Crowdey v Townsville City Council [2014] QCATA 190

CITATION: Crowdey v Townsville City Council [2014] QCATA 190 PARTIES: Maurice John Crowdey (Applicant/Appellant) v Townsville City Council (Respondent) APPLICATION NUMBER: APL203-14 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe, OAM DELIVERED ON: 22 July 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal granted. 2. Appeal dismissed. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where excess water charges – where allegation that water meter was faulty – where tribunal held owner liable for excess water charges – whether grounds for leave to appeal PROCEDURE – LEGAL REPRESENTATION – where Council sought leave to appeal by legal representative – where application dismissed – where lawyer stayed and assisted Council during hearing – whether assistance permissible – whether assistance a breach of rules of natural justice Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 3(b), 28(2), 28(3), 43 Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Pickering v McArthur [2005] QCA 294 Clarke v Japan Machines (Australia) Pty Ltd -- 1 of 4 -- 2 [1984] 1 Qd R 404 Chambers v Jobling (1986) 7 NSWLR 1 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] In October 2013, Mr Crowdey received an excess water bill from the Townsville City Council. He filed an application in the tribunal seeking an order setting aside the charge on the grounds that the Council’s water meter was faulty. Two Justices of the Peace, sitting in the minor civil disputes jurisdiction of the tribunal, ordered the Council provide Mr Crowdey with a copy of a water meter test report. They further ordered that, if that report showed the meter was not faulty, Mr Crowdey was to pay the Council the excess water charges of $2,354.22. [2] Mr Crowdey wants to appeal that decision. He says the learned Justices allowed the Council’s solicitor to remain in the hearing room against his wishes. He says the solicitor wrote notes to the Council representative during the hearing. He says the test done on the water meter was a volume test, not a strip down test. Mr Crowdey says that an earlier application to the tribunal was struck out on information that turned out to be untrue and which affects the credit of the Council officer who appeared before the tribunal. He says that he still does not have a copy of a letter from the Council to him that was tendered at the hearing. He says the water graph submitted to the learned Justices was not supported by figures. Mr Crowdey disputes that he was sent five excess water notices. Mr Crowdey says that the Council has not proven that he has used the volume of water alleged. [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 learned Justices refused an application for leave for representation at the hearing. The Council’s legal officer stayed to observe the hearing. The Council admits that its legal officer assisted the Council during the hearing. It submits that this was not unfair or a breach of tribunal rules. [5] The QCAT Act turns its face against legal representation in the tribunal3 but there is nothing to prevent a party obtaining the assistance of a lawyer 1 QCAT Act s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294 at [3] per Keane JA. 3 QCAT Act s 43. -- 2 of 4 -- 3 in the formulation of its case. The issue is whether the legal officer’s assistance at the hearing can be a ground for leave to appeal. [6] Section 3(b) of the QCAT Act requires the tribunal to deal with matters in a way that is fair and just. Section 28(2) requires the tribunal to act fairly. Section 28(3) states that the tribunal must observe the rules of natural justice. Allowing a lawyer to assist a party in the presentation of the case, when legal representation was refused, is not fair, is not just and does not satisfy the rules of natural justice. [7] It is regrettable that Mr Crowdey did not alert the learned Justices to this issue during the hearing, when they could have taken action. Unfortunately, the learned Justices’ hearing is attended by an error not of their making and leave to appeal should be granted. [8] The balance of Mr Crowdey’s submissions addresses the substantive issues in the hearing and, therefore, go to whether I should allow the appeal. [9] Mr Crowdey’s submission about the type of water meter test introduces fresh evidence before the appeals tribunal. [10] 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 Crowdey 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?4 [11] Mr Crowdey could not have obtained this evidence with reasonable diligence before the hearing but, for the reasons that follow, I am not persuaded that the evidence will have an important impact on the result of the case. Further, the evidence is not credible. Although Mr Crowdey makes the submission, and he provided a copy of the job card, he did not obtain a statement from the relevant Veolia employee about the significance of the difference between a strip down test and a volume test. [12] Mr Crowdey first filed an application naming Mr Harvey as respondent, not the Council. An Adjudicator struck out the application on this very limited point. She noted Mr Harvey’s assertions that he had no dealings with Mr Crowdey, and he did not sign or authorise any correspondence to Mr Crowdey. Mr Crowdey says that the letter of 29 October 2013 that Mr Harvey produced at the hearing directly contradicted the Adjudicator’s findings in the earlier application and, therefore, Mr Harvey’s credit is in issue. [13] The letter of 29 October 2013 is not from Mr Harvey. It is from a person named S Bingley. There is no merit in this ground of appeal. 4 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408. -- 3 of 4 -- 4 [14] Mr Crowdey has contradictory submissions about the graph of water usage by him and his neighbours. He says that, without numbers, the graph is meaningless and the learned Justices erred in considering it. He also says that the graph confirms there was an anomaly in his water meter because his usage remained excessively high when his neighbours’ usage dropped. [15] The learned Justices considered the graph5 but it does not appear to be a decisive factor in their decision. However Mr Crowdey frames his submission about the graph, the evidence does not support a finding that the learned Justices were in error. [16] The letter of 29 October 2013, addressed to Mr Crowdey at his regular home address, refers to six letters advising of increased water usage and noting the dates on which they were sent. Mr Harvey put those letters to Mr Crowdey6. The evidence can support the learned Justices’ finding that the Council sent warning letters to Mr Crowdey. [17] The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.7 An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.8 [18] Mr Crowdey bore the onus of satisfying the learned Justices that the water meter was faulty and he did not succeed. He did not persuade the learned Justices that the water meter was faulty. He did not persuade the learned Justices that he should not be responsible for the excess water charges. The evidence before the learned Justices was capable of supporting their conclusions. The learned Justices’ conclusions are not contrary to compelling inferences. There is nothing in the transcript to persuade me that the learned Justices should have taken a different view of the facts. [19] Although leave to appeal is granted, the appeal is dismissed. 5 Transcript page 1-27 lines 17 – 19. 6 Transcript page 1-16 lines 13 – 20. 7 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125 – 126. 8 Chambers v Jobling (1986) 7 NSWLR 1 at 10. -- 4 of 4 --