Cannon & Anor v Saunders [2017] QCATA 4

CITATION: Cannon & Anor v Saunders [2017] QCATA 4 PARTIES: Peter Cannon Cheryl Pearson (Applicants) v John Saunders (Respondent) APPLICATION NUMBER: APL353-16 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Acting Senior Member Paratz DELIVERED ON: 17 January 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. The Application for Miscellaneous Matters filed by Peter Cannon and Cheryl Saunders on 23 November 2016 is dismissed. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS - PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS - APPEALS - Where an application for directions as to service, admission of fresh evidence on appeal, and production of documents, was made. Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 62(3) Lindgren v Aaron Trigg Painting (No 3) [2011] QCATA 268 Gogolka and Anor v Queensland Building Services Authority [2012] QCAT 308 Uthmann v Ipswich City Council [1998] 1 Qd R 435 APPEARANCES and REPRESENTATION (if any): 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). -- 1 of 7 -- 2 REASONS FOR DECISION [1] A decision was made in a Residential Tenancies matter by an Adjudicator in the Tribunal at Coolangatta on 28 September 2016. [2] Peter Cannon and Cheryl Pearson filed an Application for leave to appeal or appeal that decision in the Tribunal on 24 October 2016. [3] Peter Cannon and Cheryl Pearson filed an Application for Miscellaneous Matters in the Tribunal on 23 November 2016. [4] I made an Order on the Papers without reasons on 6 December 2016 dismissing the Miscellaneous Application filed on 23 November 2016. Peter Cannon and Cheryl Pearson have requested written reasons for that decision. These are the Reasons for that decision. Discussion [5] The decision of the Adjudicator was as follows: (1) The Residential Tenancy Agreement between the parties be terminated as from midnight on 31 October 2016 on the grounds of failure to leave. (2) A Warrant of Possession to issue authorising a police officer to enter the premises of 16B Tomewin Street, Currumbin, Qld, 4223. (3) The Warrant of Possession shall take effect on 1 November 2016 and remain in effect for 14 days, to expire on 14 November 2016. (4) Entry under the warrant shall only be between the hours of 8.00am and 6.00pm. [6] A Senior Member of the Tribunal made an order on 28 October 2016 refusing an application by Peter Cannon and Cheryl Saunders for a stay of the Adjudicator’s decision. [7] The Application for Miscellaneous Matters filed on 23 November 2016 sought the following Directions: (1) That the parties be permitted to serve all documents, matters or things in this case, at each Parties election, by either email transmission or Registered Post. (2) That the parties be at liberty to rely upon fresh evidence that was not before the original decision maker. (3) That the Respondent provides copies of all draft/final residential tenancy/other agreements, correspondence and rent escalations, concerning the current tenants, the Applicants and foreseeable tenancies for 2017 at 16B Tomewin Street, Currumbin for the period 2006-2016, including emails and all notices for rent and outgoings escalations. -- 2 of 7 -- 3 [8] The reasons the Directions were sought was as follows1: (1) The appeal is primarily founded upon fresh evidence that was not available to the Applicants at the original hearing, failure to produce relevant documents and procedural error. (2) The Respondent concedes that he had stolen the fresh evidence couriered by Gold Coast City Council to, and addressed to, the Applicant immediately prior to the hearing at first instance to be available for hearing. (3) The Applicants were not permitted to put on their evidence at the original hearing due to procedural error and absence of stolen documents. (4) The Respondent and his real estate agent contemptuously failed to provide documents to test the forensic reliability of the respondent, denying the source documents to the Tribunal. (5) The Adjudicator self-informed himself from erroneous sources that were not the evidence of either party, without either the sources of information being tested by either party. Those sources and information must be addressed in the appeal. (6) The tenants for the material period have been consistent and included the Applicant. (7) The documents will disclose that the respondent include an after the event clause for the benefit of a tenant that is unlawful, and made in direct reprisal to an investigation undertaken by Gold Coast City Council on 22 April 2016 and designed to cause unlawful harm to the Applicants, and intentionally mislead the tribunal and other government agencies. (8) The documents will show that the inclusion was an invention by way of late amendment only to an agreement for an improper and unlawful purpose. (9) The agreements and documents go directly to a relevant ground available to the applicant to make a cross-application against the respondent. (10) Following disclosure of fresh evidence a fresh question of statutory construction of the Residential Tenancies and Rooming Accommodation