Miroshnichenko v Bacic
[2013] QCATA 259
•30 September 2013
| CITATION: | Miroshnichenko v Bacic [2013] QCATA 259 |
| PARTIES: | Mr Sergey Miroshnichenko (Appellant) |
| V | |
| Miss Lainie Bacic (Respondent) |
| APPLICATION NUMBER: | APL232 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe OAM, Senior Member |
| DELIVERED ON: | 30 September 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused |
| CATCHWORDS: | MINOR CIVIL DISPUTE – whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549; Chambers v Jobling (1986) 7 NSWLR 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 |
APPEARANCES and REPRESENTATION (if any):
The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Ms Bacic rented a unit in Daisy Hill from 2009 to December 2012. Mr Miroshnichenko was the letting agent. He filed a claim for $817.48, being the cost of repairs required after Ms Bacic left the unit. An Adjudicator of the tribunal dismissed all but $22.70 of Mr Miroshnichenko’s claim.
Mr Miroshnichenko wants to appeal that decision. He says that the learned Adjudicator did not fulfil his obligations under s 29 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). He says that the hearing was rushed, because the interpreter assisting Mr Miroshnichenko had to be somewhere else by 1 pm. He says that the learned Adjudicator did not give him an opportunity to resolve the dispute by negotiation. He says that the parties had about 79 pages of documents to exchange and the learned Adjudicator did not give him time to consider those documents. Mr Miroshnichenko says that, because of these matters, he did not know how to act in the tribunal and, therefore, he did not present his case properly. He says that the learned Adjudicator cut him out of the process. Finally, Mr Miroshnichenko says that the learned Adjudicator erred in his assessment of the evidence.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?[4]
[1] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2] Cachia v Grech [2009] NSWCA 232 at 2.
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
Section 29 of the QCAT Act obliged the learned Adjudicator to take all reasonable steps to ensure that the parties understood the practices and procedure of the tribunal; the nature of the assertions made in the proceeding and the legal implications of those assertions; and any decision of the tribunal.
I have read the transcript of the proceedings carefully. I cannot find any comment by the interpreter, or the learned Adjudicator, that the proceeding was rushed because the interpreter had to be elsewhere. The transcript gives no sense that the parties were rushed in their submissions. In fact, the learned Adjudicator took some trouble to explain general residential tenancy principles to Mr Miroshnichenko. I note that the hearing started at 11.12 am and finished at 12.43 pm. That is a generous amount of time for a hearing about a limited number of issues, with a total value of $817.48, even allowing for the extra time taken to interpret conversations.
The transcript shows that Mr Miroshnichenko, with assistance from his support person, knew the case he had to present and the tribunal process. He answered the learned Adjudicator’s questions and presented his evidence. I am satisfied that the learned Adjudicator fulfilled his obligations under s 29.
Mr Miroshnichenko did ask the learned Adjudicator for “five minutes” so that he could talk to Ms Bacic.[5] Mr Miroshnichenko’s support person, Ms Sabouchkina immediately intervened, telling the learned Adjudicator that “She [Ms Bacic] couldn’t care less about anything left behind”. The learned Adjudicator also had copies of email discussions between the parties that indicated a resolution was unlikely. Although the tribunal prefers that parties resolve issues by themselves, in this case, there is no reason to criticise the learned Adjudicator for not allowing an adjournment.
[5] Transcript page 1-8, lines 5-7.
Although there are a lot of documents on the file, none of them is novel. The parties have filed copies of photographs, emails between them and invoices for work done. They are not the type of documents that require detailed consideration. The transcript gives no hint that Mr Miroshnichenko was having difficulty reading the documents and presenting his case. Ms Sabouchkina was assisting him. The learned Adjudicator had a detailed discussion with Ms Sabouchkina about what the photographs did, or did not, show[6]. I am not persuaded that Mr Miroshnichenko suffered any disadvantage in having to deal with the material handed to him at the hearing.
[6] Transcript pages 1-20 to 1-24.
There is no evidence that the learned Adjudicator cut Mr Miroshnichenko out of the process. I am satisfied that Mr Miroshnichenko had a proper opportunity to put his case and that he did so.
The appeals tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[7] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[8] As the High Court said in Fox v Percy:
In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.[9]
[7]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[8] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[9] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
The learned Adjudicator found that, except for $22.70, Mr Miroshnichenko did not prove his case. Ms Bacic said that the claims related to damage that existed when she moved into the house. Mr Miroshnichenko did not have a proper entry condition report, so he could not prove otherwise. He could not prove that Ms Bacic caused the damage. The learned Adjudicator was entitled to find as he did and there is nothing in the transcript to persuade me that the learned Adjudicator should have taken a different view of the facts.
There is no question of general importance that should be determined by the appeals tribunal. There is no reasonably arguable case that the learned Adjudicator was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.
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