Richardson v McArthur & Associates
[2014] QCATA 44
•13 March 2014
| CITATION: | Richardson v McArthur & Associates [2014] QCATA 044 |
| PARTIES: | Marcus Richardson (Appellant) |
| v | |
| McArthur & Associates (Respondent) |
| APPLICATION NUMBER: | APL476-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe OAM Member Howard |
| DELIVERED ON: | 13 March 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The record is corrected to reflect that the respondent’s name is McArthur & Associates; 2. The application for leave to appeal is refused. |
| CATCHWORDS: | APPLICATION FOR LEAVE TO APPEAL AND APPEAL - MINOR CIVIL DISPUTE - RESIDENTIAL TENANCY MATTERS - where alleged breach of natural justice - whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 28(3)142 Kioa v West (1985) 159 CLR 550 Vakauta v Kelly (1989) 167 CLR 568 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 33 British American Tobacco Australia Services Ltd v Laurie (2011) 273 ALR 429 Stephens v Stephens (2010) 43 Fam LR 106 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] Qd R 388 Cachia v Grech [2009] NSWCA 232 Georgalis v Andonaras (1993) 113 FLR 196 Doherty v Liverpool District Hospital (1991) 22 NSWLR 284 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
Senior Member Stilgoe:
I have read the draft reasons for decision and orders of Member Howard. I agree with them.
Member Howard:
Mr Richardson filed an application for a minor civil dispute about a residential tenancy. The tenancy commenced in March 2012. It was terminated in about September 2013. He sought compensation in the amount of $24,570 plus filing fee. According to Mr Richardson’s application, the amount was for rent paid, bond and cleaning costs for the period during which he lived in the rental premises concerned, together with the sum of $2,900 for a 50 inch television which ‘blew up’ due to water entering from the ceiling. His claim was made on the basis that, in breach of s 185 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (the RTRA Act), the premises was unfit for a tenant to live in due to severe white ant infestation.
Mr Richardson’s application was dismissed by an Adjudicator. Mr Richardson seeks leave to appeal the learned Adjudicator’s decision.
The Adjudicator’s oral reasons set out the basis for his decision. He was satisfied that Mr Richardson became aware of the issues with the premises within the first month of his tenancy and by April 2012. However, Mr Richardson filed his application in August 2013. He considered that section 420 of the RTRA Act provided for orders to be made for breach of an agreement. However, he said that section 419 provides that the application must be made within 6 months after the tenant becomes aware of the breach. He was satisfied that Mr Richardson’s claim was made outside of the 6 month time frame (which the Adjudicator was satisfied could not be extended because of the prescriptive nature of the RTRA Act). He dismissed the application.
Mr Richardson seeks leave to appeal on the grounds that he was not treated fairly by the Adjudicator and that he did not understand the Adjudicator because he has a disability; and that the Adjudicator was biased and had pre-determined the decision. He seeks orders for compensation on the basis of his original claim. He provided with his application a variety of documents and photographs which were not in evidence before the Adjudicator.
He subsequently provided submissions prepared on his behalf in support of his application, together with more evidence including a statutory declaration and entry condition report. The submissions do not address the grounds of appeal about unfair treatment and bias. Instead they seek to reargue the original claim although on an amended basis, claiming now $16,283. McArthur & Associates were directed to file submissions in response but did not do so.
Legal considerations
Leave is required to appeal the decision under section 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) because the original decision involves a minor civil dispute.
The grounds of appeal raise a question of law since the basis for the ground, in effect, is that Mr Richardson has been denied natural justice. In conducting a proceeding, the tribunal is required to observe natural justice.[1]
[1]QCAT Act s 28(3).
Leave to appeal will ordinarily be granted when a question of general importance upon which further argument and a decision of the Appeal Tribunal is to public advantage;[2] there is a reasonably arguable case that the primary decision-maker made an error[3] and there are reasonable prospects that the applicant would be granted orders in its favour;[4]or to correct a substantial injustice to the applicant caused by error.[5]
[2]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578 and 580.
[3]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4]Cachia v Grech [2009] NSWCA 232, [13].
[5]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
The appeal process is to correct error made by the original Tribunal. It is not a second opportunity to reargue the case because a party is unhappy with the outcome. The appeal jurisdiction is not generally the proper forum to receive fresh evidence.[6] There is a public interest in the finality of litigation.[7] Generally for additional evidence to be admitted, it must be shown that the additional evidence sought to be relied upon at appeal was not available and could not have been obtained with reasonable diligence for use at the hearing; that it is highly probable that if admitted there would be a different result; and that it is credible. [8]
[6]See discussion in Georgalis v Andonaras (1993) 113 FLR 196; Doherty v Liverpool District Hospital (1991) 22 NSWLR 284.
[7]Warr v Santos [1973] 1 NSWLR 432, 440; and R v Bayliss [2002] NSWCCA 11.
[8]Cicic v Snowy Mountains Hydro-Electric Authority [1964-65] NSWR 178.
