Andrews v Body Corporate for Skyline Apartments CTS 37631 [2019] QCATA 18

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Andrews v Body Corporate for Skyline Apartments CTS 37631 [2019] QCATA 18 PARTIES: ANTHONY ANDREWS (appellant) v BODY CORPORATE FOR SKYLINE APARTMENTS CTS 37631 (respondent) APPLICATION NO/S: APL164-18 ORIGINATING APPLICATION NO/S: MCDO 55505 of 2017 (Brisbane) MATTER TYPE: Appeals DELIVERED ON: 8 February 2019 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Howe ORDERS: 1. Application by the appellant for leave to adduce fresh evidence refused. 2. Application for leave to appeal refused. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where body corporate unitholder claimed a neighbouring unitholder caused damage to a balcony – where statement of evidence in the form of a statutory declaration the primary evidence of the claimant – where Justices of the Peace preferred the evidence of the claimant over the oral testimony of the appellant – where that conclusion was available in the circumstances – where the appellant claimed he was surprised at the hearing by late presentation of evidence – where the transcript of proceedings showed the appellant had the material before hearing – where the appellant claimed he was prevented from leading evidence of a witness at hearing – where the transcript showed otherwise – whether parties should be responsible for the reasonable conduct of their own cases – where application for leave to adduce fresh evidence refused on the basis the evidence was reasonably available to be led at hearing -- 1 of 8 -- 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28, s 142(3)(a)(i) House v R (1936) 55 CLR 499 Norbis v Norbis (1986) 161 CLR 513 Pickering v McArthur [2005] QCA 294 The Pot Man Pty Ltd v Reaoch [2011] QCATA 318 REPRESENTATION: Applicant: Self-represented Respondent: Self-represented, assisted by Gary Weedon and Adam Chadwick APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). REASONS FOR DECISION [1] Mr Andrews lives at unit 293 in Skyline Apartments in Brisbane. Above him is unit 303. [2] On 3 October 2016 the occupants of unit 303 claimed Mr Andrews, their neighbour below, struck the glass balustrading on the balcony outside their unit with a broom. They said that broke the glass. They complained to the body corporate. The body corporate claimed the cost of repair of the glass from Mr Andrews. Mr Andrews refused to pay. The body corporate sued for the cost of replacement of the glass in the Tribunal. [3] The matter was heard before Justices of the Peace on 4 July 2018. The Justices of the Peace allowed the body corporate claim, ordering Mr Andrews to pay $1023 for costs of repair and the filing fee of $116.40. [4] Mr Andrews now seeks leave to appeal that decision. [1] Given this is an appeal from a decision made in the Tribunal’s Minor Civil Dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.1 [2] Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.2 [3] Mr Andrews complains that the Tribunal relied entirely on one statutory declaration presented as the evidence of the body corporate. He maintains the statutory declaration (he refers to it as an affidavit) was only presented to him at the hearing and it was written nearly 10 months after the incident the subject of the claim occurred. 1 QCAT Act, s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294, [3]. -- 2 of 8 -- 3 [4] The statutory declaration was made by one of the occupants of unit 303 and it said: On 3.10.2016 afternoon at around 5:30 PM it was rainy day, as the design of the balcony (sic) water was pouring down the edge of the balcony. The male neighbour downstairs all of a sudden started yelling and cursing out of (sic) the balcony. Minutes later I started hearing some banging noises. As I turned to my balcony I saw a blue broom sticking out from the floor below and started banging against the glass wall/façade with yelling in curses (sic) still going on. After a few bangs he must have hit a weird spot on the glass. The far right piece of my glass just smashed. I instantly reported the incident to the reception downstairs and notified them the damage of the building property. [5] The statutory declaration was sworn in front of a Justice of the Peace and dated 11 July 2017. [6] There are two parts to the appellant’s complaint concerning the statutory declaration. First, simply that the Tribunal should not have relied on it to reach its decision and second that he was not provided with a copy of it prior to hearing. [7] Per s 28 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the Act’), in conducting proceedings, the Tribunal must observe the rules of natural