Underwood v Queensland Department of Communities

SUPREME COURT OF QUEENSLAND

CITATION: Underwood v Queensland Department of Communities (State of Queensland*)* [2012] QCA 158

PARTIES: HELEN UNDERWOOD (applicant) v QUEENSLAND DEPARTMENT OF COMMUNITIES (STATE OF QUEENSLAND**)** (respondent)

FILE NO/S: Appeal No 9777 of 2011 / QCAT No 238 of 2011

DIVISION: Court of Appeal

PROCEEDING: Application for Leave Queensland Civil and Administrative Tribunal Act

ORIGINATING COURT: Queensland Civil and Administrative Tribunal at Brisbane

DELIVERED ON: 15 June 2012

DELIVERED AT: Brisbane

HEARING DATE: 29 March 2012

JUDGES: Muir JA and P Lyons and Dalton JJ / Separate reasons for judgment of each member of the Court, Muir JA and Dalton J concurring as to the order made, P Lyons J dissenting

ORDER: Application for leave to appeal is refused with costs.

CATCHWORDS: LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – OBLIGATIONS, PROHIBITED MATTERS AND PROTECTION FOR LESSEES – RENT – where the applicant was the lessee of premises in an apartment block – where the respondent was the lessor – where the applicant made various complaints regarding the premises – where the property was damaged by flooding – where the applicant applied to the Queensland Civil and Administrative Tribunal (“QCAT”) for orders that her rent be wholly waived or refunded with a related proceeding reopened – where these applications were dismissed – where the applicant applied for leave to appeal the decision of QCAT to the Appeal Tribunal of QCAT – where leave was refused – where the applicant applied to this Court for leave to appeal against the decision of the Appeal Tribunal – whether the Appeal Tribunal erred in holding there was nothing in the material as to the premises being unfit under s 94 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (“the Act”) – whether the Appeal Tribunal erred in its interpretation and application of s 94 of the Act – whether the Appeal Tribunal exercised proper discretion under s 94(4) of the Act – whether the Appeal Tribunal erred by not allowing the admission of ‘fresh evidence’ / Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 12, s 13, s 28, s 29, s 136, s 137, s 138, s 139, s 141, s 142, s 143, s 147, s 150 / Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 94 / ACI Operations Pty Ltd v Bawden [2002] QCA 286, considered / Arnold Electrical & Data Installations P/L v Logan Area Group Apprenticeship/Traineeship Scheme Ltd [2008] QCA 100, considered / Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, applied / In re the Will of F B Gilbert (dec’d) (1946) 46 SR (NSW) 318, cited / Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40, applied / Smith v Ash [2011] 2 Qd R 175; [2010] QCA 112, considered

COUNSEL: J Wagner for the applicant / D Keane for the respondent

SOLICITORS: Cranston McEachern for the applicant / Crown Law for the respondent

[1] MUIR JA: The applicant applies for leave to appeal against a decision of the Appeal Tribunal of the Queensland Civil and Administrative Tribunal (QCAT) refusing the applicant leave to appeal against a decision of a member of QCAT on 3 May 2011 in matters MCDT 0672/11 and MCDT 2651/10 dismissing the applicant’s applications. The application in MCDT 0672/11 was for an order that the rent paid or payable to the respondent from 16 January 2009 to the date of hearing in respect of the premises in an apartment block leased by the respondent to the applicant be wholly refunded or waived. The application in MCDT 2651/10 was for the reopening of a proceeding in which the applicant sought an order that the respondent pay the applicant’s costs of moving prior to 3 May 2011 from her premises to other premises provided to her by the respondent.

[2] An appeal to the Appeal Tribunal in the circumstances under consideration was only by leave of the Appeal Tribunal.¹ An appeal from the Appeal Tribunal to this Court against the decision of the Appeal Tribunal refusing the application for leave to appeal lies only by leave of this Court and is only on questions of law.²

[3] There were three grounds of appeal in the applicant’s proposed notice of appeal and a fourth ground was advanced in the applicant’s amended outline of argument. It is convenient to address each of the grounds in turn.

Ground 1 – The Appeal Tribunal erred in law in holding that there was nothing in the material as to the premises being unfit in terms of s 94 of the Residential Tenancies and Rooming Accommodation Act 2008 and that the Tribunal member… “did not accept that premises were unfit to live in or that the amenity of the unit decreased substantially during the period of the tenancy”.

[4] The Appeal Tribunal’s reasons relevantly state:

“The learned Member did not expressly refer to the terms of s 94 [of the Residential Tenancies and Rooming Accommodation Act 2008] in his reasons for decision but he made the point that the question of abatement was a matter for his discretion. The learned Member did not accept that the premises were unfit to live in or that the amenity of the unit decreased substantially during the period of the tenancy. I have considered the documents filed in the tribunal and read the transcript carefully. There is nothing in the material that persuades me that the learned Member should have taken a different view.”

The applicant’s submissions

[5] The applicant’s submissions may be summarised as follows. The Tribunal acknowledged, or arguably accepted, in the proceedings on 3 May 2011, in the context of discussion of the application for rent reduction, that the applicant was “perfectly entitled to the peace and enjoyment of [her] property”. Although he did not specifically address the question of the unfitness or otherwise of the property or the decrease in its amenity during the tenancy, he appeared to accept that the premises were unfit.

[6] The Tribunal should have concluded that the premises were unfit or that the amenity of the premises had decreased substantially during the term of the tenancy and found for the applicant. The Tribunal, however, refused the application on discretionary grounds which did not relate to unfitness of the premises and the discretion under s 94(4) was thus not properly exercised.

[7] The Appeal Tribunal erred in holding that there was nothing in the material as to the premises being unfit in terms of s 94 of the Act and in holding that the Tribunal on 3 May 2011 “did not accept that the premises were unfit to live in or that the amenity of the unit decreased substantially during the period of the tenancy”.

Consideration

[8] The respondent submitted that the Appeal Tribunal’s conclusion that “The learned Member did not accept that the premises were unfit to live in or that the amenity of the unit decreased substantially during the period of the tenancy” was consistent with the Tribunal’s finding:

“… you are perfectly entitled to the peace and enjoyment of your property, but [interrupted] in the circumstances of this case make it that I’m not satisfied your application has been met on the balance of probabilities…”

[9] In the course of the parties’ submissions, the Tribunal noted that “Galaxy Plumbing identified no problems”. Galaxy Plumbing had investigated the plumbing problems complained of by the applicant on behalf of the respondent and, in one report discussed later, had identified sewerage and/or storm water problems which appeared to affect the premises. It is not possible to determine from the appeal record what document or documents the Tribunal member had in mind when making this observation.

