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Gormlie v Kickbusch[2019] QCATA 135

Gormlie v Kickbusch[2019] QCATA 135

 

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

 

CITATION:

Gormlie v Kickbusch & Anor [2019] QCATA 135

PARTIES:

HELEN M GORMLIE

(appellant)

 

v

 

GAVIN WILLIAM KICKBUSCH

and

VERONICA KICKBUSCH

(respondents)

APPLICATION NO/S:

APL045-19

ORIGINATING

APPLICATION NO/S:

MCDT 1645/18

MATTER TYPE:

Appeals

DELIVERED ON:

11 September 2019

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 DISCRETION OF TRIBUNAL BELOW – PARTICULAR CASES – CONTROL OVER PROCEEDINGS – OTHER CASES – where Tribunal has mandate to deal with matters quickly – where minor civil dispute seeking compensation of less than $10,000.00 from a residential tenancy with no complex legal issues or complex factual matrix – where four weeks sufficient time for party to seek legal advice and prepare their case – where appellant afforded procedural fairness in context of Tribunal’s minor civil disputes jurisdiction

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – IN GENERAL – where applicant applied for leave to appeal – where applicant sought to introduce evidence not adduced at first instance – whether evidence should be admitted – whether evidence capable of supporting findings – whether leave to appeal should be granted 

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 143

Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39

Cachia v Grech [2009] NSWCA 232

Chambers v Jobling (1986) 7 NSWLR 1

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

Dearman v Dearman (1908) 7 CLR 549

Fox v Percy (2003) 214 CLR 118

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

Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611

Piric & Anor v Claudia Tillier Holdings Pty Ltd [2012] QCATA 152

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

Slater v Wilkes [2012] QCATA 12

Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe [2013] QCATA 212

REPRESENTATION:

 

Applicant:

Self-represented

Respondents:

Self-represented

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

What is this appeal about?

  1. [1]
    An Adjudicator ordered Helen Gormlie pay to Gavin and Veronica Kickbusch the sum of $3,667.80 for compensation from her tenancy. 
  2. [2]
    Ms Gormlie wants to appeal that decision.
  3. [3]
    Because this is an appeal from a minor civil dispute, leave is required.[1]
  4. [4]
    In determining whether to grant leave, the Tribunal will consider established principles including:
    1. (a)
      whether there is a reasonably arguable case of error in the primary decision;[2]
    2. (b)
      whether there is a reasonable prospect that the appellant will obtain substantive relief;[3]
    3. (c)
      whether leave is needed to correct a substantial injustice caused by some error;[4] and
    4. (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]
  5. [5]
    I will address the grounds of appeal below.

Did the Tribunal afford Ms Gormlie procedural fairness before the hearing?

  1. [6]
    Ms Gormlie submitted that she was not given adequate time to prepare for the hearing. Although her submissions do not expressly state it, the inference is that she was therefore denied procedural fairness.
  2. [7]
    Mr and Mrs Kickbusch filed their original Application on 17 December 2018. The Registry sent the Application and Notice of Hearing on 20 December 2018,[6] which Ms Gormlie says she received on 21 December 2018.[7]  The Notice of Hearing advised that the hearing was scheduled for 11am on 23 January 2019.
  3. [8]
    Ms Gormlie therefore had just over four weeks to prepare for the hearing or apply for an adjournment. Despite this, she did not apply for an adjournment until 21 January 2019, two days before the hearing. A different Adjudicator refused the adjournment.
  4. [9]
    The Tribunal’s statutory mandate to conduct proceedings in an informal way that minimises costs to parties and is as quick as is consistent with achieving justice,[8] is at its most acute in the busy and demanding minor civil disputes jurisdiction, where thousands of applications are processed and determined each year.[9]
  5. [10]
    The minor civil disputes jurisdiction requires the Tribunal to deal with matters fairly, quickly and economically.[10] This means that parties may not be aware of all of the material or every argument and submission relied upon by their opponent before the hearing. In any event, Ms Gormlie received all the evidence used at the hearing, some four weeks before the hearing.
  6. [11]
    This was a minor civil dispute seeking compensation of less than $10,000.00 from a residential tenancy. The claim had no complex legal issues or any complex factual matrix. Four weeks was sufficient time for Ms Gormlie to seek legal advice or other assistance and prepare her case.
  7. [12]
    Ms Gormlie was afforded procedural fairness within the context of the Tribunal’s minor civil disputes jurisdiction.
  8. [13]
    This ground of appeal is dismissed.

