Bergin v Department of Housing and Public Works
[2014] QCATA 185
•24 July 2014
| CITATION: | Bergin v Department of Housing and Public Works [2014] QCATA 185 |
| PARTIES: | Kerry John Bergin (Appellant) |
| v | |
| Department of Housing and Public Works (Respondent) |
| APPLICATION NUMBER: | APL187-14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 21 July 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr J R Forbes, Member |
| DELIVERED ON: | 24 July 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The application for leave to appeal is refused. |
| CATCHWORDS: | APPEALS – APPLICATION FOR LEAVE TO APPEAL – MINOR CIVIL DISPUTE – residential tenancy dispute – where failure to pay arrears of rent – where tenancy terminated – whether tenant had opportunity to present case – whether tribunal properly excluded irrelevant or repetitive material – whether any foundation for allegation of bias – where no arguable error of law shown – whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 95, s 142 |
| Bailey v Ahearn (1968) 13 FLR 199 Kinematograph Renters’ Society Ltd [1958] 2 All ER 579 Lawrance v Chief Executive Officer CRS Australia (2006) 42 AAR 539; [2006] FCA 341 Robinson v Corr [2011] QCATA 302 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
This is an application by Kerry John Bergin (“the tenant”) for leave[1] to appeal against an order made by the tribunal on 15 April 2014, in favour of the respondent Department (“the landlord”) for termination of Bergin’s tenancy of residential premises at Walkers Lane, Booval (“the premises”).
[1]QCAT Act s 142(3)(a)(i) – appeal in minor civil dispute.
The order is based on sections 280, 281 and 293 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (“the RTRAA”).[2]
[2]RTRAA s 280 (notice to remedy breach); s 281 (Notice to leave for unremedied breach); s 293 (Application for termination for failure to leave).
At all material times the tenant occupied the premises under a State Tenancy Agreement with the landlord, dated 28 April 2011.
On 30 January 2014 the landlord served[3] upon the tenant a notice to remedy a breach of the subject lease, namely failure to pay arrears of rent.
[3]Affidavit of Kasey Stewart sworn 14 March 2014.
On 13 February 2014 the landlord served[4] upon the tenant a notice to leave in the prescribed Form 12C, alleging a failure to pay the said arrears.
[4]Affidavit of Gary Ladlay sworn 13 March 2014.
On 14 March 2014 the landlord filed an application for a warrant of possession of the premises, alleging non-compliance with the said notice to leave. It is mandatory that an application for termination under section 293 be made within 14 days of the “handover day”.[5] The handover day in this case was 2 March 2014, and the landlord’s application for termination was duly filed on 14 March 2014.
[5]RTRAA s 293(2); Face 2 Face Foundation Pty Ltd & Ors v Brisbane City Council [2013] QCATA 252.
The matter was heard and determined on 15 April 2014, when it was ordered that the tenancy agreement between the parties be terminated as from midnight on 28 April 2014, and that a warrant of possession issue, to take effect on 12 May 2014.[6] A stay of proceedings was refused on 2 May 2014.
[6]Transcript of hearing 15 April 2014 (“Transcript”) pages 23-24.
The tenant’s application for leave to appeal, filed on 22 April 2014, sets out a single ground of appeal:
The Magistrate was stopping me from getting for evidence [sic] from the housing service as witnesses or if the Magistrates [sic] asks the questions for me to the housing service.
In an affidavit attached to his application for leave[7] the tenant adds some particulars to his broad complaint of unfairness
a)“I put a summons to get Mss [sic] Bradley and it was blocked.” (Ground 1)
b)“I told the bench that I want Mr Schafferius as a witness but again the Bench blocked my defence”. (Ground 2)
c)“My second question to the Bench was for the Bench to ask other 3 [sic] housing service employees about before June 2013 and ... whether the housing service forced and stopped me from paying. The Bench said the Bench will not ask that question for me.” (Ground 3)
[7]Affidavit by tenant/appellant sworn 22 April 2014.
The affidavit ends with an allegation of bias (Ground 4):
I think the Magistrate and [a member of the landlord’s staff] are personal friends by the way they acts [sic] in court and are friends in places like [an Ipswich club] etc and the judging was done before the hearing and that is why the Magistrate did not want another evidence [sic] to be heard in court.
The rest of the affidavit attempts to re-argue the facts found by the Adjudicator, with the addition of irrelevant ramblings about various persons who “tried before to kill me with lying witnesses” and an offer to “give the court more information about the other 3 murders I know about as they are attached to the people that used Chloroform and burning plastic on me in 2005/6”.
On 26 June 2014 the tenant swore and filed an affidavit that was not provided for in the directions of Senior Member Stilgoe issued on 2 May 2014. On 5 July 2014 the tribunal ordered that it not be taken into account. I have disregarded it.
Ground 1 – Ms Bradley
Ms Bradley is not mentioned in the transcript. There is no record of a summons, or request for same on the tenant’s behalf. The tenant fleetingly asked the Adjudicator to put a question to “Casey”, but immediately changed that to a request to put it to “the three men here”, namely Messrs Stewart, Schafferius and Ladley.[8] Those three representatives of the landlord were readily available for questioning by the tenant himself. Indeed, the tenant had already had an exchange with Schafferius[9], who subsequently volunteered an answer to the question, despite its obscurity and dubious relevance.[10]
[8]Transcript page 22 lines 22-24.
