Booloumba Downs Pty Ltd v Donovan & Anor [2018] QCATA 99

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Booloumba Downs Pty Ltd v Donovan & Anor [2018] QCATA 99 PARTIES: BOOLOUMBA DOWNS PTY LTD (appellant) v NEIL DONOVAN and MICHELLE HAYNES (respondent) APPLICATION NO/S: APL373-17 ORIGINATING APPLICATION NO/S: MCDT 1638/17 MATTER TYPE: Appeals DELIVERED ON: 3 July 2018 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Hughes ORDERS: Leave to appeal refused. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – CONTROL OVER PROCEEDINGS – where allegation of denial of natural justice – where Tribunal has mandate to deal with matters quickly – where appellant was given opportunity to present case – where appellant had obligation to prove its case – where appellant had obligation to act in own best interests and present relevant witnesses – where appellant was afforded natural justice within context of Tribunal’s minor civil disputes jurisdiction APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – IN GENERAL – where applicant applied for leave to appeal – where applicant sought to introduce evidence not adduced at first instance – whether new evidence should be admitted – whether evidence capable of supporting findings – where findings open on evidence – where new evidence not sufficient to disturb relevant finding – whether leave to appeal should be granted -- 1 of 7 -- 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 28, s 143 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39 Cachia v Grech [2009] NSWCA 232 Chambers v Jobling (1986) 7 NSWLR 1 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 Creek v Raine & Horne Mossman [2011] QCATA 226 Dearman v Dearman (1908) 7 CLR 549 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 Kioa v West (1985) 159 CLR 550 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611 Piric & Anor v Claudia Tillier Holdings Pty Ltd [2012] QCATA 152 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe [2013] QCATA 212 Selvanayagam v University of the West Indies [1983] 1 All ER 824 Slater v Wilkes [2012] QCATA 12 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 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). REASONS FOR DECISION What is this appeal about? [1] On 26 June 2017, an Adjudicator dismissed Booloumba Downs Pty Ltd’s claim for compensation from its tenancy with Neil Donovan and Michelle Haynes. Booloumba wants to appeal that decision. [2] Because this is an appeal from a minor civil dispute, leave is required.1 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 143(3). -- 2 of 7 -- 3 [3] In determining whether to grant leave, the Appeal Tribunal will consider established principles including: (a) whether there is a reasonably arguable case of error in the primary decision;2 (b) whether there is a reasonable prospect that the appellant will obtain substantive relief;3 (c) whether leave is needed to correct a substantial injustice caused by some error;4 and (d) whether there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.5 [4] I will address the grounds of appeal below. Did the Tribunal afford Booloumba natural justice? [5] Booloumba submitted that that the learned Adjudicator did not afford it natural justice because it did not receive any information from the tenants before the hearing. In particular, Booloumba submitted that it was not provided with a copy of an email dated 16 December 2016 that the learned Adjudicator relied upon. [6] The Tribunal must observe the rules of natural justice.6 However, natural justice is a flexible notion that must be commensurate with the nature and demands of the jurisdiction – it is a matter of construction of a particular statutory power.7 The requirements of procedural fairness must be adjusted to the statutory framework governing the Tribunal.8 [7] The Tribunal’s statutory mandate to conduct proceedings in an informal way that minimises costs to parties and is as quick as is consistent with achieving justice,9 is at its most acute in the busy and demanding minor civil disputes jurisdiction, where thousands of applications are processed and determined each year.10 Within this context, the Tribunal is not bound by the rules of evidence,11 and may inform itself in any way it considers appropriate.12 [8] It is true that the email dated 16 December 2016 was not handed up until the day of the hearing. However, the minor civil disputes jurisdiction requires the Tribunal to deal with matters fairly, quickly and economically.13 This means that parties may not be aware of all of the material relied upon by their opponent before the hearing. 2 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 3 Cachia v Grech [2009] NSWCA 232, 2. 4 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 5 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 577, 580. 