Dansey v Berwick-Jones [2019] QCATA 26

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Dansey v Berwick-Jones [2019] QCATA 26 PARTIES: KERRIE ANN DANSEY (applicant/appellant) v EMILY GRACE BERWICK-JONES (respondent) APPLICATION NO/S: APL365-17 MATTER TYPE: Appeals DELIVERED ON: 11 March 2019 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Daubney, President ORDERS: The application for leave to appeal is dismissed. CATCHWORDS: APPEAL – LEAVE TO APPEAL – where application for leave to appeal does not identify either errors of fact or errors of law by Acting Magistrate – where application for leave to appeal contains only factual assertions related to a claim not before the Acting Magistrate – whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act 2009, s 142 Residential Tenancies and Rooming Accommodation Act 2008 Gobus v Cairns Hinterland Hospital and Health Service [2018] QCATA 121 REPRESENTATION: Applicant: Self-represented Respondent: Self-represented APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). -- 1 of 4 -- 2 REASONS FOR DECISION [1] From July 2015, the respondent was the tenant of premises in Proserpine owned by the applicant. In March 2017, the respondent noticed a leak in the premises, and made several attempts to contact the applicant’s agent in relation to the leak. An inspection of the property was arranged for 23 March 2017, but the agent failed to attend. [2] Then, in April 2017 Proserpine was hit by Cyclone Debbie. The respondent was advised by the authorities to vacate the premises. When the respondent was eventually permitted to return to the property, there was severe damage as a result of the cyclone. In particular, the respondent became concerned about mould which was growing on the walls and the fact that locks on the door were broken or mislaid. The respondent issued a notice to remedy breach form seeking for rectification of the mould and for the locks to be replaced. [3] Ultimately, the respondent applied for rent reduction under the provisions of the Residential Tenancies and Rooming Accommodation Act 2008 (“RTRA Act”). A dispute resolution request under the RTRA Act had been filed on 8 August 2017, but that process was unsuccessful. The application filed on 5 October 2017 was then heard before an Acting Magistrate in Proserpine on 20 October 2017. The Acting Magistrate ordered that the present applicant pay the present respondent the sum of $3,116.40, being $3,000 for claim and $116.40 for filing fees, and also directed that the bond monies of $1,320 held by the RTA (Rental Bond Number 55073492) be paid to the present respondent. It is also notable that the Acting Magistrate also gave leave for the present applicant to be represented at the hearing by her agent, Ms Westley, from the firm of real estate agents who were responsible for management of the property. [4] The present applicant then filed in the Tribunal an application for leave to appeal or appeal against the Acting Magistrate’s decision. As the decision at first instance was in a proceeding for a minor civil dispute,1 an appeal against a minor civil dispute may only be made if leave to appeal is obtained.2 [5] In the application for leave to appeal, the present applicant, under the heading “grounds of appeal”, did not actually identify either the errors of fact or errors of law on which the applicant would seek to rely as founding the proposed appeal against the Acting Magistrate’s decision. Rather, the applicant simply articulated a series of factual assertions, without in any way relating them to the matters which were actually at issue before the learned Acting Magistrate. [6] Moreover, under the heading “orders sought”, the applicant stated: I believe I have been poorly represented by my then Real Estate Agent First National Whitsunday Coast. The mess in which my house was left in is disgraceful and has lost me the following monies to get my property into a clean and fit state again: (Please refer to appendix H). Pressure wash pavers/driveway/carpark - $198.00 1 As that term is defined in the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”). 2 Section 142(3), QCAT Act. -- 2 of 4 -- 3 Removal of tenants rubbish and top costs - $132.00 Bond clean (after vacating) - $770.00 Curtain cleaning/sanitising - $77.00 Total = $1177.00 I am seeking compensation for the above money as I believe the tenant is at fault. I understand that the tenants living ability was disrupted due to the natural disaster of Tropical Cyclone Debbie however I did everything in my capable abilities at the time (considering there was no power or communications etc.) to make the property as liveable and accommodating as I could. The insurance assessors were at the location within days of me starting a claim, urgent and necessary work was conducted when it was convenient with the tenant. These arrangements were made directly by me or the builder with the tenant. [7] It is relevant to note at this point that no part of the hearing before the Acting Magistrate was concerned with any monetary claim by the present applicant against the respondent. The only claim before the Acting Magistrate was the respondent’s claim under the RTRA Act. Nor does the transcript of the proceeding before the Acting Magistrate reveal any such claim for compensation being flagged or pursued on behalf of the present applicant. [8] This Appeal Tribunal gave directions for the progress of the present application. In particular, it was directed that the applicant file and serve: (a) all submissions identifying and material claimed to demonstrate the precise error/s of fact and/or law allegedly made by the original decision maker; and (b) any further submissions in support of the application for leave to appeal or appeal that she wish to rely upon, or advise that no further material will be filed. [9] Those submissions were originally to be filed by 8 January 2018. The time for those submissions was then extended to 23 February 2018. On 12 February 2018, the applicant contacted the Tribunal registry and advised that she had no further submissions to lodge. [10] Accordingly, the sum total of the submissions relied on by the applicant in support of her application for leave to appeal or appeal is the appendix to her original application. [11] As already noted, the applicant requires leave to appeal. It is well established that leave will usually be granted only where an appeal is necessary to correct a substantial injustice to the applicant and there is a reasonable argument that there is an error on the part of the Tribunal at first instance which needs to be corrected.3 [12] In the present case, the applicant has not identified any errors of fact or law by the Acting Magistrate in reaching the decision at first instance. Rather, it appears that the applicant wishes to resile from her agent’s representation at the hearing before 3 See Gobus v Cairns Hinterland Hospital and Health Service [2018] QCATA 121, and the authorities cited at [24]. -- 3 of 4 -- 4 the Acting Magistrate and now not only “rerun” the case below but also mount a new and previously unadvertised claim against the respondent. [13] The decision by the Acting Magistrate was not in any way provisional. It was a final decision in a minor civil dispute. There is no automatic right of appeal against that decision. The legislation requires that leave to appeal be obtained, and the law requires that an applicant seeking leave should identify the errors of fact and law which the applicant would say has fatally infected the decision below. An appeal is not an opportunity for the present applicant simply to have another go at running the case the way that she now wants to run it, rather than the way it was run by her duly appointed agent. [14] The applicant has not articulated or demonstrated any proper basis for mounting an appeal. There is therefore no warrant for granting leave to appeal or otherwise interfering with the decision by the Acting Magistrate. Nor is there any proper basis to permit the applicant now to pursue a monetary claim under the guise of an appeal. [15] Accordingly, the application for leave to appeal is dismissed. -- 4 of 4 --