Garrett v L J Hooker Cleveland

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Garrett v L J Hooker Cleveland  [2018] QCATA 134

PARTIES:

KARL GARRETT
 (appellant)
v

L J HOOKER CLEVELAND

(respondent)

APPLICATION NOS:

APL307-17, APL346-17

ORIGINATING APPLICATION NO/S:

MCDT168-17, MCDT230-17 (Cleveland)

MATTER TYPE:

Appeals

DELIVERED ON:

11 September 2018

HEARING DATE:

9 September 2018

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes, Member

ORDERS:

1.   Application for leave to appeal numbered APL307 of 2017 is dismissed.

2.   Application for leave to appeal numbered APL346 of 2017 is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPLICATION FOR LEAVE TO APPEAL - GENERAL PRINCIPLES – RES JUDICATA – ANSHUN ESTOPPEL – ABUSE OF PROCESS – tenancy dispute – whether premises defective – whether compensation payable to tenant – whether splitting of cause of action – two applications for leave to appeal jointly determined

Queensland Civil and Administrative Appeals Tribunal Rules 2009 (Qld), r 83
Residential Tenancies and Rooming Accommodation Act 2005 (Qld), s 414A

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Batistatos v Roads and Traffic Authority NSW(2006) 226 CLR 256
Coulton v Holcombe (1986) 162 CLR 1
Ebber v Isager [1995] 1 Qd R 150
Mansfield v Fokas [2018] NSWSC 249
Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611
Pickering v McArthur [2005] QCA 294

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014

Tomlinson v Ramsey Food Processing Pty Limited (2015) 256 CLR 507

W In re (an infant) [1971] AC 682

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented (by Ms C Young)

REASONS FOR DECISION

The First Appeal APL307 of 2017

  1. From 12 May 2016 until 11 May 2017 the appellant Karl Garratt (`Garratt’) leased and occupied residential premises at Cleveland. The respondent (`Hooker’) was the owner’s letting agent.

  2. Garratt’s complaints about several aspects of the property generated a voluminous correspondence between him and Hooker and several applications by Garratt to the Residential Tenancy Authority. Eventually, on 1 June 2017 Garratt filed a Minor Civil Dispute against Hooker, as lessor’s agent.[1]

    [1]Residential Tenancies and Rooming Accommodation Act 2005 (Qld) s 414A. According to standard term 43 of the lease (RTA Form 18a) the agent may represent the lessor in any application to a tribunal.

  3. These proceedings have been conducted throughout by unrepresented parties. Understandably, the documents that serve as pleadings are inartificial and often lacking in particularity. However, by his initial application Garratt sought an order for `rent relief’, alleging `Loss of amenity, a service or facility’.[2] An annexure to the application listed several alleged defects, including `cracked tiles in the shower base’, mould in the shower recess and a defective hot water system.

    [2]There was also a claim for `payment of bond’ but that is no longer a issue.

    Issues Defined

  4. In an early exchange between Garratt and the adjudicator[3], the ultimate issue of sub-standard premises was distilled[4] into claims for compensation for these physical…

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Details
Case
[2018] QCATA 134
Decision Date

CaseChat Overview and Summary

In the case of Garrett v L J Hooker Cleveland, the plaintiff, Mr. Garrett, sought to appeal two separate decisions of the tribunal that dismissed his claims for compensation and damages arising from alleged defects in a property he rented. The legal issues before the court included whether the tribunal had jurisdiction to hear the claims in the second action, whether the claims were res judicata, and whether the claims were an abuse of process. The court held that the tribunal did not have jurisdiction to hear the claims in the second action, as they were beyond its remit. Furthermore, the claims were res judicata, as they had already been litigated in the first action, and it was an abuse of process to attempt to bring them again. The court also found that the plaintiff's allegations of fraud and dishonesty against the defendant's representative were unfounded and that the weight of evidence was a matter for the tribunal. Ultimately, the court dismissed both applications for leave to appeal, finding that there was no arguable ground for appeal and that no substantial injustice would be done if the decisions were not corrected.

The court's reasoning was grounded in the principles of res judicata and abuse of process. The court found that the tribunal's jurisdiction was limited to matters concerning the tenancy itself and the defects in the premises. It held that the plaintiff could not bring a second action to claim different things simply because he was dissatisfied with the outcome of the first action. The court further held that claims could not be split, and that once a claim had been adjudicated, it could not be revisited in another action. The court also found that the plaintiff's allegations of fraud and dishonesty were unfounded and that the weight of evidence was a matter for the tribunal. The court held that it would rarely interfere with the tribunal's assessment of the evidence, and that the tribunal was entitled to discount aspects of the plaintiff's evidence that it found to be hyperbolic. The court ultimately dismissed both applications for leave to appeal, finding that the plaintiff had not demonstrated any reasonably arguable ground for appeal.