6 QCAT Act, s 28(3)(a). 7 Kioa v West (1985) 159 CLR 550, 584-585. 8 Creek v Raine & Horne Mossman [2011] QCATA 226, [15] (Wilson J). 9 QCAT Act, s 4(c). 10 Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe [2013] QCATA 212, [46] (Wilson J). 11 QCAT Act, s 28(3)(b). 12 Ibid s 28(3)(c). 13 QCAT Act, s 3, s 4. -- 3 of 7 -- 4 [9] I have read the transcript. The learned Adjudicator quoted the relevant part of the email and its date to Booloumba.14 He explained its effect to Booloumba and gave it an opportunity to respond.15 Moreover, the email purports to be authored by Ken Schroder, Director and representative of Booloumba who attached his own copy of the email to his submissions supporting the appeal. In these circumstance s, Booloumba cannot be considered to have been caught by surprise by the contents of the email. [10] The learned Adjudicator asked relevant questions of both parties and gave them an opportunity to respond, referring to supporting material where appropriate. By doing so, he focused the hearing on the issues to be determined and used time and resources efficiently, consistent with the Tribunal’s mandate. Extending the requirements of natural justice beyond this is inconsistent with the QCAT Act and would make the minor civil disputes jurisdiction cumbersome. [11] As the entity making the claim for compensation, Booloumba must prove its case. The appeal process is not an opportunity for a party to again present their case.16 It is the means to correct an error by the Tribunal that decided the proceeding.17 [12] The learned Adjudicator afforded Booloumba natural justice within the context of the Tribunal’s minor civil disputes jurisdiction. [13] This ground of appeal is dismissed. Was the evidence capable of supporting the Tribunal’s findings? [14] Mr Schroder filed four emails between him and the agent that he submitted clearly showed that the tenants installed the Internet and Foxtel without Booloumba’ s permission. [15] A threshold issue is whether these emails are fresh evidence. This is because the Appeal Tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce fresh evidence must satisfy three tests:18 (a) Could the parties have obtained the evidence with reasonable diligence for use at the trial? (b) If allowed, would the evidence probably have an important impact on the result of the case? (c) Is the evidence credible? [16] The emails predate the hearing by some six months. Booloumba did not explain why it did not obtain provide them at the hearing. Adopting a view most favourable to 14 Transcript pages 1-13 to 1-14. 15 Transcript pages 1-13 to 1-14. 16 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39, [9]. 17 Ibid. 18 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, 408. -- 4 of 7 -- 5 Booloumba, the Appeal Tribunal will infer that the reason for their late appearance is that Booloumba was unaware of the evidence it would need to counter at the hearing. [17] Unfortunately for Booloumba, it cannot seek to introduce rebuttal evidence after the Tribunal has delivered its findings at a hearing. The onus is always upon Booloumba to present its case and bring all relevant material to the hearing. Booloumba had an obligation to act in its own best interests:19 The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, “… the public as a whole, not merely the parties to the proceedings”. Finality in litigation is highly desirable, because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties. [18] Moreover, the ‘new’ emails do not prove that the tenants installed the Internet and Foxtel without permission. Mr Schroder referred the Appeal Tribunal to the last paragraph of his email to the agent dated 6 December 2016 at 2.58pm that reads: As well when the tenants made the application to rent two matters were excluded. Those being “Foxtell” (sic) plus broad band internet (sic) connection. Please ask them do they now wish to have mobile phone connection service? [19] The emails do not clearly convey instructions to the agent that Foxtel and Internet were not to be installed. They do not prove that the agent did not authorise their installation on behalf of Booloumba. The emails are not admitted into evidence and the appeal must proceed on the evidence before the learned Adjudicator. [20] The learned Adjudicator’s finding that Booloumba approved the installation is a finding of fact. The Appeal Tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.20 An appellate tribunal may only interfere if the conclusion is ‘contrary to compelling inferences’ in the case.21 [21] I have reviewed the evidence and the transcript. In support of his finding that Booloumba approved the installation, the learned Adjudicator expressly referred to an email from Mr Schroder to Australian Private Networks Pty Ltd dated 6 December 2016 at 2.43pm that relevantly reads: Thanks for the call about the application from Neil and Michelle. Yes. That is ok. I understand that all the external equipment will be taken away and new equipment will be installed. For the satellite disk it would be ok for the roof installation to be in the same location as the existing removed disk. 19 Creek v Raine & Horne Mossman [2011] QCATA 226, [13], citing with approval Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 217. 