[9]Ibid page 6.
[10]Ibid page 21 lines 44-47, page 22 lines 1-6.
As the Adjudicator observed, the essential point is that the tenant was $1,248 in arrears at the end of January 2014 – the period to which the landlord’s application relates.[11] It was principally a matter of consulting a relevant “rental statement”, a copy of which was before the tribunal, and the accuracy of which was not seriously challenged. Three of the landlord’s officers were available to provide any additional evidence in support of the application. No relevant evidence for the tenant was “blocked”. Courts and tribunals are entitled to curb repetitive[12], or irrelevant[13] evidence or argument, and that commonsense principle is confirmed in the QCAT Act.[14] There is no substance in Ground 1.
[11]Ibid page 12 lines 11-12, page 24 line 18. Rental statement page 5 of 6, recording unpaid weekly rent charges for 6, 13, 20 and 27 January 2014.
[12]Kinematograph Renters’ Society Ltd [1958] 2 All ER 579; Bailey v Ahearn (1968) 13 FLR 199.
[13]Lawrance v Chief Executive Officer CRS Australia (2006) 42 AAR 539; [2006] FCA 341.
[14]QCAT Act s 95(2)(a).
Ground 2: Schafferius as potential witness
As noted above, and as the transcript confirms, Mr Schafferius was present at the hearing, and some discussion, albeit immaterial, took place between him and the tenant. It was up to the tenant to question him directly, subject to the tribunal’s control of irrelevance. At no stage did the tenant indicate that he had a question relating to the accuracy of the landlord’s records for January 2014. On that point he was notably evasive.[15] His suggestion that the landlord “stopped me from paying the rent” at that time[16] does not sit well with his earlier, albeit self-contradictory, statement:
Adjudicator: [Y]ou pay every fortnight ... until the 30th of [December 2013] and then you stop paying.
Mr Bergin: ... I had to fix me computer. I told them down there ... they wouldn’t let me stop paying the rent ... I always paid my rent until they stopped me from paying it.[17]
[15]Transcript page 5 lines 16-47; page 6 lines 1-5.
[16]Transcript page 22 line 24.
[17]Ibid page 7 lines 1-9; see also page 11 lines 1-4 (tenant).
There is no evidence that any relevant question by the tenant to Mr Schafferius was “blocked”.
The tenant had ample opportunity to raise any relevant matter. His assertions occupy three-quarters of page 4 of the transcript, and most of page 5. On pages 6, 7 and 8 he engages in dialogues with Scafferius and the Adjudicator. His discussions with the Adjudicator continue on pages 10-15 of a transcript of just 24 pages, and at page 22 he is given a final opportunity to advance his case.
I reject the second ground.
Ground 3: Questions about June 2013
The tenant’s equivocal evidence about the alleged stoppage of his payments has been noted. The event to which he refers, if ever it occurred, took place six months before the material time, January 2014. The Adjudicator was entitled to treat it as an irrelevant distraction. This ground is without substance.
Ground 4: The bias allegation.
Here there is nothing but a broad assertion, without particulars and supporting evidence, that the tenant “thinks” that the Adjudicator and one of the landlord’s officers are “personal friends” who have a social club in common. That is not nearly enough to vitiate the decision in question. In fact the Adjudicator made a close examination of the landlord’s case,[18] heard the tenant’s meandering submissions patiently, and was at pains to direct his attention to the relevant entries in the landlord’s records.[19] An allegation of bias – even if it be no higher than apprehended bias – is a serious matter, calling for cogent evidence from the party making it.[20] It is quite unacceptable for a party to make an unfounded charge of bias against a decision maker who does not accept his case. By no means every social or professional relationship – even if properly proved – supports a valid claim of bias.[21]
It is not a characteristic of the law’s reasonable man either to be irrationally superstitious of every institution or authority or to think that every cynical appraisal represents an absolute truth.[22]
[18]Transcript pages 16-21.
[19]Transcript page 10 line 29: “I’m happy to bring it down and show it to you.”
[20]Re JRL; Ex parte CJL (1986) 161 CLR 342 at 356.
[21]See e.g. S and M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358.
[22]Ewart v Lonie [1972] VR 308 at 312 per Lush J.
The functions of a court or tribunal cannot be allowed to depend on “the suspicions of the ultra-sensitive, paranoid or cynical”.[23] Frivolous allegations of bias are an attribute of the vexatious litigant.[24]
[23]S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 at 374 per Kirby J.
[24]Wentworth v Graham (2003) 57 NSWLR 741.
The tenant’s fourth ground is baseless, and must therefore be rejected.
An application for leave to appeal is not an opportunity for a re-trial. It is not nearly enough for an applicant to express disappointment, or to entertain a subjective feeling that justice has not been done.[25] It is not an appellable error to prefer one version of the facts to another, or to give less weight to one party’s case than he thinks it deserves. Findings of fact will not be disturbed if they have rational support in the evidence, even if another reasonable view is available.[26]
[25]Robinson v Corr [2011] QCATA 302 at [7].
[26]Fox v Percy (2003) 214 CLR 118 at 125-126.
The tenant has not succeeded in showing an arguable error of law or miscarriage of justice. Accordingly his application must be refused.
ORDER
The application for leave to appeal is refused.
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