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Queensland Judgments
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  • Unreported Judgment

Watkins v Goswami

 

[2020] QCA 151

[2020] QCA 151

COURT OF APPEAL

HOLMES CJ

PHILIPPIDES JA

MULLINS JA

Appeal No 226 of 2020

QCAT No 10 of 2018

DEBBIE WATKINS Applicants

KEVIN WATKINS

v

GEMMA GOSWAMI

ANOOP GOSWAMAI Respondents

BRISBANE

MONDAY, 20 JULY 2020

JUDGMENT

HOLMES CJ:  I will ask Justice Philippides to give her reasons first.

PHILIPPIDES JA:  This is an application for leave to appeal, although incorrectly stated as an appeal, brought by Mrs Watkins against the decision of Daubney J sitting as President of the Queensland Civil and Administrative Tribunal (QCAT) on 26th November 2019.  By that decision, his Honour refused Mrs Watkins’ request for leave under s 49 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) to bring a new appeal proceeding before the appeal tribunal in respect of two minor civil tenancy disputes between Mrs Watkins as landlord and the respondents as tenants.  Those disputes were determined by an adjudicator on 14 March 2018 largely in the respondent’s favour with orders being made that as to the rental bond paid by the tenants, $3,000 be distributed to the respondents and $200 to Mrs Watkins and that Mrs Watkins pay $4,216 in compensation pursuant to s 94 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) consequent on a finding of the pigeon infestation at the rental property.  The Claims by Mrs Watkins, who was represented at that hearing by her husband, including her claim for damage to the property, were rejected apart from the $200 mentioned.

An application by Mrs Watkins for leave to appeal was dismissed on 18 June 2018 on the ground of non-compliance with directions.  Mrs Watkins subsequently filed an application to reopen the appeal proceeding following communication with QCAT’s registry.

On 23 July 2019, a QCAT member determined that that application to reopen was misconceived.  However, because it had been suggested by the registry and as the applicant has filed considerable material, the member treated the application as a request for leave to bring a new appeal proceeding, pursuant to s 49 of the QCAT Act, and referred the matter to Daubney J as President to determine.  As mentioned, his Honour refused leave.

In refusing leave, Daubney J noted the contention on behalf of the applicant that it was believed that the relevant directions had been complied with by way of a phone call and email to QCAT advising that no further evidence would be filed.  His Honour noted that, on the applicant’s case, her husband phoned and emailed the registry on 31 May 2018, advising that the applicant had nothing further to add to the material, and it was believed that constituted compliance.  His Honour observed that there was no evidence to support the applicant’s version of events.  In that regard, his Honour noted the findings of the referring Member as to the scant nature of the evidence to support the applicant’s claimed chain of events, and that the email was not able to be produced.  In those circumstances, his Honour did not consider that the interests of justice required leave to be given.  His Honour found that on the state of the evidence, it was difficult to accept that the email was, in fact, sent and, in any event, he did not consider that it was in the interests of justice to grant leave.  His Honour found that that conclusion was supported having regard to the poor prospects of any fresh appeal application, observing that the appeal sought to be brought concerned a decision in the minor civil disputes jurisdiction for which leave is required.  Such leave usually required it to be shown that an appeal was necessary to correct substantial injustice to the applicant and that there were reasonable arguments that there was an error to be corrected.  His Honour held that on the face of both the applicant’s original application for leave to appeal and further arguments made in the course of the reopening proceeding, there was little prospect that leave to appeal would be granted.