Act 2008 arises that directly affects the rights of the Parties to make cross claims authorised under the Residential Tenancies and Rooming Accommodation Act 2008. [9] Directions had been made by a Senior Member of the Tribunal on 23 November 2016 as follows; 1 Application for miscellaneous matters filed 23 November 2016, C2. -- 3 of 7 -- 4 (4) Neither party will be allowed to rely upon any evidence which was not before the original decision maker without leave of the appeal tribunal. Service [10] The Miscellaneous Application seeks that service be made in a certain way. The provisions for service are provided for in the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and the Queensland Civil and Administrative Tribunal Rules 2009 (Qld). [11] Peter Cannon and Cheryl Saunders do not give any basis in the Application for Miscellaneous Matters for the specific method of service that they seek to be applied, or any reason why the usual procedures of the Tribunal are not applicable. [12] The usual provisions of the Act and the rules apply to this Appeal. I make no special Directions as to service. Fresh evidence [13] The question of admission of fresh evidence is determined upon the hearing of the Application for leave to appeal. That is the appropriate time to consider the admission of evidence, as it is considered in the context of the principles and other considerations as to giving leave to appeal. [14] The provisions as to admission of new evidence on appeal are well established. The Deputy President, Judge Kingham noted that2: [18] The principle of finality in litigation counts against evidence not presented at the first hearing being allowed on appeal. Parties are expected to bring their whole case forward at the first hearing. For this reason, new evidence is generally admitted on appeal only in exceptional cases and where it would be unjust to refuse leave. [19] Generally it will not be allowed unless it is ‘almost certain’ or at least ‘reasonably clear’ that the new evidence would have led to the opposite result had it been produced at the first hearing. I am not persuaded the decision would have been different if the evidence Ms Lindgren now wants to produce had been available at the first hearing. [15] It will be a fundamental element of the Application for leave to appeal that Peter Cannon and Cheryl Saunders establish that fresh evidence should be admitted on the established principles. [16] The Directions of the Senior Member made on 23 November 2016 provide for the filing of submissions by the parties as follows: 2) Peter Cannon and Cheryl Pearson must file in the Tribunal two (2) copies and give to John Saunders one (1) copy of: 2 Lindgren v Aaron Trigg Painting (No 3) [2011] QCATA 268 at [18] and [19]. -- 4 of 7 -- 5 (a) all submissions detailing the alleged error/s of fact and/or law made by the original decision maker; and (b) any further submissions in support of the application for leave to appeal or appeal that they wish to rely upon, or advise that no further material will be filed, by: 4:00pm on 16 February 2017. 3) John Saunders must file in the Tribunal two (2) copies and give to Peter Cannon and Cheryl Pearson one (1) copy of all submissions in reply by: 4:00pm on 6 March 2017. [17] Peter Cannon and Cheryl Saunders have yet to file their submissions in the Application for leave to appeal as directed. [18] John James Saunders should have the opportunity to consider the submissions of Peter Cannon and Cheryl Saunders, and respond to the issue of the admission of fresh evidence by appropriate submissions as already directed in relation to the Application for leave to appeal. [19] Peter Cannon and Cheryl Saunders contend that Mr Saunders failed to provide documents to the Tribunal on the hearing of the initial application. It will be a question of law to be determined as part of the Application for leave to appeal as to whether there was an obligation on Mr Saunders to produce additional documents on that hearing. [20] The admission and consideration of new evidence is an integral part of the leave to appeal grounds. In effect, Peter Cannon and Cheryl Saunders are trying to have a central element of the Application for leave to appeal be brought forward, and be decided in isolation, before submissions are received as directed. [21] The question of admission of fresh evidence should be decided after the receipt of submissions from both parties as directed, and on the hearing of the Application for leave to appeal, in the usual way. [22] It is not appropriate to decide the application for admission of new evidence on a miscellaneous application as is being sought in this application. [23] I dismiss the Application for miscellaneous matters in that respect, but that does not prevent Peter Cannon and Cheryl Saunders from pursuing that matter by submissions, and on the hearing of their Application for leave to appeal in the usual way. Production of documents [24] Peter Cannon and Cheryl Saunders seek very wide Directions as to production of documents by Mr Saunders. -- 5 of 7 -- 6 [25] The application seeks virtually all documents of any type in relation to the letting of the premises over a period of ten years between the lessor and any actual or proposed tenant. [26] Section 62(3) of the QCAT Act provides for an order for provision of a document or thing by a party. 