Daniel v Townsville City Council

[2018] QCATA 82

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Daniel & Anor v Townsville City Council [2018] QCATA 82

PARTIES:

HEIDRUN GISELA DANIEL
and
RICHARD GEOFFREY GLEDHILL

(appellants)             

v

TOWNSVILLE CITY COUNCIL

(respondent)

APPLICATION NO/S:

APL310-17

ORIGINATING APPLICATION NO/S:

MC00215/17

MATTER TYPE:

Appeals

DELIVERED ON:

4 June 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDERS:

Leave to appeal refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – interference with findings of Tribunal below – functions of appellate tribunal – where findings based on documentary evidence – where claim for unliquidated damages – where claim not ‘minor civil dispute’ – where claim not within jurisdiction

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 12, Schedule 3

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
Piric & Anor v Claudia Tillier Holdings Pty Ltd [2012] QCATA 152
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

Rothenberger Australia Pty Ltd v Poulsen (2003)
58 NSWLR 288

REPRESENTATION:

Applicants:

Self-represented

Respondent:

C De Kievit, Townsville City Council

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

1. Heidrun Daniel and Richard Gledhill claim they have suffered damage as a result of the Townsville City Council redirecting stormwater runoff onto their property. Before the matter proceeded to a hearing, or even mediation, a Judicial Registrar dismissed their ‘Application for minor civil dispute – minor debt’ for want of jurisdiction.[1]

   [1]Order dated 24 August 2017.

2. Ms Daniel and Mr Gledhill have applied for leave to appeal that decision. They say they were not given a fair hearing and wish to recover costs due to drainage works that would not have been necessary prior to the Council installing a flume to redirect the stormwater.

3. In determining whether to grant leave, the Tribunal will consider established principles including:

   (a)whether there is a reasonably arguable case of error in the primary decision;[2]

   (b)whether there is a reasonable prospect that the appellant will obtain substantive relief;[3]

   (c)whether leave is needed to correct a substantial injustice caused by some error;[4] and

   (d)whether there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.[5]

   [2]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

   [3]Cachia v Grech [2009] NSWCA 232, 2.

   [4]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

   [5]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk

   Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 577, 580.

   Did the Tribunal have jurisdiction to decide claim?

4. The grounds of appeal did not address the threshold issue of the Tribunal’s jurisdiction over the claim. This is important because the Tribunal dismissed the application for want of jurisdiction.

5. The learned Judicial Registrar’s decision about want of jurisdiction is correct. The learned Judicial Registrar was sitting in the Tribunal’s ‘minor civil disputes’ jurisdiction. Section 12 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) confers the Tribunal’s jurisdiction over minor civil disputes. A ‘minor civil dispute’ is limited to debts or liquidated demands, matters arising out of contracts between consumers and traders, damage to property arising out of the use of a motor vehicle, or defects in them, tenancy matters and dividing fence disputes.[6]

   [6]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 12(4)(a), Schedule 3.

6. The claim is for damages arising from acts or omissions by the Council. This requires an assessment of compensation for loss occasioned by negligence or possibly nuisance. Ms Daniel and Mr Gledhill filed invoices in an endeavour to calculate their loss. Their claim is therefore for unliquidated damages:[7]

   Unliquidated damages is where a claim is made for a sum which cannot be determined without consideration, by the Tribunal, of the applicant’s evidence in support of the claim – for example, a claim in which the precise amount which should be awarded cannot be determined from the terms of a prior agreement between the parties, or some other standard; and must be calculated by reference to invoices, quotations or the like.

   [7]Rothenberger Australia Pty Ltd v Poulsen (2003) 58 NSWLR 288, 297; Practice Direction 9 of 2010.

7. The Tribunal does not have the power to award damages in its minor civil disputes jurisdiction for unliquidated damages arising from negligence or nuisance.

8. The claim is not for a debt or liquidated demand and does not otherwise fall within the definition of ‘minor civil dispute’. The learned Judicial Registrar therefore correctly dismissed the application for want of jurisdiction.

   Should the Appeal Tribunal grant leave to appeal?

9. Leave will not be granted where a party simply desires to re-argue the case on existing or additional evidence.[8] A clear purpose of the requirement for leave, before a party has the right to appeal, is to prevent any attempt to simply conduct a retrial on the merits of the case.[9]

   [8]Piric & Anor v Claudia Tillier Holdings Pty Ltd [2012] QCATA 152, [12] (Wilson J).

   [9]Ibid.

10. There is no question of general importance for the Appeal Tribunal to determine. There is no reasonably arguable case that the Tribunal 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.

11. Leave to appeal is refused.

    .