Can Ms Gormlie rely upon new evidence to support her appeal?

  1. [14]
    Ms Gormlie attached to her submissions what she said was a ‘Domain.com search’ showing Mr and Mrs Kickbusch bought their home in December 2006. This is fresh evidence.
  2. [15]
    The Appeal 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 fresh evidence must satisfy three tests:
    1. (a)
      Could the parties have obtained the evidence with reasonable diligence for use at the trial?
    2. (b)
      If allowed, would the evidence probably have an important impact on the result of the case?
    3. (c)
      Is the evidence credible?[11]
  3. [16]
    Ms Gormlie could have conducted this search before the hearing for tendering at the hearing. She has not explained why she did not do this.
  4. [17]
    Moreover, it would not have an important impact on the result of the case. It is not attached to any sworn statement of evidence nor does it have any reference to ‘Domain.com’. It does not prove the age of the carpet as submitted by Ms Gormlie. It does not even prove when Mr and Mrs Kickbusch bought their home, as a Land Title search would.
  5. [18]
    An application for leave to appeal is not, and should not be an attempt to reargue a party’s case at the initial hearing.[12] This evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the Tribunal. 

Was the evidence capable of supporting the Tribunal’s findings?

  1. [19]
    Ms Gormlie’s submissions dispute the learned Adjudicators findings about various items damage and who was responsible. These are findings of fact. The Appeal Tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[13] An appellate tribunal may only interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[14] A decision cannot properly be called erroneous, simply because the learned Adjudicator preferred one conclusion to another possible conclusion.[15]
  2. [20]
    Having heard the evidence of both Ms Gormlie and Mrs Kickbusch, the learned Adjudicator was in the best position to assess credibility. It is not an error to prefer one version of facts to another.[16]
  3. [21]
    The learned Adjudicator made findings about the condition of the property at the start and end of the tenancy and awarded damages based on the oral evidence of the parties (including admissions by Ms Gormlie),[17] as supported by documentary evidence including Entry and Exit Reports, photographs, invoice and quotes.[18]
  4. [22]
    Nothing in the material or the transcript persuades the Appeal Tribunal that the findings were not open to the Tribunal. The Tribunal’s findings about the items of damage and the amounts payable were open on the evidence.
  5. [23]
    The learned Adjudicator’s decision was therefore appropriate and I can find no reason to come to a different view.

Should the Appeal Tribunal grant leave to appeal?

  1. [24]
    Leave will not be granted where a party simply desires to re-argue the case on existing or additional evidence.[19] 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.[20]
  2. [25]
    Having read the transcript and considered the evidence, I find nothing to indicate that the learned Adjudicator acted on a wrong principle, or made mistakes of fact affecting his decision, or was influenced by irrelevant matters. The evidence was capable of supporting the Tribunal’s conclusions.
  3. [26]
    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. Leave to appeal should be refused.

What is the appropriate Order?

  1. [27]
    The appropriate Order is:
    1. Leave to appeal refused.

Footnotes

[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 143(3).

[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.

[6]  Email Southport Magistrates Court dated December 2018.

[7]  Application for leave to appeal or appeal filed 18 February 2019, Part C.

[8]  QCAT Act, s 4(c).

[9] Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe [2013] QCATA 212, [46] (Wilson J).

[10] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4.

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

[12] Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39.

[13] Dearman v Dearman (1908) 7 CLR 549, 561; Fox v Percy (2003) 214 CLR 118, 125-126.

[14] Chambers v Jobling (1986) 7 NSWLR 1, 10. 

[15] Slater v Wilkes [2012] QCATA 12, [6], citing Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611.

[16] Slater v Wilkes [2012] QCATA 12, [6].

[17]  Transcript, page 1-7, lines 11 to 28.

[18]  Transcript, page 1-33, lines 35 to 47; page 1-34 to page 1-35, line 31.

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

[20]  Ibid.

Close

Editorial Notes

  • Published Case Name:

    Helen M Gormlie v Gavin William Kickbusch and Veronica Kickbusch

  • Shortened Case Name:

    Gormlie v Kickbusch

  • MNC:

    [2019] QCATA 135

  • Court:

    QCATA

  • Judge(s):

    Member Hughes

  • Date:

    11 Sep 2019

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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