justice and is not bound by the rules of evidence or any practice or procedure applying to courts of record other than to the extent the Tribunal adopts the rules, practices or procedures and may inform itself in any way it considers appropriate. Additionally the Tribunal is required to act with as little formality and technicality and with as much speed as the requirements of the Act, enabling Act or the Rules permits, alongside a proper consideration of the matters before the Tribunal. [8] Presenting evidence by way of statutory declaration is not unusual in minor civil dispute proceedings in which parties are not legally represented. It was within the discretion of the Tribunal as constituted (the Justices of the Peace appointed to hear the matter) to accept or not accept the evidence presented in that form. [9] Overall there was very limited material placed before the Justices of the Peace in the matter. At hearing the representatives for the body corporate referred to documents being attached to their application, however a perusal of the Tribunal file shows nothing was attached to the application. Given the claim was filed electronically as a minor civil dispute – minor debt application, by commercial agents acting for the body corporate, that was not unusual. It may be the case that the body corporate provided the agents with additional material but that additional material was not filed either with the initiating process or subsequently at hearing. [10] An email from ‘Reception Mantra Quay’ was tendered, which, according to the email, is a reception located inside Skyline Apartments. The email notes that at 5:57 PM on 3 October 2016 the tenants from unit 303 reported that Mr Andrews from unit 293 had used a broom and smashed 303’s balcony glass whilst screaming at them. The email refers to an attached photograph but there was no photograph attached to the email tendered at hearing. [11] Additionally, there was a tax invoice from G James Glass and Aluminium dated 21 December 2016 for $1023 which was for the cost of replacement of one panel of balustrade glass for Skyline Apartments. -- 3 of 8 -- 4 [12] According to the transcript of the proceedings before the Justices of the Peace, Mr Andrews’ evidence was that he knew nothing about broken balustrade glass at unit 303: McMahon JP:… So Mr Andrews, you know, this is still a bit of a mystery to us. One day it was not broken and the next it was, and then there is somebody say (sic) that you got the broom to it… Mr Andrews: Well if you heard the parties that were going on upstairs all the time and the noise and banging. That hailstorm that he mentioned smashed our glass in that very corridor – right, full height, full width glass on our – and how do you know that the hailstorm didn’t weaken the glass there and all the parties with all the girls and everything else – whatever was going on – they didn’t break it. Why don’t they just blame someone else? [Indistinct] it’s too easy to do something like that. … McMahon JP: Very well. Now, Mr Andrews, let’s bring you back to the point – the breaking of the glass. That’s the point that we really need to talk about, not harassment, not having minutes. Can you give us any more details about… Mr Andrews: No idea. … McMahon JP: … What date you think it was broken? Mr Andrews: I have no idea. McMahon JP: Month? Mr Andrews: Who would know? I can’t see up above. There is a balcony that sticks out and the glass sits back here. How do I see from below what happens above me? No idea. McMahon JP: Very well. Well, tell us about the incident with the broom then. Mr Andrews: What broom? McMahon JP: The alleged incident with the broom that’s reported in this stat dec. Mr Andrews: It doesn’t say anything. He said must have. There is no actual allegation and there of anything. In the affidavit, if you read it word for word. McMahon JP: So you’re denying taking a broom to it at any time. Mr Andrews: I had – on the other end, where the other end of the balcony where he was, which is a breach of by-law 10.3, washed water over the side because my wife was sitting there on a bench and got water all over a silk blouse which was damaged beyond repair.3 [13] The learned Justices of the Peace gave Mr Andrews every opportunity to say clearly yes or no whether he had handled a broom at the time of the alleged incident which is 3 Transcript Page (‘T’) 1-7 Line (L) 46 to T1-9 L23. -- 4 of 8 -- 5 the allegation made in the statutory declaration. Rather than answering yes or no Mr Andrews prevaricated and avoided appropriate response. A conclusion both logical and commonly drawn where someone is evasive in answering simple questions is that a