Orders

Orders of the court

1. Application for leave to appeal numbered APL307 of 2017 is dismissed.

2. Application for leave to appeal numbered APL346 of 2017 is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Garratt is frankly disappointed with the modest proceeds of his action, but mere disappointment or dissatisfaction at a decision on quantum is not a ground of appeal. Weight of evidence a matter for Adjudicator An important factor in assessing compensation is the credit, or weight, of the claimant’s evidence. That is a matter for the primary judge, and an appeal court will rarely interfere. In this case it is apparent that the Adjudicator considered that aspects of Garratt’s evidence were hyperbolic. The tribunal was told of an experience that `ruined a year of my life’[8], a `disgraceful year spent in this property, all the time being harassed, bullied and treated arrogantly’ by Hooker’s staff.[9] But despite a perception that `the property was appalling when [he] moved in’[10] Garratt remained there for the full year of his tenancy.[8]T.1 page 42 line 1.[9]Annexure to application filed on 14 June 2017 page 1.[10]T.1 page 28 line 1. A party seldom enhances his or her credit by casting aspersions on opposing parties or witnesses without strong supporting evidence. Garratt repeatedly accused Ms Cook, who represented the respondent, of lying and dishonesty.[11] He described invoices she produced as `falsified’.[12] `She deserves to be charged’ he added.[13] Particularly serious were several allegations of perjury against Ms Cook – two during the trial[14], and a third at the hearing of this appeal. Courts insist that charges of fraud must not be made in the absence of proper particulars and cogent evidence. [11]T.1 page 14 line 23, T.1 page 22 line 11, T.1 page 24 line 15, T.1 page 29 line 25, T.1 page 15 line 21, T.1 page 33 line 19.[12]T.1 page 31 line 32, T.1 page 50 line 25.[13]T.1 page 49 lines 35-37.[14]Submissions in Case No 2 page 2, second Notice of Dispute filed 21 September 2017 `purgery’ (sic).Applications for leave to appeal – requirements A party seeking leave to appeal must show an arguable case that an error of law or miscarriage of justice has occurred, and that a substantial injustice will be done if it is not corrected.[15] An application for leave is not an opportunity to reargue issues of fact or credit. Within the bounds of rationality those are matters for the primary judge. The trial is not merely a `preliminary skirmish’.[16]If there is evidence, or if there are available inferences which compete for the judge’s acceptance, no error of law occurs simply because the judge prefers one version of evidence to another or one set of inferences to another. This is his function. ... Even if the evidence is strongly one way the Appeal Court may not intervene simply because it reaches a different conclusion …[17][15]Pickering v McArthur [2005] QCA 294 at [3].[16] Coulton v Holcombe (1986) 162 CLR 1 at 7 (per Gibbs CJ, Wilson, Brennan and Dawson JJ).[17]Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151 per Kirby P. The assessment of unliquidated damages or compensation involves an exercise of discretion. Where reasonable minds may differ, a decision is not erroneous simply because one conclusion has been preferred to another possible view.[18][18]Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at [131]; In Re W (an infant) [1971] AC 682 at 700; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1025.Conclusion

Decision

Reasons for decision

The assessment of unliquidated damages or compensation involves an exercise of discretion. Where reasonable minds may differ, a decision is not erroneous simply because one conclusion has been preferred to another possible view.[18][18]Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at [131]; In Re W (an infant) [1971] AC 682 at 700; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1025.Conclusion Garratt explicitly accepted that there were four defects in the property as leased.[19] On all four issues the Adjudicator found in his favour. Two set-offs claimed by Hooker were discounted, one quite substantially. Garratt maintains that the amounts awarded should have been larger, but that opinion is not a ground of appeal. Garratt has not demonstrated any reasonably arguable ground of appeal. Appeal 307 of 2017 must be dismissed.[19]T.1 page 3 lines 40-45; page 4 lines 1-13, T.1 page 26 line 44.The Second Appeal: APL346 of 2017 After the decision challenged in the first appeal was decided on 24 August 2017, Garrett instituted another Minor Civil Dispute on the same day. That action was dismissed on 21 September 2017. In this application Garratt seeks leave to appeal that decision. In the second action Garratt sought:[C]ompensation or damages - including illness and injury. Reimbursement for expenses due to faults and unsuitable entry condition. The reasons given for these claims closely resemble complaints canvassed in the first action:Cracked tiles in shower base caused laceration to feet. Mould caused breathing problems. Scaulding [sic] and burns caused by 75 degrees water temp. Illegal entry and bullying/harassment caused stress, anxiety and depression. The Adjudicator’s reasons for judgment are encapsulated in these extracts from the transcript[20]:I’ve got no jurisdiction in respect of any personal injury claim, illness or injury.[21] ... [M]y only jurisdiction is about those matters which concern the tenancy itself, the premises, the defects ... that sort of thing.[22] ... [T]he jurisdiction of the tribunal has been exhausted. The claim has been fully ventilated ... You can’t come back and keep asking for different things when you feel like it.[23][20]Transcript of hearing 21 September 2017 (`T.2’)[21]T.2 page 3 lines 2-3.[22]T.2 page 3 lines 31-32.[23]T.2 page 3 lines 40-41, 45-46.Rights of action exhausted – abuse of process – the Anshun rule In so far as the second set of claims is not beyond the tribunal’s jurisdiction, they attempt to extend the consequences or implications of matters already litigated. It is a firm principle of law – technically described as res judicata - that a claim once adjudicated may not be revisited in another action.[24] By the same token, claims may not be `split’ by claiming some of the results of a given event in one case, and other results of the same event in a later case.[25][24]Mansfield v Fokas [2018] NSWSC 249.[25]Ebber v Isager [1995] 1 Qd R 150.

Ratio Decidendi

Legal Principle Established

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