Gray v Nish

[2014] QCATA 24

CITATION: Gray v Nish [2014] QCATA 024

PARTIES:	Wendy Margaret Gray (Applicant/Appellant)
v
Sharrn Lee Nish (Respondent)

APPLICATION NUMBER: APL459-13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member Stilgoe, OAM

DELIVERED ON: 11 February 2014

DELIVERED AT: Brisbane

ORDERS MADE: 1.    Leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – whether grounds for leave to appeal

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):

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. Ms Nish rented a home from Ms Gray through My Realty Gold Coast. Ms Nish was not happy with the condition of the home, so she filed an application for compensation against My Realty. Ms Gray applied to be joined as a party to the proceeding. The tribunal ordered Ms Gray pay Ms Nish $1,467 compensation.

2. Ms Gray wants to appeal that decision. She said that the case was heard with incorrect facts. She says that My Realty failed to act in her best interests and that she did not receive a fair trial because of the agent’s incompetence. She says that the entry condition report was “not valid”.

3. 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?[1]  Is there a reasonable prospect that the applicant will obtain substantive relief?[2]  Is leave necessary to correct a substantial injustice caused by some error?[3]  Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?[4]

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

   [2]Cachia v Grech [2009] NSWCA 232 at 2.

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

   [4]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.

4. Ms Gray has appointed a new agent.  That agent filed a folder full of material that, Ms Gray says, the appeals tribunal should consider. The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined[5]. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Ms Gray 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?[6]

   [5]QCAT Act ss 137 and 138.

   [6]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.

1. 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. Much of the material in the new agent’s file is a repetition of what has already been filed. Some of the material refers to what has happened since.

1. The hearing was adjourned for two weeks, presumably, to allow parties to file more material.  Both My Realty and Ms Gray appeared at the hearing. Any documents that existed then should have been before the tribunal. Ms Gray provided no explanation as to why the material was not before the learned Adjudicator. 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.

1. Ms Gray does not point to any error by the learned Adjudicator. Instead, she says that My Realty did not prepare the case properly. That is a matter between Ms Gray and My Realty. It is not for the appeals tribunal to intervene simply because Ms Gray did not like the decision. I have read the transcript and considered the learned Adjudicator’s reasons for decision. The evidence can support the learned Adjudicator’s findings and I can find no reason to come to a different view.

1. 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.