On the matter of the merit of the appeal, his Honour observed that the original appeal contended error in the Adjudicator’s decision to order 20 per cent of rent paid as compensation, as the respondents only lost the use of 6.5 per cent of the house and because the Adjudicator failed to ask about the size and layout of the house.  The application for leave to appeal also contended that there was a breach of natural justice and a lack of procedural fairness in the manner in which the hearing was conducted.  The submissions in the reopening proceeding also alleged that the respondents perjured themselves at the original hearing.  As to those matters, his Honour found that the transcript of the proceeding revealed no basis for the allegation that the applicant was denied procedural fairness or natural justice and that the remaining complaints amounted to no more than a disagreement with the decision made by the Adjudicator and with the fact that he preferred the evidence of the respondents.  His Honour thus concluded that it was clearly not in the interests of justice to allow a fresh appeal application to be made where it appeared unlikely that leave to appeal would be granted.  To do so would put the respondents to the unnecessary cost and effort of responding to a further application and unnecessarily occupy the already limited resources of QCAT.

The application before this Court raises a number of grounds of complaint as “matters of law” and to “correct a substantial injustice”.  In fact, the complaints raise factual matters also.  The complaints are stated as:

(1) “Obstruction of natural justice by the adjudicator refusing to look at vast evidence due to time constraints”,

(2) “Respondents obtaining judgment by way of committing perjury at the original hearing”,

(3) A number of complaints concerning QCAT, in that QCAT lost evidence at the appeal process, allowed a verbal hearing and then revoked it due to non-compliance with directions, failed to forward directions given by a member, forwarded directions to an incorrect email address and refused to allow Mrs Watkins’ husband to continue representing her.

For present purposes, it is only pertinent to consider matters raised as errors made by Daubney J.  They are that his Honour:

(1) erred in characterising the registry’s communications regarding the reopening as “advice” rather than instructions;

(2) failed to read the transcript of the original hearings put in the applicant’s claims for alleged denials of natural justice; and

(3) failed to consider evidence that demonstrated the respondent’s perjured themselves at the original QCAT hearing.

His Honour’s conclusion that there had been non-compliance with the directions of the tribunal was warranted given the lack of evidence to the contrary and his Honour’s decision was correctly made.  Whether the communication from the registry is to be characterised as “advice” or “instructions” is immaterial.

In relation to the contentions and submissions going to the denial of natural justice, they are not made out.  In that regard, the applicant contended that the transcript of the hearing before the Adjudicator demonstrated that natural justice was not afforded to the applicant and that Daubney J failed to consider the evidence provided.  The arguments lack prospects of success.  His Honour’s conclusion that natural justice was not denied followed his review of the transcript.  As his Honour correctly stated, the real basis of the complaint was a disagreement with the factual determinations of the Adjudicator and that the respondent’s evidence was preferred by him.  The application which seeks leave to appeal against a refusal of leave to re-open concerns, as his Honour stated, the minor civil disputes jurisdiction of QCAT which was dealt with expeditiously by the Adjudicator.  Comprehensive reasons were given by Daubney J as to why it was not in the interests of justice that the application for leave to re-open be granted and as I mentioned that there were poor prospects of success.  Nothing before this Court causes me to come to a different conclusion.

In oral argument, the applicants also made a number of assertions that the Adjudicator had refused to hear the case which were not supported by the transcript.  The exception was that the Adjudicator properly refused to receive evidence which went solely to the credit of one of the respondents.  This did not constitute a denial of natural justice but was a proper rejection of evidence which was collateral, that is, not relevant to any issue in the case.

The applicants have failed to establish error in any of their proposed grounds of appeal that warrants the granting of leave in circumstances where, for the reasons explained by Daubney J, the application for leave has no prospects of success.  I would accordingly refuse the application for leave to appeal.

HOLMES CJ:  I agree.

MULLINS JA:  I agree.

HOLMES CJ:  The order is that the application for leave to appeal is refused.  Thank you.  We will adjourn.

Close

Editorial Notes

  • Published Case Name:

    Watkins & Anor v Goswami & Anor

  • Shortened Case Name:

    Watkins v Goswami

  • MNC:

    [2020] QCA 151

  • Court:

    QCA

  • Judge(s):

    Holmes CJ, Philippides JA, Mullins JA

  • Date:

    20 Jul 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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