Faulkner v Fricot [2018] QCATA 81

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Faulkner v Fricot & Anor [2018] QCATA 81 PARTIES: JOHN FAULKNER (appellant) v VICTORIA FRICOT and ASHLEY REGAN (respondent) APPLICATION NO/S: APL196-17 ORIGINATING APPLICATION NO/S: MCDT59/17 MATTER TYPE: Appeals DELIVERED ON: 4 June 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 – 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 evidence should be admitted – whether evidence capable of supporting findings – whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 143 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39 Chambers v Jobling (1986) 7 NSWLR 1 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 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 -- 1 of 5 -- 2 Piric & Anor v Claudia Tillier Holdings Pty Ltd [2012] QCATA 152 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Slater v Wilkes [2012] QCATA 12 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 REPRESENTATION: Applicant: K Madgwick of Amber Werchon Property 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] Two Justices of the Peace dismissed John Faulkner’s claim for lost rent from a tenancy with Victoria Fricot and Ashley Regan because the learned Justices found his agent, Amber Werchon Property, had created an estoppel. [2] Mr Faulkner wants to appeal that decision. [3] Because this is an appeal from a minor civil dispute, leave is required.1 [4] In determining whether to grant leave, the 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 [5] I will address the grounds of appeal below. 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 143(3). 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. -- 2 of 5 -- 3 Was the evidence capable of supporting the Tribunal’s findings? [6] Mr Faulkner appealed on the ground that the tenants’ claims about a conversation they had with the then property manager, Justine Ross,6 were incorrect. He also filed an Affidavit from a Ms Justine Ross sworn 4 May 2017 that he said shows that the claims were incorrect. [7] The affidavit is fresh evidence. 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:7 (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? [8] Mr Faulkner did not explain why he did not obtain this affidavit earlier, other than it was prepared in response to what the tenants had said at the hearing and there was no way to foresee these claims would be made and he was therefore unable to defend them. [9] The difficulty with Mr Faulkner’s submission is that as the person making the claim for lost rent, he must prove his case. The appeal process is not an opportunity for a party to again present their case.8 It is the means to correct an error by the Tribunal that decided the proceeding.9 The minor civil disputes jurisdiction requires the Tribunal to deal with matters fairly, quickly and economically.10 This means that parties may not be aware of every argument and submission to be raised by their opponent before the hearing. [10] Moreover, the affidavit would not have any impact on the result of the case because at most, it allows the drawing of a possible alternative inference that the property manager did not have any conversations with the tenants to create an estoppel. But it does not prove this as a fact. [11] The learned Justices’ finding that the property manager gave certain undertakings to the tenants to 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.11 An appellate tribunal may only interfere if the conclusion is ‘contrary to compelling inferences’ in the case.12 [12] Attempting to explain away the learned Justices’ finding with a possible alternative inference does not demonstrate error by the learned Justices. A decision cannot 6 At the original hearing and in the Appeal application form, the property manager is also referred to as ‘Justine Newland’. 7 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, 408. 8 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39, [9]. 9 Ibid. 10 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4. 11 Dearman v Dearman (1908) 7 CLR 549, 561; Fox v Percy (2003) 214 CLR 118, 125-126. 12 Chambers v Jobling (1986) 7 NSWLR 1, 10. -- 3 of 5 -- 4 properly be called erroneous, simply because the learned Justices preferred one conclusion to another possible conclusion.13 [13] Ms Ross did not attend the hearing to give evidence. Her affidavit is sworn some six weeks after the hearing and the learned Justices’ decision. In these circumstances, the Appeal Tribunal is not satisfied that Ms Ross’s affidavit is sufficiently credible to overturn the learned Justices’ finding. Against Ms Ross’ affidavit was: (a) the tenants’ direct oral evidence;14 (b) an email dated 28 October 2016 from Ms Ross to Ms Fricot that ‘rent will be payable by you and Ashley until Sunday’; (c) Ms Madgwick’s concessions of ‘a miscommunication’,15 and that her agency’s service ‘obviously has fallen down in this instance due to this property manager.’16 [14] Unfortunately, the learned Justices’ reasons do lack detail in this instance and refer only to ‘certain undertakings’ of the property manager to support their finding of estoppel.17 Nevertheless, it is implicit that the learned Justices accepted the tenants’ evidence and the surrounding circumstances - including the email and the lack of any evidence from the agent about steps taken to mitigate the landlord’s loss when Ms Ross left the agent’s employ - about whether any more rent was payable to Mr Faulkner. [15] Although the learned Justices did not explicitly refer to all the evidence in delivering their findings, it is not an error to not explain away each and every item of evidence not considered relevant or of sufficient weight.18 [16] Having heard the evidence of both the tenants and the agent Ms Madgwick, the learned Justices were in the best position to assess credibility. It is not an error to prefer one version of facts to another.19 Ms Ross’ affidavit is not sufficient to displace the learned Justices’ findings and should not be admitted into evidence. [17] Nothing in the material or the transcript persuades the Appeal Tribunal that the findings were not open to the Tribunal. The Tribunal’s finding that Mr Faulkner was estopped from claiming rent for the period claimed due to representations made by the then property manager to the tenants was open on the evidence. That finding was consistent with the property agent not alerting the tenants to any ongoing claim for rent, and the lack of evidence from the agent of taking any steps to mitigate Mr Faulkner’s alleged loss of rent for this period. 13 Slater v Wilkes [2012] QCATA 12, [6], citing Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611. 14 Transcript page 1-11, Lines 16-32; page 1-12, Lines 21-28; page 1-16, lines 31-37; page 1-24, lines 35-39; page 1-25, lines 1-4, page 1-31, lines 41-42. 15 Transcript page 1-29, line 13. 16 Transcript page 1-37, lines 16-21. 17 Transcript, page 1-39, lines 33 to 47. 18 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 271. 19 Slater v Wilkes [2012] QCATA 12, [6]. -- 4 of 5 -- 5 [18] The learned Justices’ decision was therefore appropriate and I can find no reason to come to a different view. Should the Appeal Tribunal grant leave to appeal? [19] Leave will not be granted where a party simply desires to re-argue the case on existing or additional evidence.20 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.21 An application for leave to appeal is not, and should not be an attempt to reargue a party’s case at the initial hearing.22 [20] Having read the transcript and considered the evidence, I find nothing to indicate that the learned Justices acted on a wrong principle, or made mistakes of fact affecting their decision, or were influenced by irrelevant matters. The evidence was capable of supporting the Tribunal’s conclusions. [21] 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? [22] The appropriate Order is: (a) Leave to appeal refused. 20 Piric & Anor v Claudia Tillier Holdings Pty Ltd [2012] QCATA 152, [12] (Wilson J). 21 Ibid. 22 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39. -- 5 of 5 --