LEJ v RCC[2024] QCATA 94

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   On 26 September 2022 the appellants filed an application for leave to appeal or appeal from a decision made in the minor civil disputes jurisdiction of the Tribunal on 8 August 2022. That decision related to a residential tenancy dispute between the appellants as tenants and the respondent as the agent for the owner of the rental premises.
2. [2]
   The initial claim by the appellants was for the return of the bond of $1,440.00, overpayment in rent (described as stolen rent) and $25,000.00 for compensation due to the condition of the tenancy, damage to their vehicle and other inconveniences. There were interlocutory skirmishes before the final hearing on 23 May 2022. The hearing was on 8 April 2022, but the claims made in the material filed were in somewhat of a disarray and difficult to follow. The Tribunal directed the appellants to file a schedule of claims with comments in support of each claim, which was done.^[1] The schedule did clarify the issues to some extent. The learned adjudicator commented that despite its shortcomings, she said “we’ll work through it”.^[2] The respondent also filed a response to the schedule.
3. [3]
   At the hearing both parties, particularly the appellants, were given a further opportunity to put forward their respective positions. The transcript of evidence^[3] records that the appellants gave evidence about all relevant issues and they were discussed in some detail in addition to the material filed in the proceeding. In fact the learned adjudicator commented at the end of the hearing:

I know there’s a lot, (of evidence) and I recall it from last time, and I did spend quite a bit of time catching up on this and reading up on it. I’ve made extensive notes and particularly throughout that Scott Schedule. What else would you like to say Mr ……., on top of your existing evidence and submissions before I close the hearing.^[4]

4. [4]
   After the hearing the learned adjudicator reserved her decision. She informed the parties she would deliver her reasons 8 August 2022. The reasons for her decision are comprehensive, and address in detail each of the applicants’ claims, and the respondents counterclaim. Not only did she have the evidence and submissions given at the hearing as recorded in the transcript, she also had to consider the voluminous material presented by the applicants which she described in [7]^[5] of the reasons as:

The material reliant upon by the applicants is voluminous. The hearing was adjourned at several times with directions that the applicants clarify in particularise their claims. Ultimately, they filed a schedule that seemed to do little other than paste earlier material filed into a table format, however, in the final hearing, each claim was thoroughly explored working from the schedule.^[6]

5. [5]
   In respect of that last comment, I can confirm this is indeed the case from reading the transcript. The appeal file is equally voluminous repeating much of the evidence and submission relied on in the hearing below.
6. [6]
   Consistent with the evidence given, the reasons record in some detail the history the tenancy, a consideration of the condition of the premises, including damage and wear and tear as noted on the entry condition report. It goes onto record the hostile interaction between the appellants and the respondent in respect of attempts to undertaken repairs and difficulties with arranging inspections.^[7]  Specific findings of fact were made about all these issues in dispute.
7. [7]
   There was also an issue as to whether the respondent was responsible for the conduct of the Body Corporate of the complex and/or its agent.^[8] She found, rightly, that the respondent could not be responsible for the independent actions of the Body Corporate or the onsite manager.
8. [8]
   There were issues about damage to the appellants’ vehicle and who was responsible. Findings made about this were consistent with an objective view of the evidence.
9. [9]
   The learned adjudicator considered how the tenancy came to an end. This involved the intervention of the police subsequent to the issuing of a warrant for possession.  She found the tenancy was lawfully terminated.^[9]
10. [10]
    The respondent claimed the bond as a consequence of alleged damage caused to the premises by the appellants.^[10] On this part of the claim by the respondent, save for the cost of the locks ($115.50), she essentially found in favour of the appellants, however she said:

Although the exit condition of the property was frankly, appalling, having regard to the entry condition of the property, the age of the property, clear duration of the tenancy, the issues with water ingress and pest infestation, as well as the lack of evidence to support what was claimed and recovered under insurance, one bounce there is insufficient evidence before the tribunal to support a finding that the tenants in relation to the damages which includes the cost to remove carpets and the items at [88](a)b, (b), (c), and (f) above.^[11]

11. [11]
    Then there was the dispute about the rent paid. After considering all of the evidence put forward, the “stolen” rent claim was dismissed. The learned adjudicator carefully considered the rent ledger, and made findings of fact about the rent paid:

There is, on balance, insufficient evidence before may to support a finding that there were earlier errors in the ledger, and on that basis, I accept the ledger from June 2019 as accurate. Rent was last paid on 21 April 2021 in the sum of $370.00 which paid rent to 29 July 221. There are 19 days between and including 30 April 2021 and 19 May 2021, which had $370.00 per week, proportioned to a daily rate over 19 days amounted to $1004.29. Subject to any set of, tenants owe respondents $1004.29 for outstanding rent.^[12]

12. [12]
    Once again, consistent with the transcript, all of the conclusions reached were based on findings of fact having regard to the contested evidence put before the Tribunal.
13. [13]
    I have provided a brief summary of the judgment at first instance to demonstrate that each of the claims made by the appellants were considered in a thoughtful and incisive way by the learned adjudicator, and set out in a comprehensive set of reasons.
14. [14]
    An appeal from the minor civil disputes jurisdiction of the Tribunal is not as of right. Under s 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’), an appeal may be made only if the party has obtained leave of the Appeal Tribunal. Leave to appeal (or permission) will usually only be granted where there is a reasonable argument the decision was attended by error, or that an appeal is necessary to correct the substantial injustice caused by the error.^[13] Further in Rintoul v State of Queensland & Ors [2018] QCA 20 at [10] the Court of Appeal reiterated the general principles:

The principles governing a grant of leave to appeal are well-established. In short, an applicant for leave to appeal must show:

1. the appeal is necessary to correct a substantial injustice;

2. there is a reasonable argument that there is an error to be corrected.

There must be reasonable prospects of success to warrant a grant of leave. Therefore, in deciding whether to grant leave to appeal the Court usually makes some preliminary assessment of the prospects of the proposed appeal.

15. [15]
    The usual way the Tribunal deals with the question of leave to appeal is to consider the grounds of appeal as articulated in the application, and also the submissions filed in support of those grounds. Considerable latitude is given to self-represented parties in trying to identify with some precision where they contend the error has occurred, to satisfy the well-known principles for the granting of leave. This goes beyond general complaints about the outcome of the case.
16. [16]
    However, there is an obvious limit to the latitude that can be given to an appellant. It is not for the Appeal Tribunal to sift through voluminous material, without any guidance, to try and identify the grounds of appeal, whether on law or fact.^[14] Once identified, consideration can then be given as to whether leave to appeal should be granted.
17. [17]
    That is particularly apt in this case. The grounds of appeal are generic and wide ranging. The grounds relied upon do not make any specific reference to the findings of the learned adjudicator to connect the complaint with the ground of appeal. The grounds relied upon are:

    1. that a breach of the rules of natural justice occurred in connection with the making of the decision ;
    2. that procedures that were required by law to be observed in connection with the making of the decision were not observed;
    3. that the making of the decision was an improper exercise of the power conferred by the enactment pursuant of which it was reported to be made;
    4. that the decision involved an error of law whether or not the error appears on the record of the decision;
    5. that the decision was induced or affected by fraud;
    6. that there was no evidence or other material to justify the making of the decision;
    7. that the decision was otherwise contrary to law;
    8. that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;
       1. (i)
          taking a relevant consideration into account in the exercise of power;
       1. (ii)
          failing to take a relevant consideration into account in the exercise of a power;
       1. (iii)
          an exercise for a discretionary power in accordance with their rule or policy without regard to the merits of the particular case;
       1. (iv)
          an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;
       1. (v)
          any other exercise of the power in a way that constitutes abuse of power;

