Berry v Treasure & Anor

[2021] QCATA 61

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Berry v Treasure & Anor [2021] QCATA 61

PARTIES:

BRET WILLIAM BERRY

(applicant/appellant)

v

JOHN ROBERT TREASURE

(first respondent)

SHELLY ANNE TREASURE
(second respondent)

APPLICATION NO/S:

APL010-20

ORIGINATING APPLICATION NO/S:

MCDT72/19 (Proserpine)

MATTER TYPE:

Appeals

DELIVERED ON:

25 May 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Daubney, President

ORDERS:

The application for leave to appeal or appeal is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – OTHER CASES – where applicant was a tenant in house owed by respondents – where respondents claimed money owed to them by applicant for rent and remedial works – where respondents filed application for minor civil dispute in Tribunal – where applicant ordered to pay respondents some of the claimed amounts – where applicant filed application for leave to appeal or appeal that decision – where applicant claimed original hearing was rushed – where applicant claimed Acting Magistrate declined to review relevant documents – whether  Acting Magistrate was in error   

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 28, s 142

Queensland Civil and Administrative Tribunal Rules 2009, r 83

Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39

Burke v Commissioner of Police [2019] QCA 158
Durrand v Karaolis [2012] QCATA 182
Goldfield Projects Pty Ltd v Queensland Building and Construction Commission [2020] QCATA 21

Pickering v McArthur [2005] QCA 294

REPRESENTATION:

Applicant:

Self-represented

Respondents:

H Barker i/b Vestplus Pty Ltd t/as Homes to Rent

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)

REASONS FOR DECISION

1. The Applicant, Bret Berry, was the tenant of a house in Cannonvale owned by the Respondents, John Treasure and Shelly Treasure.  It was a residential tenancy under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). The Respondents’ agent was Hana Barker of “Homes to Rent”.

2. The Applicant vacated the property at the conclusion of the tenancy.  The Respondents claimed, however, that rent was in arrears and that certain remedial works needed to be performed at the property.  Attempts to have the matter conciliated through the Residential Tenancies Authority (“RTA”) came to nothing, and in November 2019 the Respondents filed an “Application for minor civil dispute – residential tenancy dispute” in QCAT.  The Respondents claimed for the following:

   (a)carpet cleaning - $125.00;

   (b)new carpet - $730.00;

   (c)paint and repair of three walls - $660.00;

   (d)rent arrears - $670.70;

   (e)water charges - $183.52;

   (f)window cleaning - $148.50; and

   (g)repair of broken downpipe - $49.50.

3. This minor civil dispute came on for hearing before an Acting Magistrate on 22 November 2019.  Ms Barker, the agent, appeared by telephone at the hearing for the Respondents.  The Applicant appeared in person.  After hearing the parties, the Acting Magistrate made his decision and gave ex tempore reasons for the decision.  The decision allowed some of the claimed amounts in whole or part, and disallowed others:

   (a)carpet cleaning - $125.00;

   (b)new carpet - $500.00 (amount discounted due to age of carpet);

   (c)paint and repair of three walls - $660.00;

   (d)rent arrears - $240.00 (this amount was agreed by the parties in the course of the hearing);

   (e)water charges - $183.52;

   (f)window cleaning - NIL (claim disallowed); and

   (g)repair of broken downpipe - NIL (claim disallowed).

4. The amount recoverable by the Respondents was rounded by the Acting Magistrate to $1,720.00, which also happened to be the amount of the bond being held by the RTA.  The Acting Magistrate also ordered that the Applicant should pay the filing fees of $123.20 incurred by the Respondents.[1]   The Acting Magistrate ordered that the bond be paid to the Respondents’ agent.

   [1]Queensland Civil and Administrative Tribunal Rules 2009, r 83.

5. The Applicant filed an Application for leave to appeal or appeal dated 6 December 2019.[2]

   [2]In July 2020, a Tribunal member determined that the Application had been filed within time, and no issue is taken on this point.

6. The Applicant and the Respondents (by their agent, Ms Barker) have filed lengthy submissions, and also sought to put further evidence before the Tribunal.  Neither had leave to adduce further evidence.

7. The Applicant’s grounds of appeal stated:

   The hearing was rushed as the Judge was hearing another case at the time and kept saying he had barristers and solicitors waiting outside for other case so wanted a quick hearing.  The representative of the applicant had emailed all her evidence to the court for the hearing as she was on the phone.

   While I had a 7 hour return trip to be at the hearing in person having cost to get there and take a day off work with all my evidence in response to the allegations and claims against me.  In the hearing I was not able to put forward any of my evidence including photos with time stamps of when taken and was told that because the representative of the applicant was unable to view them couldn’t be shown to the judge.  I have photos, txt messages, statements from pest and carpet cleaners to support false allegations and emails to support all claims made against me and not able to prove them wrong.  Some evidence supplied by homes to Rent is misleading and allegations made are here say and there is also statement from homes to rent stating new tenant was a friend of a friend.