20 Dearman v Dearman (1908) 7 CLR 549, 561; Fox v Percy (2003) 214 CLR 118, 125-126. 21 Chambers v Jobling (1986) 7 NSWLR 1, 10. -- 5 of 7 -- 6 I am not sure where the cabling will go inside the residence. I will establish this from the agent. It is preferable that no new intrusions are made internally in the property. [22] This evidence is sufficient to support the learned Adjudicator’s finding that Mr Schroder approved the installation on behalf of Booloumba. In addition, the lease agreement itself does not prohibit the installation of Foxtel and the Internet. Indeed, the lease agreement specifically contemplates their installation with the landlord’s permission.22 [23] Booloumba also submitted that it should recover the bond to cover the cost of cleaning and referred to all All-Brite Invoice dated 23 May 2017 for $458.00. The learned Adjudicator dismissed this claim on the basis that the tenants returned to the property and cleaned as requested by the agent. [24] Leave to appeal will not be granted where a party simply desires to re-argue the case on existing or additional evidence.23 A clear purpose of the requirement for leave, before a party has the right to appeal, is to prevent any attempt to simply conduct a retrial on the merits of the case.24 An application for leave to appeal is not, and should not be an attempt to reargue a party’s case at the initial hearing.25 [25] It is clear that the learned Adjudicator preferred the tenants’ evidence about the approval of the installation and the cleaning. Having heard the evidence of both parties, the learned Adjudicator was in the best position to assess credibility. The learned Adjudicator referred to the evidence to support his ultimate finding, which he was entitled to weigh accordingly.26 It is not an error to prefer one version of facts to another.27 [26] It is not an error for the Tribunal to not explain away each and every item of evidence not considered relevant or of sufficient weight.28 It is sufficient that the Tribunal’s reasons set out the evidence it considered relevant and the basis for its findings.29 The Tribunal’s findings that Booloumba approved the installation and the tenants cleaned the premised to an appropriate standard were open on the evidence. [27] Nothing in the material or the transcript persuades the Appeal Tribunal that these findings were not open to the learned Adjudicator. [28] The learned Adjudicator’s decision was therefore appropriate and I can find no reason to come to a different view. [29] This ground of appeal is dismissed. 22 General Tenancy Agreement dated 3 November 2016, Annexure A, Special Conditions 29, 30. 23 Piric & Anor v Claudia Tillier Holdings Pty Ltd [2012] QCATA 152, [12] (Wilson J). 24 Ibid. 25 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39. 26 Selvanayagam v University of the West Indies [1983] 1 All ER 824, 826. 27 Slater v Wilkes [2012] QCATA 12, [6]. 28 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 271. 29 Transcript, pages 1-18 to 1-23. -- 6 of 7 -- 7 Should the Appeal Tribunal grant leave to appeal? [30] The Appeal Tribunal is not satisfied that any of the emails attached to Booloumba’ s supporting submissions are sufficient to disturb the learned Adjudicator’s finding that Booloumba approved the installation of Foxtel and the Internet. [31] Moreover, attempting to explain away the learned Adjudicator’s findings about installation and cleaning with possible alternative inferences does not demonstrate error by the learned Adjudicator. A decision cannot properly be called erroneous, simply because the learned Adjudicator preferred one conclusion to another possible conclusion.30 [32] Having read the transcript and considered the evidence, I find nothing to indicate that the learned Adjudicator acted on a wrong principle, or made mistakes of fact affecting his decision, or was influenced by irrelevant matters. The evidence was capable of supporting the learned Adjudicator’s conclusions. [33] There is no question of general importance for the Appeal Tribunal to determine. 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. What is the appropriate Order? [34] The appropriate Order is that leave to appeal is refused. 30 Slater v Wilkes [2012] QCATA 12, [6], citing Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611. -- 7 of 7 --