    7. the ground specified in paragraphs 1(h) shall not be taken to be made out unless:
       1. (i)
          the person who made the decision was required by law to reach that decision only if a particular matter was established and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could recently be satisfied that the matter was established; or
       1. (ii)
          the person who made the decision based on the decision on the existence of a particular fact and that fact did not exist.
18. [18]
    I have set out the grounds of appeal included in the application to demonstrate they each are of a general nature and do not provide any particulars of error to support each ground. By way of example, grounds (a) and (c) do not identify how there was a denial of natural justice, or improper exercise of power. The same criticism is made against each ground. It would appear the grounds of appeal have been plucked from some precedent with no particular application to the current appeal.
19. [19]
    To give the appellants the benefit of the doubt or some latitude, it is assumed that the submission following on from the grounds of appeal, attached to the application, is supposed to address what the appellants contend are the errors in the reasons of the learned adjudicator. A careful reading of that submission, some 50 paragraphs, also demonstrates that there is really no connection between the contentions in the submission and the grounds of appeal.
20. [20]
    The appellants are putting forward the same arguments and contentions of fact that were put to the learned adjudicator at the hearing on which her judgment is based. There is particular aggrievement about the fact that the owner made a claim on the landlord’s insurance policy, insurance was paid out, and the insurer has sought recovery from the tenants. That issue is not relevant to the claims made in the proceeding, particularly concerning damage to property by the respondent, which was rejected except for the locks.
21. [21]
    Similar observations can be made about the lengthy response affidavit filed in reply to the respondents’ submission. This again is a reiteration of the case put below and, accepting it is a critique of the reasons, the submissions do not identify any error of law or fact viewed objectively, just dissatisfaction with the outcome and the findings of fact.
22. [22]
    The appellants’ contentions are a narrative of the disputed issues that were before the learned adjudicator upon which she had to make findings of fact. This appeal is similar to what Member Dr Forbes said about applications for leave to appeal in Crouch & Crouch Pty Ltd t/a Ray White Sherwood v Leadbitter^[15] [2022] QCATA 63

An application of the present kind is not an opportunity to conduct a trial de novo, or to introduce evidence or arguments that might have been offered at the trial, but were not. As the High Court has said, the trial is not a `preliminary skirmish’, after which a disappointed party may reagitate the already decided issues, and perhaps some more.

The purpose of a leave application is to see whether there is an arguable error of law in the decision below. It is not nearly enough for an applicant to express disappointment, or to cherish a subjective feeling that justice has not been done. Findings of fact and credit are the prerogative of the trial judge, that is his or her function, and an appeal court will seldom interfere. The very requirement to obtain leave is designed to curb attempts to revisit the merits, and to support the value of finality in litigation. Finality in litigation is a vital consideration particularly in tribunals such as QCAT. This is precisely the kind of dispute the legislators wish to see resolved speedily, economically, and with finality. (references omitted)

23. [23]
    I respectfully adopt Member Dr Forbes comments.
24. [24]
    Also, another example of a failure to inform the appellant body of the nature of the appeal or specific grounds (with particulars) was considered by the Court of Appeal in Royce v State of Queensland (Department of Justice and Attorney-General).^[16] Although in another jurisdiction, the comments are still relevant. There the appellant failed to follow the procedures for appealing to the Industrial Appeal Court, in circumstances where leave to appeal was necessary. Ryan J said at [33]:

While appropriate latitude is extended to persons who are self-represented, appeals cannot sensibly proceed on the basis that a ground must be either one of law or jurisdiction or not and, if “not” (if it is “something” other than an error of law or jurisdiction), that leave will routinely be granted to allow an appellant to make whatever argument he or she seeks to make. Apart from the unwieldy nature of such an approach, and the unfairness it would cause to the other side in an appeal, it would completely undermine the legislative constraints upon appeals in the industrial jurisdiction. Appellants, even those representing themselves, are bound by those constraints

25. [25]
    It is for the above reasons that the Appeal Tribunal made a specific direction on 30 August 2023 that:

The Appeal Tribunal intends to decide as a preliminary matter whether leave to appeal should be granted to LEJ and MAA, before it determines any appeal.

26. [26]
    In usual circumstances, where some grounds of appeal are articulated in the application or can be ascertained in the submissions, the Appeal Tribunal will give consideration to the substance of the appeal to determine if there has been a substantial injustice or there is a reasonable argument that there is an error to be corrected. The generic basis of the grounds of appeal here makes that task impossible, even with the submissions in support. What the appellants are really contending is that they vehemently disagree with the findings of facts in the reasons of the Tribunal below, and the Appeal Tribunal should reconsider those findings and make new findings in their favour. In other words a rehearing of the original application.
27. [27]
    The learned adjudicator was confronted with extensive contested evidence from the appellants and the respondent. She had to make findings of fact and give a decision on those contested facts. Her conclusions were open on the evidence before her, despite the appellants being dissatisfied with those conclusions. It is not for the Appeal Tribunal to substitute is own findings of fact unless, as the High Court has said in many unless they are "glaringly improbable" or "contrary to compelling inferences".^[17]  That is not the case here.
28. [28]
    The appellants have not established, in accordance with accepted principles, that there is a basis for granting leave to appeal.
29. [29]
    Leave to appeal is refused.