[10] The Tribunal also heard submissions from the representative of the respondent pointing to: the late request for a rent abatement; the denial by the applicant of access to the property for the purposes of investigation and the making of necessary repairs; a letter from the applicant to the respondent of 23 December 2010 stating that repair to the carpets in the property was not urgent; the fact that rent paid by the applicant was heavily subsidised (her rental was $55 per week as opposed to the market rent of $265–$275 per week); the fact that the property to which the applicant had been moved was the fourth social housing property occupied by the applicant; and the making and rejection of offers of relocation. It was apparent from this material, and it was no doubt appreciated by the Tribunal, that the premises had suffered some damage for which the respondent accepted liability. The respondent’s representative accepted that there had been “localised flooding that impacted” on the premises. The Tribunal also had before it extensive written submissions of the applicant and an attachment which documented damages to the premises as a result of flooding.

[11] The Appeal Tribunal, like the Tribunal, did not state that there was no evidence of damage to the unit. The Appeal Tribunal’s finding was to the effect that the Tribunal had found that the requirements of sub-sections (1) and (2) of s 94 had not been met. I am unable to share that construction of the Tribunal’s reasons but, as emerges from subsequent discussion, that error on the Tribunal’s part does not warrant the grant of leave to appeal.

[12] The Tribunal’s reasons for exercising its discretion under s 94(3) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (“the Act”) are principally to be found in the following statements:

“[The Member]:But that’s not denying though, as I said, that you are perfectly entitled to the peace and enjoyment of your property, but…

-- in the circumstances of this case make it that I’m not satisfied your application has been met on the balance of probabilities, particularly where the Department has made a number of efforts to, well, rectify…

-- by issuing notices of which you indicated were deemed invalid…

-- and not proper….

But, nonetheless, they did try and make steps to address that issue. …

So there is that issue I’ve found about attempting to rectify, and, you know - well, it is not relevant for me as to whether or not the forms were validly issued. The point is that they - the substance of the matter is that they did try and rectify, and they did make alternative offers of accommodation for you …

Having said that, having regard as well to the amount of the rent that is payable, on this particular occasion I’m not minded to order any rental reduction, having regard to those discretionary factors that I’ve taken on board. And I do acknowledge that, yes, you were entitled to peace and enjoyment.”

[13] The interruptions in the above quotation were the result of the applicant’s interjections. They have not been reproduced as they are irrelevant for present purposes.

[14] A little later in the reasons, the Tribunal member acknowledges the applicant’s “right to peace and enjoyment”, but again, in effect, reaffirmed his decision to refuse the application on discretionary grounds.

[15] The main thrust of the Appeal Tribunal’s approach was not to concentrate on the enlivening of the right to relief under s 94. It was to assess whether, even if the applicant came within s 94 of the Act, the denial of relief would have been likely on discretionary grounds.

[16] The applicant also contended, in substance, that the Appeal Tribunal erred in finding that there was no evidence enlivening the exercise of a discretion under s 94. The Appeal Tribunal made no such finding. The Appeal Tribunal, in paragraph 17 of its reasons, was not addressing the question whether there existed evidence upon which a conclusion different to that reached by the Tribunal may have been made. It was stating, in effect, that it was not persuaded that the Tribunal’s conclusion was wrong.

[17] The Appeal Tribunal, in paragraphs 14 and 15 of its reasons, correctly identified the principles relevant to the interference by an appellate court with factual findings at first instance. The cautious approach of the Appeal Tribunal to interfering with the member’s findings was further justified by the fact that the Tribunal was not bound by the rules of evidence and was entitled to inform itself as it saw fit.

[18] The applicant’s arguments face another difficulty. It is that the Tribunal refused the application on discretionary grounds. The reasons given by the Tribunal were relevant and cogent. Even if the Appeal Tribunal is found to have erred, it would not be appropriate to give leave to appeal unless the applicant demonstrates that there are reasonable prospects on appeal of it being found that the exercise of the Tribunal’s discretion miscarried.

Grounds 2 and 3

Ground 2 – Error of law in the interpretation and application of s 94 of the Residential Tenancies and Rooming Accommodation Act 2008

Ground 3 – Error of law with respect to the proper exercise of the discretion under s 94(4) of the said Act to make an order for rent decrease

The applicant’s argument

[19] It was argued on behalf of the applicant that the Appeal Tribunal erred in not identifying that the Tribunal failed to properly address “the specific terms and requirements of s 94”. According to the applicant, the Tribunal erred in law by purporting to exercise a discretion against granting rent relief to the applicant without first making findings as to the application of s 94(1) and/or s 94(2) which included the identification of the particular parts of those provisions which the Tribunal held to be applicable. It was also argued that the Tribunal erred in taking into account the applicant’s concessional rent in exercising its discretion. Both the Tribunal and the Appeal Tribunal, it was submitted, erred in not considering that to succeed in obtaining rent relief, the applicant need not show that “the premises were unfit to live in or that the amenity of the unit decreased substantially during the period of the tenancy”, but merely that the premises were “partly unfit to live in”.

Consideration

[20] The Appeal Tribunal, as has been pointed out already, made it plain that the Tribunal, as was the case, treated the question whether an abatement should be granted under s 94 as a discretionary matter. The Appeal Tribunal made no express findings as to whether the premises were partly unfit to live in. However, as I have remarked previously, the Appeal Tribunal mistakenly regarded the Tribunal as having found against the application of either or both of sub-sections (1) and (2) of section 94. Ultimately, however, for the reasons given in relation to ground 4, this error does not entitle the applicant to succeed on her application. I should mention, when dealing with the Tribunal’s findings, that I do not accept that because the Appeal Tribunal failed to mention partial unfitness of the premises in the second sentence of paragraph 17 of its reasons that it did not turn its mind to the question of partial fitness. Paragraph 16 of the reasons makes express reference to the availability of rent relief in respect of premises that “are partly unfit to live in”.

[21] The applicant cited no authority for the proposition that the Tribunal could not exercise the discretion vested in it by s 94(3) without making findings which identified the manner in which s 94(1) and/or s 94(2) applied. As the argument progressed, it emerged that the alleged error of the Tribunal was a failure to give adequate reasons.