Decision
The rules of natural justice are flexible and depend upon the statutory framework governing the Tribunal in question.[9] However, two of the certain components of natural justice are the hearing rule (which requires in essence that parties must have the opportunity to present their evidence and arguments, as well as respond to credible, relevant and significant evidence and issues against them); and the rule against bias (which requires that a decision-maker not have an interest in the subject matter to be decided, nor bring a prejudiced mind to the matter).
[9]Kioa v West (1985) 159 CLR 550.
I have read the transcript of the hearing. The learned Adjudicator was careful to afford Mr Richardson the opportunity to present his evidence. He heard Mr Richardson’s submissions about the alleged breach of s 185. The Adjudicator then explained sections 419 and 420 (as far as they are relevant) to Mr Richardson affording him the opportunity to make submissions about the sections. After the Adjudicator explained the time limit set out in s419(3) requiring an application to be brought within 6 months of a tenant becoming aware of the breach, Mr Richardson said that he wasn’t aware of the limitation and that no-one had told him about it. He then became increasingly agitated. He subsequently left the hearing room before the Adjudicator delivered his oral reasons for decision.
On my reading of the transcript, the Adjudicator acted carefully and appropriately in affording Mr Richardson the opportunity to present his evidence and arguments. I am satisfied that the hearing rule was not breached.
I turn now to the allegation of bias made against the Adjudicator. Bias may be actual or apprehended.[10]
[10]Vakauta v Kelly (1989) 167 CLR 568; Stephens v Stephens (2010) 43 Fam LR 106.
The test for apprehended bias is whether a fair-minded lay bystander might reasonably apprehend that the decision-maker might not bring an impartial mind to the determination of the issues that he or she must decide.[11] There are two steps in its application: identification of what is said might lead the decision-maker to decide the case other than on its merits, and secondly, the logical connection between the matters identified and the feared digression.[12] Mere reference to a decision-maker’s past decisions is insufficient to ground disqualification: there must be grounds upon which impartiality might not be afforded.[13] An adverse ruling against a party is insufficient.[14]
[11]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; British American Tobacco Australia Services Ltd v Laurie (2011) 273 ALR 429; Laws v Australian Broadcasting Tribunal (1990) ALR 435; Greenwood v Winsor [2008] QCA 415; Elsafty Enterprises Pty Ltd v Gold Coast City Council [2011] QCA 84.
[12]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Stephens v Stephens (Disqualification) [2010] FAMCAFC 206.
[13]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Mbuzi v University of Queensland [2010] QCA 336.
[14]Mbuzi v University of Queensland [2010] QCA 336.
Generally, concerns about bias should only be raised for the first time on appeal, where the alleged bias appears for the first time in the decision given at the conclusion of the proceedings.[15] If a party, either expressly or impliedly, consents to a judge who was previously involved continuing to be so involved, the party can not later object to the involvement.[16] If bias is not objected to at the time it is apprehended, the right to object may be waived.[17]
[15]R v Justices of Rankine River; Ex parte Sydney;Ex Parte Pluto (1962) 3 FLR 215.
[16]In the Marriage of Murphy and Armstrong (1978) 35 FLR 482.
[17]Vakauta v Kelly (1989) 167 CLR 568; Stephens v Stephens (2010) 43 Fam LR 106.
The transcript reveals that the Adjudicator had previously presided over proceedings concerning the termination of Mr Richardson’s tenancy. However, the transcript does not suggest that Mr Richardson was unhappy with or concerned about the involvement of the Adjudicator in these proceedings because of his involvement in the earlier proceedings. He did not raise any issues about this or express any concern during the proceedings about the possibility of bias on the Adjudicator’s behalf. He did not at that stage allege bias of the Adjudicator. On my reading of the Adjudicator’s reasons for decision, there is nothing said which causes concern about bias, and nor does Mr Richardson allege bias in the reasons for decision in his grounds of appeal. His statement in his application for leave to appeal alleging bias is bare and generalised.
There is nothing raised in Mr Richardson’s submissions in the appeal proceeding about bias. The only reference to it is the bare allegation of bias made in the application for leave to appeal or appeal itself. There is nothing in the material before me which suggests the Adjudicator was biased or which would have raised concern in a reasonable person that he might not be impartial. There is nothing in the new evidence upon which it seems Mr Richardson would rely (if granted leave) to do so which would assist him in relation to the allegation of bias
For these reasons, I would refuse the application for leave to appeal the Adjudicator’s decision.
The file incorrectly refers to the respondent as McCarther & Associates, when it is McArthur & Associates. I therefore also make a direction correcting the record.
Further, I make the observation that even if leave to appeal was granted, Mr Richardson would inevitably fail on appeal. The evidence of Mr Richardson before the Tribunal was that he became aware of the alleged breach by the landlord by April 2012 (and the new evidence if it was given leave to rely upon it, does not suggest otherwise), but did not make his application for compensation until August 2013. The Adjudicator was correct that the RTRA Act is prescriptive and any application for breach of agreement must be made within 6 months after a person becomes aware of the breach.[18] As the Adjudicator explained to Mr Richardson, the Tribunal must apply the law, no matter how much sympathy it may have had for his circumstances.
[18]Big4 Brisbane Northside Caravan Village v Schliebs [2012] QCAT 277, [42] per Justice Wilson SC, President; Evans v Saarman [2013] QCATA 58, [8-9].
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