Wilson v Next Property Pty Ltd
[2017] QCATA 145
•27 November 2017
CITATION: | Wilson & Anor v Next Property Pty Ltd [2017] QCATA 145 |
PARTIES: | Taylor Maree Clare Wilson |
| v | |
| Next Property Pty Ltd (Respondent) | |
APPLICATION NUMBER: | APL268-17 |
MATTER TYPE: | Appeals |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Howard |
DELIVERED ON: | 27 November 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The application for miscellaneous matters filed by Taylor Maree Clare Wilson and Anthony Richard Trudgen on 25 September 2017 seeking leave to file and rely on fresh evidence is refused. |
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – IN GENERAL – where applicants seek to adduce fresh or new evidence in appeal proceedings – where grounds of appeal allege an error of law Albrecht v Ainsworth & Ors [2015] QCA 220 |
APPEARANCES: |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
Ms Wilson and Mr Trudgen have applied for leave to appeal a decision of a QCAT Adjudicator about an application for a minor civil dispute (MCD) that arose out of the ending of their tenancy at premises managed on behalf of the lessor by Next Property Pty Ltd (Next Property). The Adjudicator made orders on 16 June 2017 that the bond of $1,280.00 held by the Residential Tenancies Authority (RTA) be paid as follows:
a) $948.18 to the Lessor; and
b) $330.82 to the Tenants.
In the appeal proceeding, Ms Wilson and Mr Trudgen sought leave to submit and rely upon evidence that was not before the Adjudicator. They say, in essence, that Next Property misled the Tribunal in its verbal evidence, and that the new evidence would show that most of the evidence provided by Next Property lacked credibility, and that as a result Ms Wilson and Mr Trudgen had been prejudiced in the proceedings.
I decided their application to adduce fresh or new evidence. Mr Trudgeon and Ms Wilson have requested reasons for my decision. I now provide my reasons.
In seeking to file and rely upon fresh evidence, the applicants have not provided separate submissions, despite being directed to do so, and so I have only the brief comments provided by them in their application. That said, I have also read their application for leave to appeal and appeal and the submissions filed in support of that application.
The ground for their application for leave to appeal and appeal is bias of the Adjudicator. Bias is said to arise because the Adjudicator made an observation, when mentioning the matter at the appointed time for the hearing to the effect that, having looked at the file, it appeared to him that the matter was not complex and that it would be surprising if the parties were not able to reach agreement. It appears from the transcript that the learned Adjudicator then proceeded to hear other proceedings, before determining the subject application a little later in the day.
Mr Wilson and Ms Trudgen’s argument seems to be that because the Adjudicator expressed, what they refer to as, his ‘opinion’ (in the terms referred to in paragraph [5] above) before the hearing, he created a perception of bias against them. Further, they say that, as a result, they ‘lost faith in the process and did not provide all supporting information as its value was diminished by this bias’.[1]
[1]Submissions of applicants filed 25 September 2017.
The reasonably drawn conclusion from their submission is that the fresh evidence now sought to be relied upon was available at the hearing and could have been presented to the Adjudicator at the hearing, but that Ms Wilson and Mr Trudgen elected or failed not to provide it to him.
When will fresh evidence be allowed?
Generally, fresh evidence may be permitted in appeal proceedings where an appeal is an appeal by way of rehearing in the discretion of the appeal body. To obtain leave in relation to evidence that was available at the time of the original hearing, an applicant must show that:[2]
a) The evidence could not have been obtained with reasonable diligence at the original hearing;
b) That if it was allowed to be relied upon it would probably have an important impact on the result of the case; and
c) That the evidence is credible.
[2]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Q d R 404, 408.
An application for leave to appeal and, if leave is granted, a subsequent appeal where appeal is by way of rehearing, will generally proceed on the basis of the evidence before the original tribunal, unless the test is met.
In QCAT, appeals decided on a question of fact or mixed law and fact proceed by way of rehearing.[3] Appeals decided on a question of law only proceed pursuant to s 146 of the QCAT Act: they are appeals in the strict sense.[4]
If leave to appeal is ultimately granted, is this an appeal proceeding that may proceed by way of rehearing?
[3]QCAT Act s 147; Ericson v QBCC [2014] QCA 297.
[4]Ericson v QBCC [2014] QCA 297; Albrecht v Ainsworth & Ors [2015] QCA 220.
At this stage, I am determining only an application for fresh evidence, not the application for leave to appeal and/or appeal. However, I observe some underlying principles relating to the appeal process.
The appeal process is generally for correcting error made by the original decision-maker. It is not generally an opportunity for a party to reargue the case in order to achieve a different outcome, merely because the party does not like or agree with the outcome.[5] Leave to appeal will generally only be granted where there is a reasonably arguable case of error in the primary decision; there are reasonable prospects the appellant will obtain substantive relief; and it is necessary to correct a substantial injustice; [6] or there is a question of general importance to be considered.
[5]Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39.
[6]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Q d R 41; Cachia v Grech [2009] NSWCA 232.
The ground of appeal alleged here concerns an allegation of bias of the learned Adjudicator. Bias may be actual or apprehended. The test of apprehended bias requires consideration about whether a fair-minded bystander would reasonably apprehend that the decision-maker did not bring an impartial mind to the determination of the issues to be decided.[7]
[7]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
If bias is established to the satisfaction of the appeal tribunal in determining the application for leave to appeal and appeal, it would constitute a breach of natural justice. A breach of natural justice is an error of law. An appeal decided on a question of law, must proceed under s 146 of the QCAT Act. That is, it would be an appeal in the strict sense and contain no element of rehearing: Ericson v QBCC;[8] Albrecht v Ainsworth.[9]
[8][2014] QCA 297.
[9][2015] QCA 220, [94] (although subsequently the Court of Appeal’s decision was successfully appealed in the High Court of Australia, the relevant findings of law about the nature of appeals was not challenged).
Should leave be granted to the applicants to rely upon fresh evidence?
As discussed, if the application for leave to appeal succeeds, the appeal is an appeal in the strict sense and does not involve a rehearing. In the circumstances, if leave to appeal is granted and the appeal is ultimately successful, it will not be for the appeal tribunal to rehear the MCD. Section 146 does not provide for it to do so.
In the circumstances alleged, that is, that there is further relevant evidence that was not presented because of the alleged error of law, if the application for leave to appeal is granted and the appeal allowed, the appropriate course would be for the appeal tribunal to return the MCD to the tribunal for reconsideration. Further evidence may then be allowed in any reconsideration.
Orders
I make orders refusing the application for leave to file and rely upon fresh evidence.
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