simple answer is not in their interests as they see it. The Justices of the Peace said in their reasons for decision they preferred the evidence of the body corporate ‘as opposed to the respondent’s’. Their preference in accepting the claim of the unitholders in 303, as articulated in the statutory declaration, over the oblique responses and prevarications of Mr Andrews, was not unreasonable in the circumstances. [14] The Justices of the Peace enjoyed the advantage of hearing from Mr Andrews. Whilst they did not hear from the deponent of the statutory declaration, they also had before them the complaint by the unitholders on unit 303 recorded in the email from the apartment reception staff. That email was made approximately contemporaneously with the incident which adds weight to the veracity of the statutory declaration evidence regardless that the declaration was not itself made until months later. [15] The decision of the Justices of the Peace to prefer the evidence of the unitholder of unit 303 given by way of statutory declaration only, in circumstances where the deponent did not attend and make himself available for cross-examination, was a matter for them. The Tribunal is authorised to inform itself in any way it considers appropriate.4 According it more weight than Mr Andrews’ oral evidence at hearing to the effect that he knew nothing about damage to the balustrade whilst, fairly obviously, avoiding answering the specific question whether he wielded a broom at the time or not fell to the Justices of the Peace. It was not such an outrageous decision that it can now be said that no reasonable decision-maker could have come to the same conclusion on the evidence available.5 It was within the range of decisions reasonably possible. [16] There is therefore no error disclosed on the part of the Justices of the Peace in respect of this aspect of complaint by Mr Andrews. [17] Mr Andrews also complained that he repeatedly asked the applicants and the Tribunal what evidence would be presented and who would be attending to represent the body corporate at hearing. He says he made an application to the Tribunal about that, but it was dismissed. [18] Mr Andrews filed an application for miscellaneous matters prior to hearing which, amongst other things, sought an order requiring Mr W Payne of PO Box 626, Spring Hill to produce documents and provide ‘evidence of claim and authority to act on behalf of the body corporate’. [19] Mr Andrews failed to make clear in his application before hearing who Mr Payne was and the application was otherwise so vague as to be embarrassing. Any challenge to the standing of the applicant to bring the claim was appropriately a matter of evidence and determination at hearing. Mr Andrews knew at least within 3 months after the incident that the body corporate was claiming against him for the cost of repair of the 4 QCAT Act, s 28(3)(c) 5 House v R (1936) 55 CLR 499, 504-505; Norbis v Norbis (1986) 161 CLR 513, 518-519. -- 5 of 8 -- 6 balustrade glass to the other unit. He said that in his evidence to the Justices of the Peace.6 [20] The Tribunal does not obtain from one party and provide to the other the evidence to be presented at a hearing. That is a matter between parties. Mr Andrew’s complaints about not being supplied with evidence are ill-founded. [21] Mr Andrews also suggests in supplementary submissions associated with an application for leave to adduce fresh evidence on appeal, that the statutory declaration tendered at the hearing by the body corporate was only presented to him for the first time at hearing. He further suggests he was thereby taken by surprise. A perusal of the transcript of the proceedings below reveals the following statement made by Mr Andrews to the Justices of the Peace: Mr Andrews:… They’ve never ever – here is a list – date, email, date, email – all letters I’ve written to these people to say let’s talk about this like civil people so we don’t have to be here today. So that you can tell me exactly what your issue is, because I have no idea. And nowhere in that affidavit – which I got through the BCCM – not from the body corporate because they are unfriendly and unhelpful. They would never give me that. It’s only because the BCCM got it, that I ended up with it. So if I had not gotten that, the first time I’d seen that would have been 10 minutes ago.7 [22] It seems clear that Mr Andrews is talking about the statutory declaration which he refers to as an affidavit throughout the proceedings, and also that Mr Andrews was not surprised by its late production at the hearing. He had it before he walked into the hearing room. There is nothing to his complaint about