Gibson v D Cocco and Sons Investments Pty Ltd - [2020] QCATA 159

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Gibson v D Cocco & Sons Investments Pty Ltd [2020] QCATA 159

PARTIES: TIMOTHY BRETT GIBSON

(appellant)

v

D COCCO & SONS INVESTMENTS PTY LTD

ROSE COCCO

(respondents)

APPLICATION NO/S:

APL118-20

ORIGINATING APPLICATION NO/S:

MCDT 96/20 (Ipswich)

MATTER TYPE:

Appeals

DELIVERED ON:

24 November 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

ORDERS:

Leave to appeal against the decision made on 21 April 2020 in MCDT 96/20 (Ipswich) is refused. This means that the appeal fails.

CATCHWORDS:
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN NO APPEAL LIES – leave to appeal – where appellant sought leave to appeal against the tribunal’s decision about whether a notice to leave without grounds was retaliatory – whether any reasonably arguable grounds of appeal

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 291, s 292

REPRESENTATION:

Appellants:

Self-represented

Respondent:

Self-represented

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

This appeal is from a decision of an Adjudicator concerning a notice to leave without grounds. Timothy Gibson applied to the tribunal to have the notice to leave set aside as retaliatory. The Adjudicator decided that it was not retaliatory and did not set it aside. Mr Gibson now appeals.
The statutory provisions which enable tenants to apply to have a notice to leave set aside if it is retaliatory are in sections 291 and 292 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld). The provisions specify some protected acts, but also in section 291(3) provide more general protection. It is only if the notice to leave is given because of a protected act that it can be set aside.
In his application to the tribunal, Mr Gibson said that he believed the notice to leave was issued as reprisal for:
(a)His bringing to the attention of several relevant authorities dangerous workplace health and safety issues that existed in the caravan park, including the presence of exposed asbestos. Mr Gibson said he reported his concerns to Workplace Health and Safety and received a response on 10 October 2019 from the State Government’s Office of Industrial Relations.
(b)His investigating fees and charges added to the tenants’ electricity accounts that he and other tenants believe to be an ‘illegal practice’. In particular, management was not applying the pensioner discount to the electricity bills. He said the manager of the park Susan Armstrong became aware that he was investigating this on 30 or 31 October 2019 from discussions with tenants.
In the application, Mr Gibson said that there had been an earlier notice to leave which the tribunal had decided was invalid in a hearing on 28 January 2019. He said that later that day he was served with another notice to leave, requiring him to vacate by midnight on 31 March 2020, and which therefore gave the two months’ notice required. This was the notice to leave he was seeking to have set aside.
The matter came before an Adjudicator for hearing on 31 March 2020. The Adjudicator’s notes show that Mr Gibson and Ms Armstrong were in attendance that day with Mark Armstrong present as a witness. The application was discussed with the parties and Mr Gibson informed the Adjudicator about one important witness who had complained to Ms Armstrong in the Park Office about not receiving the electricity rebate. The witness had told her that he had been talking to Mr Gibson about this. And it was that evening that Ms Armstrong served Mr Gibson with the earlier notice to leave. Hence, Mr Gibson said, this showed that the notice was in retaliation for Mr Gibson’s activities in questioning the absence of the electricity rebate and discussing it with this tenant.
At the hearing on that day Ms Armstrong said that the reason for the notice to leave was that work was needed to the cabins and there was documentary material about this.
Directions were given on that day for the park managers to file and serve the material on which they wished to rely to establish that the notice to leave was not retaliatory in nature. The Adjudicator reserved the matter part-heard.
The matter came before the same Adjudicator for final hearing on 21 April 2020. The Appeal Tribunal has obtained a transcript of the hearing of 21 April 2020 and it is possible from that to see what happened.
At this second hearing, Mr Gibson again relied on the evidence of the person who was supposed to have complained in the office earlier in the day that the notice to leave was served.[1] But this evidence was not before the tribunal in a straightforward manner. What happened was that Mr Gibson had applied for a non-publication order and attached to that application the statements of a number of witnesses who did not want their statements to be seen by the park managers, and who did not want to be identified at all.[2] The application for a non-publication order said that if the non-publication was not to be made, then all the evidence would be withdrawn. A few days later the statements of the witnesses which had been attached to the application for the non-publication order were resubmitted as exhibits to affidavits made by the makers of the statements, although the affidavits omitted to confirm the truth of the statements.
[1]Transcript 1-14 line 29.
[2]Application on Form 40 dated 3 February 2020.
Although the tribunal did make the non-publication order,[3] clearly if the tribunal had found in Mr Gibson’s favour in reliance on any of the evidence which could not be disclosed, the losing party could well complain that they did not have a fair hearing because they had been unable to see, understand or test crucial evidence which had resulted in them losing the case.
[3]Order of 17 March 2020.
In the case of the person who had complained in the office on the day of the notice to leave, the application for a non-publication order seems to have made little sense because if the allegation was true the park manager who spoke to the person that day would know the identity of the person anyway. Only if the allegation was not true would the non-publication order be of value because it would effectively suppress the identity of the maker of an untrue statement.
This seems also to have been of concern to the Adjudicator.[4] The Adjudicator gave careful and full reasons for the decision reached that the notice was not retaliatory. The Adjudicator regarded the burden of proving that the notice was retaliatory as upon Mr Gibson. The Adjudicator found that he had failed to prove that the park managers knew that he had complained to the relevant authorities about dangerous workplace health and safety issues in the park. The Adjudicator also found that he had failed to prove that the park managers were aware that he had been investigating the electricity charge issue. On the specific question of the discussion in the office, which if true the Adjudicator considered could result in an inference being drawn as to retaliatory action,[5] the Adjudicator did not think it happened. The discussion was flatly denied by the park manager,[6] and the evidence that it did happen was, in the Adjudicator’s view, fatally weakened by the non-attendance of the witness and the desire of the witness not to be identified.[7]
[4]As expressed in the transcript 1-18 line 42, 1-25 line 19.
[5]Transcript 1-29 line 10.
[6]Transcript 1-16 line 13.
[7]Transcript 1-28 line 45.
Although in the reasons the Adjudicator did refer to, and examine, the explanation given by the park manager for the giving of the notice, which was related to work which needed to be done to the premises occupied at the time by Mr Gibson, the Adjudicator made no express findings about whether or not the explanation was correct.
The Adjudicator did however express some concerns with inconsistencies in the evidence given by Mr Gibson,[8] and it was on that basis together with the weakness of any evidence showing that the notice to leave might be retaliatory that the application was dismissed.
[8]Transcript 1-30 line 25.