[22] The Tribunal’s reasons, with respect, were not as clear as they might have been. Some of their lack of clarity probably resulted from the applicant’s constant interruptions but, whatever the cause, I am of the view that the reasons were adequate. They conveyed to the applicant that the application for rent abatement failed, notwithstanding the application of s 94(1) and/or s 94(2), because the Tribunal did not consider a rent reduction appropriate in view of:

● the respondent’s efforts to rectify problems in the unit which were thwarted by the applicant’s pedantic insistence on due notice of intended access;

● the respondent’s offers of alternative accommodation;

● the fact that the application was for relief from payment of all the rent for the whole of the duration of the tenancy; and

● the rent concession enjoyed by the applicant.

[23] While it would have been preferable, and more conventional, for the Tribunal to identify the provisions of s 94(1) and s 94(2) which applied and to make findings as to the extent of partial unfitness for occupation and/or decrease in amenity, as the case may be, it was not critical that this be done, if as was the case, the Tribunal concluded that discretionary considerations overwhelmed any possible entitlement to an abatement of rent.

[24] Sub-sections (3) and (4) of s 94 of the Act potentially give rise to awkward questions of construction. On a literal construction of s 94(3) if circumstances within sub-sections (1) or (2) arise in respect of premises which are tenanted, the rent payable under the tenancy agreement “decreases accordingly” without the need for any order by a tribunal. Presumably, the extent of the decrease would relate to the extent to which the premises were unable to be enjoyed by the tenant. If premises are “destroyed” or made “completely unfit to live in” or are no longer able to be “used lawfully as a residence” or are “appropriated or acquired compulsorily” the ascertainment of the decrease in rent should be straightforward: in the great majority of cases, the rent would decrease to nothing. Section 94(4) appears to recognise this by confining the right to apply for a rent reduction where s 94(1) applies to circumstances in which premises are “partly unfit to live in”.

[25] What is to happen in other circumstances is by no means obvious. For example, if the services of a building manager were to be provided to the tenant under the tenancy agreement but ceased to be provided, by what extent should “the rent payable under the agreement decrease”? What decrease should there be, for example, if the “amenity… of the premises decreases substantially” through inattention to the gardens, grounds and stairwells of the unit complex? How can “the rent payable under the agreement decrease accordingly” unless a determination is made of the amount of the decrease?

[26] Any such decrease will not be capable of mathematical calculation or determination by application of a formula. The amount of the reduction will be arrived at by judgments upon questions in respect of which different persons, acting reasonably, will be capable of reaching different conclusions. These matters suggest that s 94 was not intended to provide for any automatic decrease in rent where premises were partly unfit to live in or where one or more of the matters in sub-sections (2) and (3) applies. Also supporting that conclusion is the fact that, normally, there will be no certainty as to the application of s 94(2)(b) to particular facts until a tribunal has held that there has been a relevant substantial decease. The question whether premises are “completely or partly unfit to live in” may also give rise to disputed questions of fact.

[27] The applicant argued that the Tribunal, in making an order under sub-section (3), could determine quantum only by deciding the extent to which the premises had been rendered completely or partly unfit to live in or the extent to which there had been a substantial decreased in amenity. It was submitted that the only criterion for calculation of rent reduction in sub-section (3) is provided by the words “The rent payable under the agreement decreases accordingly” and that, consequently, the fact that the applicant was paying rent which was about one fifth of the market rent was irrelevant.

[28] I doubt the validity of these propositions. In my opinion, the making of an order under s 94 is discretionary. The wording of sub-section (4) is permissive: “A tribunal may make an order”. It is also implicit in sub-section (3) that an order for a decrease in the rent may not be made.

[29] It is noteworthy also that sub-section (3) refers to “an order for a decrease in the rent” rather than “an order for the decrease in the rent”.

[30] If it is the case that a tribunal has a discretion whether to order a reduction of rent under s 94, the better view is that the tribunal may refrain from making an order reducing the rent if it would be unjust to make such an order. For example, it may be unjust for an order to be made where an application has been made late or a lessor has been prevented by the conduct of the tenant from ascertaining facts and circumstances relevant to the determination of whether there should be a decrease in the rent.

[31] The tenant may have accepted a tenancy at a lower than market rent on the understanding that the lessor would be unable for a variety of reasons to prevent the amenity of the premises from deteriorating substantially. Why would it be appropriate or just in those circumstances for an automatic rental adjustment to be made? Also, consider the case of a tenant paying a rent equal to approximately one fifth of the market rent because of the tenant’s economic circumstances. If there are circumstances within s 94(1) or s 94(2) which would have warranted a 50 per cent reduction in rent had the premises been let at a market rental, would it be reasonable or just for the rent to be reduced to one tenth of the market rent? Other examples may be given of circumstances in which it would be unreasonable or unjust for rent to be reduced solely by reference to the extent to which premises have become partly unfit to live in or to circumstances falling within s 94(2).

[32] Whether a tribunal in exercising a discretion whether to make an order under s 94(3) may take into account the fact that an applicant tenant was paying a very low concessional rent is to be determined by “implication from the subject-matter, scope and purpose of the Act”.³ The main object of s 94 is to provide tenants with a right to apply to a tribunal for a rent reduction in the event that there is an event or circumstances falling within s 94(2) or if the premises become partly unfit to live in during the term of the tenancy. In other circumstances within s 94(1), provision is made for automatic variation of the obligation to pay rent without the need for an order.

[33] Section 94 offers no guidance on the factors a court must take into account in determining the amount of a rent reduction except where, as is the case with some of the circumstances within sub-section (1), the amount of the reduction may be apparent from the nature of the circumstance involved. As the above discussion attempts to show, in circumstances other than those within s 94(1), apart from partial unfitness to live in, the amount of and whether any reduction is just may depend on a variety of circumstances which the legislature could not have hoped to have anticipated. Consequently, I am unable to discern anything in s 94, or any other provision of the Act, which would have prevented the Tribunal, in the circumstances of this case, from having regard to the quantum of the rent payable by the applicant in deciding whether an order should be made under s 94(3).

