Willliams v McConochie
[2013] QCATA 314
•11 November 2013
| CITATION: | Willliams & Anor v McConochie & Anor [2013] QCATA 314 |
| PARTIES: | Mr Steven Williams Mrs Katrina Williams (Applicants) |
| v | |
| Mr Terrance McConochie Mrs Dawn McConochie (Respondents) |
| APPLICATION NUMBER: | APL246 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe OAM |
| DELIVERED ON: | 11 November 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549 Chambers v Jobling (1986) 7 NSWLR 1 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):
The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Mr and Mrs McConochie rented a rural property from Mr and Mrs Williams. When they left, they owed about six weeks’ rent, so Mr and Mrs Williams filed a claim in the tribunal. At the hearing, Mr and Mrs McConochie claimed for damage to their car, which occurred when the ceiling of the shed fell onto it. Two Justices of the Peace, sitting in the minor civil disputes jurisdiction of the tribunal, found that Mr and Mrs McConochie did owe rent but offset their claim for damage to the car.
Mr and Mrs Williams wants to appeal that learned JPs’ decision. They say that they had no notice of the claim for damage to the car. They say that Mr and Mrs McConochie should have paid for the cleaning costs. They say that the damage to the car is based up on a single quote which has a number of errors.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. 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 caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the appeals 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 2.
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[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.
It is true that Mr and Mrs McConochie did not file a claim for the damage to the car. Under the tribunal rules, they are not required to do so. It is not true that Mr and Mrs Williams’ agent had no notice of the claim. Mr and Mrs McConochie referred to the claim in the dispute resolution conference conducted by the Residential Tenancies Authority on 15 March 2013. The application filed on behalf of Mr and Mrs Williams included a copy of the repair quote. Mr and Mrs Williams’ agent, Ms Knox told the learned JPs[5]:
I know there has been an issue which I am sure they will raise about some damage to their vehicle and I’ve been filled in on those situations…”
[5] Transcript page 1-3, lines 37-39.
Ms Knox had photos of the damage to the car[6]. She thought she had included them in the claim[7].
[6] Transcript page 1-15, lines 10-11.
[7] Transcript page 1-15, line 12.
Ms Knox was not taken by surprise. She did not ask for an adjournment so that she could file copies of the photos. It is now too late to submit the photos or to challenge evidence that was not challenged at the hearing.
Mr and Mrs Williams’ other grounds for leave to appeal are questions of fact. The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[8] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[9] However, the appeal tribunal must exercise its own discretion when considering whether the original decision maker was in error. As the High Court said in Fox v Percy:
In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.[10]
[8]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[9] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[10] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
The evidence can support the learned JPs’ findings of fact. They do not need more than one quote if the quote is not challenged. They found, as they were entitled, that a month had passed since Mr and Mrs McConochie left the premises and that the need for cleaning was probably as a consequence of time passing. There is nothing in the transcript to persuade me that the learned JPs should have taken a different view of the facts.
There is no question of general importance that should be determined by the appeals tribunal. There is no reasonably arguable case that the tribunal was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.