Burintharasuchat v Middleton & Ganis [2014] QCATA 91

CITATION: Burintharasuchat v Middleton & Ganis [2014] QCATA 91 PARTIES: Suthida Burintharasuchat Nanthakan Burintharasuchat (Applicants/Appellants) v Adam Middleton Metaxa Ganis (Respondents) APPLICATION NUMBER: APL042 -14 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe, OAM DELIVERED ON: 22 April 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where claim in excess of $5,000 – where claim adjourned from Justices of the Peace – whether tribunal has jurisdiction to entertain claim – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 206L Dearman v Dearman (1908) 7 CLR 549 at 561 Fox v Percy (2003) 214 CLR 118 Pickering v McArthur [2005] QCA 294 Clarke v Japan Machines (Australia) Pty Ltd [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). -- 1 of 3 -- 2 REASONS FOR DECISION [1] The Burintharasuchats vacated their tenancy in George St Brisbane early. The lessors’ agent filed a claim for unpaid rent and compensation for cleaning, repairs and maintenance and water consumption costs. A member of the tribunal ordered the tenants pay the lessors $5,437.40. [2] The tenants want to appeal that decision. They say that they did not receive natural justice because the learned Member did not consider their evidence. They say that they were not given an opportunity to respond to the validity of the lessors’ evidence. They say that the learned Member did not have jurisdiction to make an order in excess of $5,000. They say the learned Member was biased against them because she constantly referred to them as “young”. [3] Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The principles the appeals tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as His Honour then was) in Pickering v McArthur1: There are numerous authorities, in varying language but with unvarying emphasis, that 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. [4] It is true that, when this matter first came before the tribunal, the tenants were told that the tribunal’s jurisdiction was limited to $5,000. That is because they appeared before two Justices of the Peace, whose jurisdictional limit is $5,0002. The hearing on 21 January 2014 was before a member of the tribunal, whose jurisdiction in these matters is unlimited. [5] The transcript shows that the learned Member took more evidence from the lessors and their agent than from the tenants. I am not, however, persuaded that the process was unfair. [6] The tenants wanted to tell the learned Member about matters that were not the subject of the application before the tribunal. In particular, they wanted to tell the learned Member that the premises were unliveable and, therefore, they did not have to pay rent. The learned Member properly explained to the tenants that they had to give notice of such a claim3. In the absence of a claim, the learned Member’s reluctance to consider the tenants’ evidence is understandable. [7] The tenants’ interpreter asked the learned Member to take some of the “defendant’s” evidence as she felt that she hadn’t been able to give any evidence to the learned Member4. The learned Member explained5 that 1 [2005] QCA 294 at [3]. 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 206L. 3 Transcript page 1-13, lines 19-29; page 1-14, lines 9-10. 4 Transcript page 1-30, lines 12-14. -- 2 of 3 -- 3 everything the tenants said to her was evidence but, if there was something else they wanted to say, the learned Member would hear it. The tenants did speak to the issues and the learned Member did take that evidence. [8] I can find only one instance of the learned Member referring to the tenants as “young”. That occurs towards the end of the learned Member’s reasons for decision6. It shows no bias against the tenants. It is simply a comment. I do not accept there is any evidence the learned Member treated the tenants unfairly because of their age. [9] The tenants have filed fresh evidence with their application for leave to appeal. 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 the tenants 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?7 [10] I understand that the tenants feel they were given the wrong advice about their potential claim. I also understand that they might not have understood their rights and obligations under the tenancy agreement. That might explain why they were not prepared for the hearing. The fresh evidence they have filed does not have an important impact on the result of the case, as it does no more than confirm the evidence parties gave at the hearing. The fresh evidence should not be admitted. [11] The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.8 An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.9 [12] I have read the transcript and considered the evidence on the tribunal file. The evidence can support the learned Member’s findings and there is nothing in the transcript to persuade me she should have taken a different view of the facts. [13] There is no reasonably arguable case that the learned Member was in error. Leave to appeal should be refused. 5 Transcript page 1-30, lines 16-18. 6 Transcript page 1-34, line 6. 7 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408. 8 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126. 9 Chambers v Jobling (1986) 7 NSWLR 1 at 10. -- 3 of 3 --