Ground 4 – The Appeal Tribunal erred in not allowing the admission of fresh evidence or new evidence which was not in the possession of, or made available to, the applicant at the time of the QCAT hearing on 3 May 2011

[34] The “fresh evidence” on which the applicant seeks to rely consisted of nine documents annexed to the applicant’s written submissions to the Appeal Tribunal of 1 September 2011. The documents were:

● an exchange of emails between Mr Schonfisch, a client service manager of the Department of Communities, and Ms Glennie, of Q-Build, in between 12 and 15 October 2010 concerning carpet cleaning, possible carpet replacement and a plumbing inspection of the applicant’s premises;

● an exchange of emails, mainly on 18 October 2010, between Ms Glennie and a representative of Moisture Control Services advising inter alia that 15 square metres of contaminated carpet and underlay had been uplifted and the affected area then “pressure washed (cleaned, sanitised and deodorised)” on 16 October 2010;

● an email from Mr Schonfisch to Ms Glennie of 15 December 2010 asking what was happening about the replacement carpet for the applicant’s unit;

● an email of 23 December 2010 from Mr Bock of Department of Communities to Mr Price of Q-Build noting that the unit was flooded on 11 October 2010 “due to persistent heavy rains”, that floor coverings were removed but replacement “still remain[s] outstanding”. The email requested that the floor coverings be replaced ASAP. It noted that the tenant was “very particular and insists on being given correct formal notice as per the Residential Tenancies and Rooming Accommodation Act 2008”. There were two other emails of little consequence;

● an email of 16 March 2011 from Mr Stewart to Mr Walker requesting that Mr Walker “organise with contract floors to install the floor coverings” at the applicant’s address as soon as possible;

● an email of 23 December 2010 from Mr Stewart to Mr Price stating “…I contacted the tenant just to exhaust all avenues to get this work done and her reply in no uncertain terms is that there is other works she wants done that are more important than her floor coverings”;

● an email of 21 March 2011 from Ms Perry of Q-Build to Mr Stewart of Q-Build attaching a request for replacement of the carpet;

● a Q-Build job card dated 19 October 2010 specifying the work performed as “Remove contaminated carpet after sewerage. Clean. Sanitised. Dried affected area”;

● a report of Galaxy Plumbing (Qld) Pty Ltd dated 6 January 2011 advising that a representative of Galaxy attended the premises on 11 October 2010 and discovered that “the Council chamber was overflowing external to the property and water was backing up the line flooding the sewerage system within the property”. Galaxy advised that the maintenance manager attended the property on 29 December 2010 and observed water pouring into the Council chamber from two upstream outlets which was “slightly muddy with no effluent present” and that “the sewer main was coping”. It was noted that a further inspection on 6 January 2011 revealed that the same situation was occurring as had occurred on 11 October and 26 December, “the chamber lid on the Council chamber had lifted and water was pouring down the street”.

[35] It is not clear from the Galaxy report whether it is being said that there was an internal problem within the unit on 6 January 2011.

[36] It was submitted that these documents were of particular significance to the question of whether the subject premises were unfit to live in and/or whether there was a substantial decrease in the amenity in terms of s 94 of the Act. The applicant referred to paragraph 11 of the Appeal Tribunal’s reasons in which it was noted that the applicant had provided no explanation as to why the subject material was not available earlier and in which it was said that an application for leave to appeal should not be used as an attempt to shore up deficiencies in a party’s case at first instance.

[37] It was submitted that the Appeal Tribunal erred in:

(a) not ascertaining whether the evidence “…was not reasonably available at the time the proceeding was heard and determined” and/or whether the evidence “could not have been obtained with reasonable diligence for use at the trial”;

(b) not inviting oral submissions from the lay applicant to specify the evidence which was actually “new evidence” (strictly speaking fresh evidence);

(c) deciding to determine the appeal “on the papers”;

(d) failing to have regard to s 28 of the QCAT Act in deciding whether the Appeal Tribunal should be bound by any rules as to new evidence or fresh evidence and/or in ensuring that it had proper regard to all material placed before it; and

(e) incorrectly describing the further evidence as “new evidence” when it was, strictly speaking, “fresh evidence” in the sense of having been in existence prior to the hearing at first instance. The further evidence could not have been obtained by the applicant with reasonable diligence.

Consideration

[38] The Appeal Tribunal, in deciding whether to receive the applicant’s further evidence, applied part of the definition of “reopening ground” in s 137 of the QCAT Act. Under that section and s 138 a party is given a right to apply to QCAT for a proceeding to be reopened if a “reopening ground exists”. A reopening ground relevantly exists where:

“…the party would suffer a substantial injustice if the proceeding was not reopened because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard and decided.”

[39] Under s 139, where a reopening ground exists and where that ground could be “effectively or conveniently dealt with by reopening the proceeding” the Tribunal may grant the application to reopen. Sections 136 to 141 inclusive, however, do not apply to appeals.⁴ Section 143 of the QCAT Act which provides for applications for leave to appeal is silent as to the Appeal Tribunal’s ability to receive additional evidence. Section 147, which relates to appeals to the Appeal Tribunal on a question of fact or on a question of mixed fact and law, provides that “The appeal must be decided by way of rehearing, with or without the hearing of additional evidence as decided by the appeal tribunal”. The test contained in the definition “reopening ground” in s 137, as a general proposition, is a useful enough guide for the Appeal Tribunal to apply on application for leave, but it would not be correct in law for the Tribunal to fetter its discretion by rigidly applying a test which expressly applies to proceedings at first instance but not to appeals.

[40] The Tribunal was right to take a cautious approach to the acceptance of further evidence. The application before the Tribunal was a “minor civil dispute”.⁵ Under s 13 of the QCAT Act, QCAT is required in respect of minor civil disputes to make orders that it considers fair and equitable and may, if it considers it appropriate, “make an order dismissing the application”. The Tribunal is required by s 4 of the QCAT Act to ensure that proceedings are conducted in an informal way that minimises costs and “is as quick as is consistent with achieving justice”.

[41] The Tribunal is not bound by the rules of evidence “or any practices or procedures applying to courts of record, other than to the extent the tribunal adopts the rules, practices and procedures”.⁶ The Tribunal “may inform itself in any way it considers appropriate”.⁷ The Tribunal is also required to “act with as little formality and technicality and with as much speed as the requirements of [the] Act… and a proper consideration of the matters before the tribunal permit”.⁸

[42] The above objectives are all in aid of the objectives stated in s 3 of the QCAT Act which, in their application to QCAT’s minor civil dispute jurisdiction, may be stated as the delivery by QCAT of justice speedily, cheaply and informally. Having regard to these considerations, it is difficult to make out a case that the Appeal Tribunal erred in dealing with the application for leave to appeal on the papers and by not inviting oral submissions to specify the evidence which “was actually said to be new evidence”. It appears from its reasons that the Appeal Tribunal considered the further material. Having done so, it was open to it to conclude, for the reasons given below, that reception of the material would not have an important influence on the outcome of the case.