8. I have reviewed the transcript of the hearing before the Acting Magistrate.

9. On several occasions in the course of the hearing, the Acting Magistrate referred to the fact that he had counsel and solicitors in another matter waiting to be heard.  The Magistrate did not, however, preclude the Applicant from making submissions.  On the contrary, the transcript reveals that the Applicant addressed the Magistrate at some length.  The point being made by the Magistrate to the parties was that theirs was not the only matter to be heard on that day, and to encourage them to deal with the matter expeditiously.  That expression of attitude by the Magistrate was neither surprising nor objectionable.  Minor civil disputes must be dealt with quickly and expeditiously.  Such disputes are, of course, important to the parties involved, but that must be balanced against the reality that the civil justice resources of the State are not a bottomless pit and need to be allocated with appropriate proportionality.  QCAT decides many thousands of minor civil disputes each year.  It must deal with those disputes quickly, not just because that is one of the express objects of the Tribunal[3], but because the civil justice system for small claims would collapse under its own weight without quick, efficient and pragmatic approaches to the decision making process which are consistent with achieving justice.

   [3]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”), s 3(b)

10. Making this point to the parties in the course of the hearing to encourage them to deal directly with the matters in issue did not reveal an error in approach by the Acting Magistrate.

11. It is also true that the transcript reveals that the Acting Magistrate declined to receive and look at documents from the Applicant in the course of the hearing.  The reason, quite simply, was that the Respondents’ agent, Ms Barker, was appearing by telephone and could not see them.  The transcript also makes clear, however, that the Applicant described to the Magistrate what was in those documents, and the points he wished to have drawn from the contents of those documents.  It is clear from the transcript that the Magistrate understood and had regard to that information.  The Tribunal is not bound by the rules of evidence and may inform itself in any way it considers appropriate.[4]  It is axiomatic that the Tribunal must afford procedural fairness to the parties, that being a necessary integer of the requirement that the Tribunal observe the rules of natural justice.[5]  And, relevantly, it must act with as little formality and technicality and with as much speed as a proper consideration of the matters before the Tribunal permits.[6]   In the present case, whilst the Magistrate did not have the actual documents before him, he had the substance of the information contained in the documents.  Having regard to the circumstances of this case, that was sufficient for the purposes of determining the dispute.  The Applicant was not denied procedural fairness by the Magistrate adopting that course.

    [4]QCAT Act, s 28(3)(b)-(c).

    [5]QCAT Act, s 28(3)(a).

    [6]QCAT Act, s 28(3)(d).

12. Otherwise, the matters raised by the Applicant in his grounds of appeal and submissions amount to nothing more than him seeking to re-argue the points that he made before the Magistrate.

13. As this was a decision in the Tribunal’s minor civil dispute jurisdiction, the Applicant must first obtain the Appeal Tribunal’s leave to appeal.[7]  It is well established that leave will usually only be granted where it is necessary to correct a substantial injustice to the applicant, and where there is a reasonable argument that there is an error to be corrected.[8] 

    [7]QCAT Act, s 142(3)(a)(i).

    [8]Pickering v McArthur [2005] QCA 294, [3]. For recent applications of this statement of principle, see Burke v Commissioner of Police [2019] QCA 158 and, in this jurisdiction, Goldfield Projects Pty Ltd v Queensland Building and Construction Commission [2020] QCATA 21.

14. There is no automatic right of appeal against minor civil dispute decisions.  I respectfully adopt and endorse the following observations by the former President, Justice Alan Wilson, in Durrand v Karaolis[9]:

    The Queensland Parliament has made it clear, in the QCAT Act, that so far as possible minor civil disputes of this kind are to be resolved by a simple procedure which is speedy, inexpensive and final. That conclusion is reinforced by the fact that before a party can appeal a decision in this jurisdiction it must obtain leave from the Appeal Tribunal … In other words, there is not an automatic right to appeal these decisions; rather, an applicant must first establish that it has a right to a grant of leave.

    [9][2012] QCATA 182, [7] (omitting citations).

15. Nor is an application for leave to appeal an opportunity for a party to simply reargue the merits of the matter in the hopes of achieving a different outcome.[10] 

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

16. For the reasons given above, I am not satisfied that the Applicant has demonstrated that there is a reasonably arguable case of error on the part of the Acting Magistrate, nor is leave necessary to correct a substantial injustice.

17. Accordingly, the application for leave to appeal will be dismissed.