62 Directions (3) Without limiting subsection (1), the tribunal may give a direction under this section requiring a party to the proceeding to produce a document or another thing, or provide information to – (a) the tribunal; or (b) another party to the proceeding [27] It is well established that documents will only be directed to be produced where they are described with particularity, and have demonstrated direct relevance to the issues in dispute. Parties are not allowed to use disclosure applications to engage in ‘fishing expeditions’ to seek to obtain possible evidence. [28] The relevant factors in considering an application for production of documents in the Tribunal was considered in Gogolka and Anor v Queensland Building Services Authority3. That matter involved production by a third party, but similar considerations apply between parties. The Queensland Supreme Court decision in Uthmann v Ipswich City Council4 was applied, where Lee J summarised the principles as follows: “It is not possible to lay down a procedure or guidelines for all cases as Miss Osborne submitted. Various requirements were outlined in Lebon v. Lake Placid Resort Pty Ltd and in other authorities therein referred to. However, from this case the following general principles have emerged: (1) The procedure cannot be used if its only purpose is to engage in a purely fishing expedition. (2) Documents sought must be shown by the issuer of the writ to probably relate to a matter in question in the cause. This “matter” is usually demonstrated by the pleadings and/or particulars but may in some cases be shown in some other way. (3) The issuer of a writ must demand production only of specific documents which would be the subject of a subpoena duces tecum at the trial, which he can show are probably in the possession or control of the third party and which probably relate to a matter in question in the cause. If this is not done, the issuer of the writ may be at risk as to costs if an application is brought to the Court by either party. 3 [2012] QCAT 308. 4 [1998] 1 Qd R 435. -- 6 of 7 -- 7 (4) The issuer of the writ must formally give sufficient information in writing to enable the third party to make an informed decision. If this is not done, the issuer of the writ may again be at risk as to costs if an application is brought to the Court. (5) The third party must independently be satisfied that the documents relate to a matter in question in the cause, before they are produced. (6) If the third party produces demanded documents which relate to a matter in question in the cause, the third party is probably protected although this should be clarified by amendment. (7) If the third party is of the view that the documents do not relate to a matter in question in the cause or if there is a doubt in relation to it or if there is any other proper basis for objection to produce the documents whether on the ground of privilege or on a discretionary basis or otherwise, the third party should prudently apply to the Court for an order. (8) The Court has a discretion whether or not to order production or the extent of it, but if the rules are complied with, an order for production will usually be made having regard to the purpose of the procedure which is to assist the administration of justice by minimising costs and facilitating the disclosure of information which would advance fair determination of the issue as early as possible: O’Sullivan v Herdmans Ltd [1987] 1 W.L.R. 1047 at 1055–6; Ansett Transport Industries Ltd v. The Commonwealth; Lebon v. Lake Placid Resort Pty Ltd at 28. If production is ordered, the Court may impose conditions and require undertakings to meet the individual circumstances. (9) If the person who issues the writ is permitted to adduce further evidence at the hearing in order to sustain the order sought, and the third party has no prior notice of it, this may be relevant to the question of costs of the application. (10) There is no reason why before any application is brought to the Court, there should not be dialogue between the third party and the person who issues the writ for clarification or to state grounds of objection. The person who issues the writ may then satisfy the third party in writing, or might desist if the objections raised are accepted.” [29] Peter Cannon and Cheryl Saunders have not identified the documents they seek with any particularity, or indicated why a period of ten years is relevant and relates to the issues in dispute. [30] The application for production of documents is dismissed. Summary [31] The Application for Miscellaneous Matters is made on three grounds. The application is dismissed on each ground. [32] The existing Directions made by the Tribunal otherwise are not affected by this decision, and the parties are still to have regard to them. -- 7 of 7 --