[43] I do not accept, as the applicant’s submissions assert, that the Appeal Tribunal did not have regard to s 28 of the QCAT Act. The Appeal Tribunal was plainly entitled to have regard to the fact that there had already been a hearing on the merits at which the applicant should have presented the evidence on which she intended to rely. The submission also ignores the discretion given to the Appeal Tribunal under s 147 of the QCAT Act in relation to “additional evidence”.

[44] The applicant may not have had a copy of the emails, the Q-Build Card and the Galaxy report at the time of the Tribunal hearing, but these documents addressed matters, the substance of which was well within the applicant’s knowledge and either had been put before the Tribunal in a general way or could have been put in evidence before the Tribunal.

[45] In her material before the Tribunal, the applicant noted that she had been a tenant in the subject property since 16 January 2009. She claimed that there had been flooding on four days in October 2010, two days in December 2010 and four days in January 2011 and that the flooding “with effluent affected the bathroom, backyard, kitchen, hall and both bedrooms”. She also complained of smells from external sewers which, seemingly, had persisted with varying degrees of intensity since 2009. Her numerous complaints occupied some 13 pages of an attachment to one of her applications to the Tribunal. Even on the applicant’s own account, the more significant problems of which she complained did not arise until about 20 months after the commencement of her tenancy. Although the applicant had a finding in her favour that, in effect, s 94(1) and/or s 94(2) applied, the evidence as to the extent of the adverse affectation was weak. This deficiency was not remedied materially by the further material.

[46] As appears from evidence which the applicant sought to put before the Appeal Tribunal, the applicant had photographed the interior of her unit and parts of the common property in order to show areas affected and the extent of affectation. The emails relate to damage to the premises as a result of flooding on 11 October 2010. However, although they provide evidence of damage, they support the reasons of the Tribunal in exercising the discretion not to order an abatement of rent. The damage was promptly remedied with the exception of 15 square metres of carpet, which was not immediately replaced. The inference was open that the delay in replacing the carpet was caused, or contributed to, by the applicant’s failure to give reasonable access to the premises.

[47] The Galaxy report revealed the existence of a sewerage problem arising from flooding which caused a problem “within the property”. As I have mentioned, it was apparent to the Tribunal from the respondent’s submissions that the interior of the premises had been damaged. Also, the Tribunal would have appreciated that there was some adverse affectation of the premises from other documents before it.

[48] To pick up a test commonly applied in relation to the admission of further evidence on appeals,⁹ the further material, although undoubtedly credible, was unlikely to have had “an important influence on the result of the case”. The applicant was seeking an order that she pay no rent for the whole of the term of her tenancy, a period of in excess of two years, not a decrease for the relatively short period over which the further material showed affectation.

[49] Accordingly, ground 4 was not made out.

Conclusion

[50] I would order that the application for leave to appeal be refused with costs. In order for questions of construction of the Act to be appropriately raised and resolved by reference to decided facts, it would be necessary for leave to appeal to be granted, the appeal to be decided in the applicant’s favour and for a further hearing to take place before the Tribunal. There would be the possibility of a further application for leave to appeal to the Appeal Tribunal and an appeal against a decision of the Appeal Tribunal to this Court.

[51] To repeat the oft repeated words of Sir Frederick Jordan CJ in In re the Will of F B Gilbert (dec’d),¹⁰ if a tight rein is not kept on litigation of this kind “…cases could be delayed interminably, and costs heaped up indefinitely”.

[52] The amount claimed is less than $7,000. If the applicant succeeded in establishing her claim, it is reasonable to conclude that the amount ordered to be paid to her would be far less than the amount claimed. Putting aside the fact that her existing rent is around one fifth of the market rent (according to the respondent), the applicant did live in the premises for in excess of two years and thus had the “enjoyment” of it.

[53] The applicant’s claim was considered on its merits by the Tribunal. An application for leave to appeal from the Tribunal’s decision was considered and rejected. These are considerations which are traditionally regarded as weighing against a grant of leave to appeal.¹¹

[54] This is not a case in which it is arguable that leave is necessary to correct “a substantial injustice to the applicant”.¹² The proceedings, however, do provide a good illustration of the reasons why courts exercise vigilance in managing proceedings carefully to prevent litigants, however well intentioned, from converting them into instruments of oppression of the other party and obstacles to the court’s ability to provide expeditious service to other litigants. The applicant’s abatement of rent submissions referred to and set out in some detail in excess of 10 sections of the Act. The applicant complained about: access to the garage of the unit block; unparticularised “abuse, assault, trespass, indecent exposure”; neighbourhood dispute; traffic noise increased by the removal of foliage on an adjoining property; cabinet work around the range hood; unspecified “abuse of power” and “conspiracy”; denial of natural justice; “intimidation, harassment, bullying, senior/disabled abuse and sheer bastardry”; threats of rendering the applicant homeless; the management of the Body Corporate; Body Corporate non-administration and maladministration; negligence on the part of the respondent and health hazards.

[55] The appeal record is in two volumes. Volume 1 contains 489 pages and Volume 2 – 257 pages. Despite this, the applicant filed voluminous additional material: affidavits filed on 27 October 2011, 21 November 2011, 8 December 2011, 20 December 2011, 10 January 2012 and 24 January 2012.

[56] One of those affidavits has in excess of 80 exhibits. Another has a relatively meagre 10 exhibits which total 81 pages. There was a considerable degree of duplication.

[57] I should make it plain that counsel for the respondent wisely disavowed reliance on any of the further affidavits.

[58] PETER LYONS J: I have had the advantage of reading the reasons of Muir JA. Because I find myself in respectful disagreement with his Honour’s conclusion, it is necessary for me to set out my reasoning in some detail.

Background

[59] Pursuant to a tenancy agreement dated 16 January 2009, the applicant occupied a unit at Nundah as tenant of the respondent from January 2009 until April 2011. The rental was $55.10 weekly. This was substantially below market rental, and was referred to as being subsidised, the premises being described as a “social housing property”. These circumstances no doubt reflected the applicant’s financial circumstances. However, the tenancy was subject to the provisions of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act).

[60] On 25 March 2011, the applicant applied to the Queensland Civil and Administrative Tribunal (QCAT) under s 94 of the RTRA Act for a decrease in rent, on the grounds that the unit was partly unfit to live in. In fact, one form of relief which she sought was a rebate of the whole of the rental which she had paid. Her stated ground was that the property had been “continually flooded mostly with effluent and being subjected to the continual loss of facilities – especially since tampering with the sewer system on 19 May 2009; the continual internal flooding with effluent since 8th October 2010 – This is a serious health and safety risk …”. (rent decrease application).

