Bagnall v McGrogan [2013] QCATA 107

CITATION: Bagnall & Anor v McGrogan [2013] QCATA 107 PARTIES: Mr Mervyn Phillip Bagnall Mrs Cheryl Anne Bagnall (Applicant/Appellant) v Mr Adam McGrogan (Respondent) APPLICATION NUMBER: APL327-12 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Peta Stilgoe, Senior Member DELIVERED ON: 15 April 2013 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal refused CATCHWORDS: MINOR CIVIL DISPUTE – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 139(5) Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Chambers v Jobling (1986) 7 NSWLR 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. Cachia v Grech [2009] NSWCA 232 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 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 APPEARANCES and REPRESENTATION (if any): -- 1 of 3 -- 2 This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] Mr McGrogan and Ms Gesler signed a tenancy agreement for a property at Underwood, owned by Mr and Mrs Bagnall. As soon as Mr McGrogan and Ms Gesler moved into the house, they found major issues. The house had significant water leaks, it was mouldy and sections of the structure were unsafe. Mr McGrogan and Ms Gesler vacated the house and claimed damages. [2] Mr and Mrs Bagnall did not appear at the Tribunal hearing. The learned Adjudicator found that the property was not fit to live in. He ordered that the bond be refunded to Mr McGrogan and Ms Gesler. He also ordered that Mr and Mrs Bagnall pay the tenants $1 345. [3] Mr and Mrs Bagnall applied to reopen the decision. The Tribunal refused that application. They now want to appeal the learned Adjudicator’s decision. Their only ground of appeal is that they did not have an opportunity to present their side of the story at the hearing. [4] A person cannot appeal the Tribunal’s decision to refuse a reopening1. If that is Mr and Mrs Bagnall’s intention in this application, then the Appeals Tribunal has no jurisdiction. [5] Mr and Mrs Bagnall have filed fresh material to support 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 determined2. Ordinarily, an application for leave to adduce such evidence must satisfy three tests. Could Mr and Mrs Bagnall 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 [6] 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. Mr and Mrs Bagnall have provided no explanation as to why this material was not available earlier. That evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Adjudicator. [7] Because this is an appeal from a decision of the Tribunal in its minor civil disputes jurisdiction, leave is necessary. The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?4 Is there a reasonable prospect that the applicant will obtain substantive relief?5 Is leave necessary to correct a substantial injustice 1 QCAT Act, s139(5). 2 QCAT Act, ss 137-8 . 3 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408. 4 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 5 Cachia v Grech [2009] NSWCA 232 at 2. -- 2 of 3 -- 3 caused by some error?6 Is there a question of general importance upon which further argument, and a decision of the Appeals Tribunal, would be to the public advantage?7 [8] Mr and Mrs Bagnall have not pointed to any error by the learned Adjudicator. They have not explained their failure to engage with the Tribunal at the hearing and they have not explained their delay in filing the application for leave to appeal. [9] There is no question of general importance that should be determined by the Appeals Tribunal. There is no reasonably arguable case that the learned Adjudicator 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. 6 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 7 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580. -- 3 of 3 --