Cerednic v Freeman

[2011] QCATA 25

CITATION: Cerednic v Freeman & Ors [2011] QCATA 25

PARTIES:	Mr Iurie Cerednic (Applicant/Appellant)
v
Ms Heidi Freeman, Ms Rachelle Kennedy, Mr Paul Thomson and Ms Emma Thomson (Respondents)

APPLICATION NUMBER: APL105-10

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT:  Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON: 15 February 2011

DELIVERED AT: Brisbane

ORDERS MADE: Leave to appeal refused.

CATCHWORDS : 

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY DISPUTE – Where damage to residential property – Where alleged that respondents caused damage during tenancy – Where alleged that all evidence was not considered – Where alleged that entry and exit reports not considered – Where evidence was not taken on oath – Whether findings supported by evidence – Whether error of law to permit unsworn evidence to be given by parties.

Queensland Civil and Administrative Tribunal Act 2009 ss 28(3)(b), 32, 142(3)(a).

Cachia v Grech [2009] NSWCA 232, cited.

Casey v Repatriation Commission (1995) 39 ALD 34, cited.

Fox v Percy (2003) 197 ALR 201, cited.

Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, applied.
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, cited.
QUYD Pty Ltd Marvass Pty Ltd [2009] 1 Qd R 41, cited.
Secretary, Department of Social Security v Jordan & Jiang (1998) 155 ALR 236, cited.

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. The appellant Mr Cerednic was the lessor of a property rented by the respondents during the period 28 February 2009 to 27 February 2010.  Mr Cerednic alleged that the respondents caused damage to the property during their tenancy including damage to drains, lights, windows, fly screens, cupboards, bathrooms, and the carport.  He also claimed outstanding rent.  He brought a minor civil dispute application in this Tribunal on 12 April 2010 seeking damages of $3,291.97.

1. The matter was heard by a Magistrate acting as a QCAT Adjudicator on 20 May 2010, and the decision was delivered on 25 May.  The learned Magistrate ordered:

(i)      that the respondents pay Mr Cerednic $383.10 and the application fee of $90.00, a total sum of $473.10; and

(ii)     that the Residential Tenancy Authority pay out the respondents’ rental bond, in the amount of $1,846.90, to each of them equally.

1. On 11 June 2010, Mr Cerednic lodged an application for leave to appeal (and, if successful, to appeal) that decision.  As this matter arises from a Minor Civil Dispute, leave to appeal is necessary.[1]

   [1]        Queensland Civil and Administrative Tribunal Act 2009 s 142(3)(a).

1. Mr Cerednic’s grounds for appeal are, in effect, a restatement of his original claim.  Doing the best I can with what he says in them, and the benefit of any doubt, they appear to be that the learned Magistrate erred at first instance by failing to:

(i)      properly consider the information contained in the entry and exit reports; and

(ii)     carefully check all of the evidence presented.

1. Mr Cerednic also complains that the evidence at the hearing was not taken under oath.  That is to be regretted, and may be material to the weight to be given to the evidence before the tribunal but it is not, necessarily, an overwhelming or even a compelling ground of appeal.  As the learned Magistrate observed in his reasons, this Tribunal is not bound by the rules of evidence, or any practices or procedures applying to courts of record.[2]  Failing to take evidence under oath does not, necessarily, compromise the integrity of the information given at Tribunal hearings.[3]

   [2]        Queensland Civil and Administrative Tribunal Act 2009 s 28(3)(b).

   [3]Secretary, Department of Social Security v Jordan & Jiang (1998) 155 ALR 236, 245; Casey v Repatriation Commission (1995) 39 ALD 34, 38.

1. The relevance, if any, of the failure will depend upon the nature of the proceedings, and the presence of any factual disputes or issues involving the credit of parties who gave evidence.

1. The decision in Secretary, Department of Social Security v Jordan[4] considered how a failure to take evidence on oath might affect the integrity of evidence. The case concerned s 33(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’) which, in almost identical wording to s 28(3) of the QCAT Act, allows the Administrative Appeals Tribunal (AAT) to conduct proceedings with ‘…as little formality and technicality, and with as much expedition, as … a proper consideration of the matters before the tribunal permit’, and which does not bind the AAT by the rules of evidence, allowing it to ‘…inform itself on any matter in such manner as it thinks appropriate’, subject to the requirements of fairness and natural justice.

   [4] (1998)155 ALR 236, 245.

1. In that case, it was found that the Tribunal was entitled to have regard to evidence which was both taken under oath and not taken under oath in coming to its conclusions.[5]  It was observed, unsurprisingly, that where evidence was given that was not taken under oath, the Tribunal should weigh the evidence, particularly where there is conflict in the testimonies.

   [5]        Secretary, Department of Social Security v Jordan & Jiang (1998) 155 ALR 236, 245.

1. Casey v Repatriation Commission[6] also addressed the question how evidence which is not taken under oath may be considered by Tribunals. Once again, a consideration of s 33(1) of the AAT Act was involved. Justice Hill found that:

The fact that material may be inadmissible in accordance with the law of evidence does not mean that it can not be admitted into evidence by the tribunal or taken into account by it.  The criterion for admissibility of material in the tribunal is not to be found within the interstices of the rules of evidence but within the limits of relevance.[7]

[6] (1995) 39 ALD 34.

[7] Ibid, 38.

1. In the present case the transcript makes it clear that the learned Magistrate did balance the relevance of the available evidence and weighed that evidence where there was any conflict.  That is evident from the manner in which the learned Magistrate individually considered each instance of damage, and the evidence which related to that damage, and explained his decision on each claim by reference to that evidence.

1. In short, he relied upon relevant, if unsworn, evidence about each material aspect of each claim.  That, as these decisions show, means the decision can fairly stand despite the fact the evidence was not the subject of the usual formality.

1. Mr Cerednic also contends that the learned Magistrate did not properly consider the contents of the entry and exit reports, relating to the state of the premises, in coming to his decision.  The transcript of the proceedings shows, however, that the reports were discussed several times during the hearing and that the Magistrate directly referred to them on six occasions in the reasons he gave for his decision.  It is inescapable that they were fully and properly considered.

1. The first ground of appeal is, then, without merit.

1. Second, Mr Cerednic submits that the learned Magistrate did not carefully check all of the evidence presented at the hearing.  The transcript shows that both Mr Cerednic and the respondents gave oral evidence and submitted documentary evidence in the form of invoices, receipts and photos.  The transcript is persuasive that the Magistrate gave the parties ample opportunity to address each contentious issue.

1. It is also clear that the Magistrate fully considered all of the evidence presented at the hearing.  During the hearing itself he ensured the parties addressed each alleged instance of damage and the evidence available about the cause and cost of repairing that damage.  He then adjourned the matter, and took time to consider his decision.  There is simply nothing to support the suggestion of a lack of adequate consideration of all the issues, and all the evidence about them.

1. Accordingly, the second ground is without merit.

1. Nothing in hearing process itself, or the process of reasoning by which the learned Magistrate reached his decision, has been shown to reveal any mistake of law or fact.

1. Mr Cerednic has not, then, demonstrated an arguable case of error in the primary decision.  As there is no question of general importance in the present matter necessitating a decision of the Appeal Tribunal,[8] leave to appeal is refused.

   [8]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577.