[61] The rent decrease application was supported by a written document in the nature of a submission (March submission) setting out in some detail the applicant’s assertions about the difficulties she had experienced from flooding. Attached to the March submission were a number of annexures, including photographs and contemporaneous documents.

[62] In essence, the March submission alleged that the property first flooded on 25 January 2009, without any effluent; it flooded again on 20 May 2009, with effluent, after some work was done in sewer pits; there was a further problem with effluent on 3 March 2010; there were further such problems in the periods 8-11 October 2010, 26-27 December 2010, and 6-10 January 2011. As a result of the events in October 2010, the carpets were removed. The applicant complained about the odour; two unsealed sewer pits; internal chipboard being affected by effluent and being water-blown; and the presence of residual bacteria. The applicant also stated that when the pathway between the kitchen and the laundry/garage is covered in effluent water, it remains necessary to walk along it. The applicant also complained of a number of other matters, which it is not necessary to identify. The application identified three alternative periods for which a rent decrease was sought: the whole of the tenancy, as mentioned previously; the period from 19 May 2009; and the period from 8 October 2010.

[63] The respondent had commenced proceedings in the QCAT in 2010, being case Number 2651/10. In those proceedings, it would seem the applicant also sought a decrease in rent, as well as relief relating to removal expenses and a cleaning fee on the termination of an earlier tenancy.¹³ The focus of the present proceedings, however, is the rent decrease application.

[64] The two applications were determined in the QCAT on 3 May 2011. For convenience, I shall refer to this hearing as the Tribunal hearing, and to the member who presided over the Tribunal hearing as the Tribunal. The applicant provided further written submissions in support of the rent decrease application (May submissions) for the Tribunal hearing. That application was dismissed. So was the claim she made in the other case.

[65] The applicant then applied for leave to appeal from the Tribunal’s decisions under s 142 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). Although s 142 confers a general right of appeal, leave was necessary in the present case because the applicant’s claims gave rise to a “minor civil dispute”. In support of her applications for leave under s 142 of the QCAT Act, the applicant provided further written submissions (QCAT Appeal submissions). She also sought to introduce “new evidence”, set out in annexures and appendices provided with the QCAT Appeal submissions.

[66] For convenience, I shall refer to the member who determined the applications under s 142 as the Appeal Tribunal.¹⁴ The Appeal Tribunal determined the applications on the papers.¹⁵ The Appeal Tribunal refused to consider the new evidence which the applicant sought to introduce. She also refused the application for leave to appeal. That has resulted in the present application to this Court.

Application for leave to appeal to this Court

[67] Pursuant to s 150 of the QCAT Act, a person may appeal to this Court against a decision of the Appeal Tribunal to refuse an application for leave to appeal to that Tribunal. However, the appeal may be made only on a question of law, and only with the leave of this Court.

[68] In other statutory contexts, principles have been developed relating to the grant of leave to appeal to this Court. It seems to me that they are of assistance in the present proceedings. Their main features, as applied to s 150, may be shortly stated. The section confers a general discretion to grant or refuse leave to appeal, which is exercisable according to the nature of the case.¹⁶ However, leave will usually be granted only where an appeal is necessary to correct a substantial injustice to the applicant, and there is a reasonable argument that there is an error to be corrected.¹⁷

[69] It is convenient to deal with the application for leave by reference to the grounds formulated in the applicant’s written outline of argument.

Ground 1: errors relating to fitness of premises and reduction of amenity

[70] As will be seen, s 94 of the RTRA Act permits relief if premises are “made completely or partly unfit to live in”; or “the amenity or standard of the premises decreases substantially” (with other qualifications, not at present relevant).

[71] The Appeal Tribunal’s reasons for judgment included the following:¹⁸

“The learned Member did not accept that the premises were unfit to live in or that the amenity of the unit decreased substantially during the period of the tenancy. I have considered the documents filed in the tribunal and read the transcript carefully. There is nothing in the material that persuades me that the learned Member should have taken a different view.”

[72] The applicant has submitted that the Appeal Tribunal erred in law in holding there was nothing in the material before the Tribunal as to the premises being unfit in terms of s 94 of the RTRA Act; and that the Appeal Tribunal erred in law in finding that the Tribunal “did not accept that (the) premises were unfit to live in or that the amenity of the unit (decreased) substantially during the period of the tenancy”. The respondent submitted that the Appeal Tribunal correctly identified the finding of the Tribunal; and that in any event an error in doing so did not materially affect the result.

[73] In my view, the first error relied on by the applicant is not made out. It will be apparent from the passage quoted from the reasons of the Appeal Tribunal that this submission does not accurately reflect the finding.

[74] However, it seems to me that the Appeal Tribunal has not correctly understood the findings of the Tribunal. It should be said that formal reasons were not given, the Tribunal member expressing his views orally, with considerable interruption from the applicant. Nevertheless, it seems to me to be clear that the Tribunal accepted that grounds identified in s 94 of the RTRA Act existed, for which relief might be provided. Although he described the considerations as relating to “the peace and enjoyment of the property”, he acknowledged that the applicant had a “right” to it, and at one point said that it had “been an issue … for the duration of the tenancy”. However, he refused the application on discretionary grounds, namely, the attempts by the respondent to rectify problems, and to provide alternative accommodation; as well as the fact that the rental was very low, and the applicant sought a rebate of the whole of the rent for the full period of the tenancy.

[75] However, in this case, I would not be prepared to grant leave, unless I considered that the applicant had a real prospect of succeeding in her proposed appeal.

Grounds 2 & 3: Errors relating to s 94 of the RTRA Act

[76] The applicant submitted that there have been errors of law in relation to the interpretation and application of s 94 of the RTRA Act. Some of the submissions on these grounds proceed on the basis that the Appeal Tribunal was correct to find that the Tribunal did not accept that the premises were unfit to live in, or that the amenity of the unit had substantially decreased during the period of the tenancy. It is unnecessary to consider those submissions. The respondent submitted that the Tribunal’s decision was within the discretion conferred by s 94.

[77] In the brief comments made refusing the rent decrease application on discretionary grounds, the Tribunal referred on some three occasions to the level of rent being paid by the applicant. In her application for leave to appeal to the Appeal Tribunal, the applicant contended that it was immaterial that the rental she paid was as a result of funding by tax payers.¹⁹ Had the Appeal Tribunal correctly characterised the Tribunal’s decision, it would then have been necessary to consider whether this feature of the rent was a relevant consideration.

