Farrell v Elders Everton Park [2014] QCATA 296

CITATION: Farrell v Elders Everton Park [2014] QCATA 296 PARTIES: David Farrell (Applicant/Appellant) v Elders Everton Park (Respondent) APPLICATION NUMBER: APL342-14 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe, OAM DELIVERED ON: 21 October 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where photos not available at hearing – where application for leave to appeal to enable photos to be produced – whether grounds for leave to appeal Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 Pickering v McArthur [2005] QCA 294 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). REASONS FOR DECISION [1] Mr Farrell rented a house through Elders Everton Park. At the end of the tenancy, Elders wanted to claim the bond to cover the cost of cleaning and repairs. Mr Farrell filed an objection to the bond being released to Elders. Two Justices of the Peace, sitting in the minor civil disputes jurisdiction of the tribunal ordered that, of a $1,560 bond, $872.50 be released to Elders and the balance to Mr Farrell. -- 1 of 3 -- 2 [2] Mr Farrell wants to appeal that decision. His only ground of appeal is that he did not produce photos of the house at the hearing and he wants to produce them now. [3] Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.1 Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.2 [4] The appeals 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 such evidence must satisfy three tests. Could Mr Farrell have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?3 [5] An application for leave to appeal is not, and should not be, an attempt to shore up the deficiencies of a party’s case at the initial hearing. [6] Mr Farrell had photos that related to Elders’ claim but he told the learned Justices, a number of times4, that he could not download them and that he would bring them when he came back again (on appeal). He did offer the learned Justices a picture that was on his phone5, which the learned Justices declined. [7] The learned Justices did not offer Mr Farrell an adjournment so that he could get the photos and he did not ask for one. One might be tempted to consider that amounts to a failure to provide procedural fairness except that a number of factors show that not to be the case. [8] Firstly, Mr Farrell knew that Elders was claiming compensation and he knew what the compensation was for6. He should have come prepared. [9] Secondly, a hearing is not a dress rehearsal. No party should come to the tribunal unprepared thinking that there will be a second chance if the decision is not to their liking. [10] Thirdly, the Form 2 that Mr Farrell completed to start the claim states: You must print out all electronic evidence Sometimes evidence (such as photos or receipts) may be stored in an electronic device, such as a mobile phone, tablet or computer. Sometimes evidence may be stored on a CD or DVD. You must provide a printed copy 1 QCAT Act s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294 at [3]. 3 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408. 4 Transcript page 1-13, lines 36 – 38; page 1-14, lines 27 – 30; page 1-15, lines 21 – 24. 5 Transcript page 1-14, lines 33 – 34. 6 Transcript page 1-8, lines 31 – 41. -- 2 of 3 -- 3 of this evidence with your application if you wish to rely on it at the hearing. The Tribunal will not accept a CD or DVD for filing and will not consider evidence provided only in an electronic format. [11] And there is a checklist: Have you included a copy of all the relevant documents and evidence? You should include a printed copy of any of the following documents that are relevant to your application: … Photos [12] The checklist concludes: If you do not include these documents with your application, the tribunal may not allow you to refer to them at the hearing unless you can explain why they were not included with your application. [13] The fresh evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Justices. As that is the only ground for Mr Farrell’s application for leave to appeal, leave should be refused. -- 3 of 3 --