCATA 44
•7 March 2011
| CITATION: | Watson v Gray [2011] QCATA 44 |
| PARTIES: | Owen James Watson (Applicant/Appellant) |
| v | |
| Diana Gray (Respondent) |
| APPLICATION NUMBER: | APL192-10 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 7 March 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where applicant failed to collect possessions from the respondent’s premises pursuant to arrangements made by the police – where applicant sought a further opportunity to retrieve his possessions – whether the respondent was given a fair opportunity to present case at hearing Queensland Civil and Administrative Tribunal Act 2009, s 142(3) Cachia v Grech [2009] NSWCA 232, cited Fox v Percy (2003) 197 ALR 201, cited Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, applied |
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
This is an appeal from a Minor Civil Dispute which concerned the recovery of Mr Watson’s possessions from Ms Gray’s property. Mr Watson had been given the opportunity by the police to collect his possessions, but he had failed to do so.
Mr Watson brought an application in QCAT’s Minor Civil Disputes jurisdiction on 20 April 2010 seeking an order that he be allowed access to Ms Gray’s property to collect his belongings.
The matter was heard by Magistrate Baldwin, acting in her capacity as a QCAT Member on 10 August 2010. The learned Magistrate ordered that Mr Watson would have one final opportunity to collect his possessions from Ms Gray’s property by Tuesday 17 August at 5pm.
Mr Watson now seeks leave to appeal that decision. Leave is necessary: QCAT Act, s 142 (3)(a)(i).
The question whether or not leave to appeal should be granted is usually addressed according to 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 to correct a substantial injustice to the applicant caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the 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 granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?
In his application, Mr Watson lists two grounds for appeal: first, he alleges that he was denied the opportunity to properly present his case; and secondly he contends that the respondent acted illegally, as he had argued at first instance before the learned Magistrate.
As to the first ground for appeal, the transcript of the proceedings reveals that the hearing on 10 August was brief but this is not, in and of itself, a ground for appeal: pursuant to s 28(3)(d) of the QCAT Act, the Tribunal may – indeed, must – act with as much speed as a proper consideration of the matters before it permit.
The transcript makes it clear that during the hearing Mr Watson had the opportunity to present his evidence, to respond to the evidence of Sergeant Kennedy, and to answer the learned Magistrate’s questions. The transcript also makes it apparent that the learned Magistrate did undertake a proper consideration of the matter, despite the expeditious nature of the proceedings, and that Mr Watson was given ample, and fair, opportunity to present his case.
[10] Accordingly, the first ground for appeal is without merit.
[11] Whether or not Ms Gray acted illegally is a question of fact. The learned Magistrate considered all of the available evidence, including the statement of Sergeant Kennedy and the oral evidence of both parties. Indeed, the learned Magistrate noted that Mr Watson’s concerns about the actions of Ms Gray’s son related to a criminal rather than a civil matter and must, therefore, be brought up with the police.
[12] In the face of this evidence, there is no ground for disturbing the learned Magistrate’s findings of fact at first instance. Accordingly, Mr Watson’s second ground for appeal is also without merit.
[13] Clearly, the learned Magistrate made a considered evaluation of the evidence available at first instance and reached a decision that has not been shown not to be fair and just, according to the substantial merits of the case.
[14] There is nothing arising from the conduct of the matter, or the decision, suggesting any material error of fact or law. The applicant is unable to point to any reasonably arguable case of error in the decision of the learned Magistrate, or any question of general importance upon which a decision of the Appeal Tribunal is necessary. For these reasons, the application for leave to appeal is refused.
0