[78] The test for determining whether the Tribunal had taken into account an irrelevant consideration was said to be that stated by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd,²⁰ where his Honour said:

“In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard … .” (citations omitted)

[79] There is scope for debating whether the discretion is unconfined. It is a discretion which may only be exercised if certain conditions are satisfied.

[80] Section 94 of the RTRA Act is as follows:

“94****Rent decreases

(1)This section applies if the premises—

(a)are destroyed, or made completely or partly unfit to live in, in a way that does not result from a breach of the agreement; or

(b)no longer may be used lawfully as a residence; or

(c)are appropriated or acquired compulsorily by an authority.

(2)This section also applies if—

(a)services, facilities or goods to be provided to the tenant under the agreement are no longer available or are withdrawn other than because the tenant failed to meet the tenant’s obligations under the agreement; or

(b)the amenity or standard of the premises decreases substantially other than because of malicious damage caused by the tenant.

(3)The rent payable under the agreement decreases accordingly or, if an order for a decrease in the rent is made by a tribunal, to the extent stated in the order.

(4)A tribunal may make an order for a rent decrease only if—

(a)the tenant applies to the tribunal for the order; and

(b)if this section applies because of subsection (1)—the premises are partly unfit to live in.”

[81] The language of the section assumes that the parties to a tenancy agreement have agreed that the tenant might occupy premises which are fit to live in, for a particular rent, at a time when certain services, facilities and goods are to be provided, and the premises have a particular amenity or standard. The remedy for which the section provides is a decrease in rent; and it is available if the premises may no longer be occupied; if the premises become completely or partly unfit to live in; if the services facilities or goods are no longer supplied; or the amenity or standard of the premises decreases substantially. The section provides for two ways that the remedy might be available. One may be described as an automatic decrease in rent; and the other is a decrease in rent, as a result of an order by the Tribunal. The latter is available if a condition in s 94(2) applies; or if the premises are made partly unfit to live in.

[82] A remedy by way of an order of the Tribunal is available in only some of the circumstances identified in the section. I agree that the power to make an order is discretionary. However, since the purpose of the section is to permit an adjustment of the agreed rent in circumstances identified in the section, it seems to me that the fact that the rent is low as a result of assistance from the Government is beyond the intended scope of relevant considerations. I accept that, in exercising the discretion conferred by s 94, the Tribunal could take into account efforts of the lessor to address the circumstances which permit the discretion to be exercised, for example, attempts to carry out repairs, or offers of alternative accommodation, or, if the circumstances were anticipated, an agreement made in advance to rent at a lower rate than it would otherwise have been. Each of those examples is related to circumstances which the legislature identified as an occasion for relief. However I do not consider that the legislature intended that the Tribunal could take into account a consideration that is completely unrelated to any factor identified as permitting the discretion to be exercised. It seems to me that to hold otherwise would convert the function of the Tribunal into a general review of the appropriateness of the rent, in light of not only the circumstances which make s 94 applicable, but a range of other considerations of undefined scope. In my view, that is beyond the scope and purpose of the section. That conclusion, it seems to me, is supported by the fact that in some of the circumstances mentioned in s 94, the decrease in rent is to be automatic. Moreover the discretion is conferred on the Tribunal, which is intended to deal with matters in a way that is “economical, informal and quick”.²¹

[83] I also note that some tenancy agreements made pursuant to the Housing Act 2003 (Qld) are excluded from the operation of some provisions of the RTRA Act;²² but there is no similar limitation in respect of the grant of relief under s 94.

[84] In my view, the Tribunal took into account an irrelevant consideration, namely, that rent was below market value and reflected a subsidy from the respondent.

Ground 4: Appeal Tribunal’s refusal to receive further evidence

[85] In refusing to receive further evidence, the Appeal Tribunal referred to s 137 and s 138 of the QCAT Act; and to principles for the reception of further evidence in an appeal to this Court, formulated in Clarke v Japan Machines (Australia) Pty Ltd²³(Clarke’s case). The Appeal Tribunal also relied on the applicant’s failure to provide an explanation for the fact that the material was not available earlier.

[86] For the applicant it was submitted that the Appeal Tribunal should ascertain whether the evidence was reasonably available at the time of the earlier Tribunal hearing; that it should have invited oral submissions from the applicant specifying what was “new evidence”; that it inappropriately determined the appeal under s 32 of the QCAT Act, thus depriving the applicant of the opportunity to deal with the question whether the further evidence should have been received; that it should have regard to s 28 of the QCAT Act; and that it failed to recognise that the evidence was “fresh evidence”.

[87] The respondent supported the Appeal Tribunal’s reliance on s 137 and s 138 of the QCAT Act, and submitted that the Appeal Tribunal’s decision was final, relying on s 139(5) of the Act. The respondent also submitted that the reception of further evidence would not have altered the findings of the Appeal Tribunal, in a way which would materially have affected the outcome.

[88] Sections 137, 138 and 139 of the QCAT Act are found in Div 7 of Pt 7 of ch 2 of that Act. That division is entitled “Reopening”. Appeals generally are dealt with in Div 1 of Pt 8 of ch 2 which includes provisions about appeals and applications for leave to appeal to the Appeal Tribunal. Section 136 makes it plain that the provisions of Div 7 do not apply to an appeal to the Appeal Tribunal. It might be observed that when a reopening is permitted, the issues that are to be heard and decided again, are decided by way of a fresh hearing on the merits.²⁴ Moreover, s 141 provides that when an application has been made for a reopening, there can be no appeal or application for leave to appeal under Pt 8 Div 1, until the reopening application is finally dealt with.

[89] It follows, in my view, that the Appeal Tribunal’s reliance on s 137 and s 138 was misplaced; and that the provisions found in s 139 relating to the finality of a decision on a reopening application are of no present relevance.

[90] In Clarke’s case, an application was made to adduce further evidence on an appeal against the granting of an interlocutory injunction. The power of the court to receive such evidence was then regulated by O 70 r 10 of The Rules of the Supreme Court, which gave the appellate court full discretionary power to receive further evidence; but provided that upon an appeal from a judgment after a hearing of a cause or matter upon the merits, such evidence was not to be admitted “except on special grounds”. The court held that there had been a hearing of the cause upon the merits; with the consequence that special grounds needed to be shown before the evidence could be received. It was in that context that the tests were stated, which are referred to in the Appeal Tribunal’s reasons.