The appeal

I summarise the grounds of appeal as follows. Mr Gibson says that there was a failure of procedural fairness because one document relied on in the Adjudicator’s decision, a document/quote from a disability organisation, had not been sent to him prior to the hearing as had been directed and:
(a)He was not aware at the hearing that this document had not been sent to him because the respondents told the Adjudicator that they had sent him all the documents, which was incorrect.
(b)Although the Adjudicator directed that Mr Gibson be sent documents by email during the hearing two pertinent documents never arrived.[9]
(c)He should have been given an opportunity to respond to it with evidence and submissions before the Adjudicator made the decision.
[9]This ground of appeal appears in the application for a stay dated 8 May 2020.
Mr Gibson says that the direction to provide the documents relied on was disobeyed twice. He says that the Adjudicator’s decision was based on generic documentation related to the park but not applicable to his specific cabin, and the documentation was never provided to him.
Mr Gibson relies on fresh evidence showing that the respondents were not intending to modify his cabin. The fresh evidence provided is a statement purportedly from relief managers at the park. It deals with the offer of a replacement cabin and it deals with whether Mr Gibson’s was to be worked on or removed.
Mr Gibson says that the respondents misled the Adjudicator into believing that the offer of a replacement cabin was a proper offer because under the offer he could not have his cats in the cabin which was unreasonable and unfair.

Considerations

Mr Gibson is mistaken about how the Adjudicator reached the decision. The Adjudicator decided that Mr Gibson did not have an arguable case that the notice to leave was retaliatory on the grounds that he sought to make out.
Hence there was no need for the Adjudicator to decide whether the respondents’ explanation was correct or not. Also there was no need for the Adjudicator to decide whether or not the offer of alternative accommodation was a reasonable one.
All the grounds of the appeal go to those two issues, and so none of them are capable of impugning the Adjudicator’s decision. And the fresh evidence which Mr Gibson wishes to adduce from the relief managers goes to the question of alternative accommodation, which was not part of the Adjudicator’s reasoning either.

Conclusion in the appeal

In an appeal of this sort there has to be an arguable ground of appeal before leave to appeal can be given. Here the grounds of appeal are not arguable. I refuse leave to appeal. This means that the appeal fails.