this. [23] Then Mr Andrews complains that he was overwhelmed with the body corporate having three representatives rather than one. Mr Payne, one of those gentlemen, said at outset that he was not a body corporate committee member and therefore would not represent the body corporate and he said nothing throughout the proceeding until he was actually asked to comment about something by the Justices of the Peace towards the end of hearing. The other two gentlemen, Mr Weedon the chairman of the body corporate, and Mr Chadwick, the secretary, did both speak but principally it was Mr Chadwick. [24] There is no suggestion from a perusal of the transcript that Mr Andrews was overwhelmed in any way by the presence of more than one person representing the applicant. Indeed it was Mr Andrews that was asked at one stage not to interrupt Mr Weedon whose turn it was to speak.8 [25] From the transcript there is no suggestion that Mr Andrews was not accorded natural justice and not given reasonable opportunity to speak and present his case, nor that he did not do so. This complaint is also groundless. [26] Finally Mr Andrews says he should be allowed to adduce fresh evidence in the appeal. He says he had a witness present at the hearing below, but the witness was not allowed 6 T1-8 L31. 7 T1-8 L33-39. 8 T1-12 L21. -- 6 of 8 -- 7 to speak because at the beginning of the proceedings she was identified as his support person only. [27] The transcript shows the Justices of the Peace identified the various people appearing before them and after being advised the names of the three representatives for the applicant the following exchange occurred with Mr Andrews: Mr Andrews: Anthony Andrews, A – n – d – r – e – w – s. I’m the respondent. Schmidt JP: and the lady is there for support. Unidentified speaker: I am there for support. [28] Presumably the person identified as the unidentified speaker in the transcript is the witness Mr Andrews says was available, but not permitted to talk at the hearing. That proposition is not reasonably made out from the brief exchange noted above. [29] The person concerned is identified as Ms Catherine Prowse in the appeal documentation. There was nothing to prevent Mr Andrews advising the Tribunal at the hearing that Ms Prowse would also be giving evidence. That would have been the reasonable thing to do at the time. There was nothing preventing him from doing that. Certainly there was no constraint placed on him by the Justices of the Peace. He simply chose not to say anything about Ms Prowse giving evidence. [30] Parties have an obligation to accept some responsibility for the conduct of their own affairs. A failure to take reasonable care to do that in hearings cannot subsequently be relied on as a reasonable ground of appeal. As stated by Wilson J in The Pot Man Pty Ltd v Reaoch,9 also an appeal from a minor civil dispute hearing: The applicant knew of the hearing date and, although its officers or staff have advanced several explanations for their failure to attend, it is inescapable that they knew of the hearing date and took no appropriate steps in their own interests, including any attempt to seek an adjournment of the hearing.… It is common knowledge that the jurisdiction is a busy and demanding one, in which parties are expected to present their own cases, and act in their own interests. QCAT’s resources for the resolution of disputes serve, as the High Court has recently observed, the public as a whole and not merely the parties to proceedings. The QCAT statutory regime itself places obligations upon parties to take care in their dealings with Tribunal matters and to act in their own best interests.10 [31] Now, at the appeal stage, Mr Andrews wants Ms Prowse’s evidence considered. He also wants to lead evidence about other things such as the weather on the day of the incident. But there is no reasonable explanation offered as to why Ms Prowse’s evidence and the other evidence was not available for the hearing below. It is too late now to lead it in the guise of fresh evidence. Leave to adduce same is refused. [32] In any case, Ms Prowse’s evidence would be of little comfort to Mr Andrews. In her proposed statement of evidence she says Mr Andrews was waving a broom around to attract attention at the time of the incident, something Mr Andrews avoided saying at hearing and Ms Prowse’s evidence in fact offers some support to the claim by the 9 [2011] QCATA 318. 10 Ibid, [7], [9]. -- 7 of 8 -- 8 body corporate that the damage to the glass balustrade was caused by Mr Andrews hitting it with a broom. [33] There are no reasonable prospects of a successful appeal. Leave to appeal is refused. -- 8 of 8 --