[91] No similar provision has been identified in relation to the proceedings before the Appeal Tribunal. Rather, s 147(2) of the QCAT Act provided in respect of an appeal that the appeal must be decided by way of a rehearing, “with or without the hearing of additional evidence as decided by the appeal tribunal”. There is no suggestion that on the appeal, that broadly expressed conferral of discretion is subject to a requirement that special circumstances be shown.

[92] The proceedings before the Appeal Tribunal were technically an application for leave to appeal. There is no reason to think that the approach to the admissibility of evidence in such an application is to be more restrictive than the approach to the admissibility of further evidence on an appeal.

[93] Moreover, the discretion to hear additional evidence conferred by s 147(2) of the QCAT Act is to be considered in the context of other provisions of the Act. It should be noted that under s 28,²⁵ the Appeal Tribunal was not bound by the rules of evidence, or by any practices or procedures applying to courts of record, other than to the extent the Appeal Tribunal adopted those rules, practices or procedures. Further, the Appeal Tribunal was authorised to inform itself in any way it considered appropriate. It was required to act with as little technicality as the requirements of the QCAT Act and a proper consideration of the matters before it would permit. It was also required to ensure, so far as practicable, that all relevant material was disclosed to it to enable it to decide the proceeding with all the relevant facts. Section 28, in my view, provides no support for the approach taken by the appeal Tribunal.

[94] Further, reference may be made to s 95(1) of the QCAT Act, which required the Appeal Tribunal to allow a party to a proceeding a reasonable opportunity to call evidence, though it was authorised to refuse to allow a party to call evidence on a matter “if the tribunal considers there is already sufficient evidence about the matter before the tribunal”. While that provision may have authorised the Appeal Tribunal to refuse to receive further evidence from the applicant, it was not the power which the Appeal Tribunal purported to exercise. Nor does it incorporate the tests formulated in Clarke’s case.

[95] It follows, in my view, that the Appeal Tribunal erred in law in refusing to receive the further evidence which the applicant sought to adduce.

[96] For completeness, I would add a reference to s 29(1)(a) of the QCAT Act. It required the Appeal Tribunal to take all reasonable steps to ensure that a party to a proceeding understood its practices and procedures. Had the Appeal Tribunal validly adopted practices and procedures relating to the reception of further evidence on an appeal, it seems to me it would have been incumbent on the Appeal Tribunal to inform the applicant of that. Since the purpose of s 29(1)(a) is plainly to enable a party to act in accordance with such practices and procedures, it seems to me inevitable that that would have been necessary to do, before the Appeal Tribunal ruled on the reception of the further evidence. It might be observed that the requirements of s 29(1) are consistent with the general approach of the QCAT Act to representation of a party before a Tribunal. The prima facie position is parties are to represent themselves, leave generally being required if a party is to be represented by a lawyer.²⁶

[97] I do not accept the respondent’s submission that the present application should be refused because it is unlikely that the reception of the evidence which the applicant sought to adduce before the Appeal Tribunal would have altered its findings in a manner which would materially affect the outcome of that appeal. The evidence included documents from independent sources which confirm that in October 2010, carpet in the unit was adversely affected by sewage, and had to be replaced. Given that the Appeal Tribunal was not persuaded by the material before the Tribunal that the Tribunal should have found the amenity of the unit decreased substantially during the period of the tenancy, it seems to me it cannot be said that such evidence might not have any effect on the outcome.

Disposition

[98] In my view, the applicant has demonstrated error on the part of the Appeal Tribunal. I consider that the correct identification of the provisions which regulate the reception of further evidence on an appeal to the Appeal Tribunal is a matter of some general importance. Moreover, in view of the conclusion reached by the Appeal Tribunal, the further evidence which the applicant sought to adduce may well have been important. These considerations support a grant of leave to appeal to this Court.

[99] On my reading of the Tribunal’s decision, the level of rent was a significant consideration. But for it, the result may well have been different. Again, this supports a grant of leave.

[100] The respondent submitted that there was no substantial injustice or error to be corrected on appeal. The matters relied upon in support of a submission that leave should accordingly be refused included the relatively small amount in issue, and the remoteness of the prospect that the applicant would be granted substantive relief.

[101] The total amount claimed by the applicant is relatively small. If she is successful, there is a substantial likelihood that any amount awarded to her will be significantly less than the total abatement of rent, which is one of the applicant’s claims. However, it has been recognised that leave is more easily granted where the order which is under challenge is final.²⁷ If the applicant is ultimately successful, the amount awarded may well be of significance to her, given her financial circumstances. Moreover, it has been said that the question of substantial injustice should not be looked at in isolation from a consideration of the likelihood that the appeal would succeed.²⁸

[102] In the circumstances, I would be prepared to grant the applicant leave to appeal against the decision of the Appeal Tribunal.

[103] The matters which have been argued appear to me to cover those matters which would be argued on the appeal. I would therefore be disposed to treat the hearing as the hearing of the appeal, to allow it, and to remit the matter to the Appeal Tribunal, to be determined according to law.

Conclusion

[104] I would grant the applicant’s application for leave to appeal to this Court. I would give the parties a short period to provide written submissions as to whether orders should be made to the effect that the hearing of the application be treated as the hearing of the appeal to this Court, to be determined in accordance with these reasons. I would also give the parties the opportunity to make written submissions about costs.

[105] DALTON J: I agree with the order of Muir JA and with his reasons.

Footnotes

1. Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142. ↩

2. Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 150. ↩

3. Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24 at 39-40. ↩

4. See s 136 of the QCAT Act. ↩

5. QCAT Act, s 12. ↩

6. QCAT Act, s 28(3)(b). ↩

7. QCAT Act, s 28(3)(c). ↩

8. QCAT Act, s 28(3)(d). ↩

9. See Clarke v Japan Machines (Aust) Pty Ltd (1984) 1 Qd R 404 at 408. ↩

10. (1946) 46 SR (NSW) 318 at 332. ↩

11. ACI Operations Pty Ltd v Bawden [2002] QCA 286 at [14]; and Arnold Electrical & Data Installations P/L v Logan Area Group Apprenticeship/Traineeship Scheme Ltd [2008] QCA 100. ↩

12. Arnold Electrical & Data Installations Pty Ltd v Logan Area Group Apprenticeship/Traineeship Scheme Ltd [2008] QCA 100 at [5]; and Smith v Ash [2010] QCA 112 at [50].