Riley v Bishop

[2018] QCATA 151

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Riley v Bishop [2018] QCATA 151

PARTIES:

ADAM RILEY
 (appellant)

v

PRIYA BISHOP

(respondent)

APPLICATION NO:

APL023-18

ORIGINATING APPLICATION NO/S:

MCDT2044 of  2017 (Brisbane)

MATTER TYPE:

Appeals

DELIVERED ON:

15 October 2018

HEARING DATE:

12 October 2018

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes, Member

ORDERS:

The application for leave to appeal is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPLICATION FOR LEAVE TO APPEAL - GENERAL PRINCIPLES – nature and limitations of applications for leave to appeal – minor civil dispute (residential tenancy dispute) – bond moneys – whether paid – whether evidence to discharge onus adduced – no appellable error demonstrated

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 142(3)
Residential Leases and Rooming Accommodation Act 2008 (Qld), s 61, s 77

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139

Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842
Devries v Australian National Railways Commission (1993) 177 CLR 472

Duke v Duke (1975) 12 SASR 106
Fox v Percy (2003) 214 CLR 118
Snell v Morgan [2011] QCATA 316

Thompson & Anor v Jedanhay Pty Ltd [2012] QCATA 246

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

The 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

1. On 21 August 2017 the appellant Adam Riley commenced a Minor Civil Dispute (residential tenancy) against one Brian Bishop. Subsequently it was ordered that Priya Bishop, Brian’s wife, was the proper respondent.[1]

   [1]See record of decision made 6 December 2017.

2. The appellant’s claim for $1,080 reads as follows:

   Bond was paid and I have the original receipt. Landlord is refusing to return bond as it was never lodged with the RTA.

3. The respondent denies that a bond was paid as alleged.[2]

   [2]Statutory declaration of Priya Bishop filed 6 December 2017; T page 20 line 41.

4. The respondent now seeks orders that the appellant be fined and ordered to pay $5,000 compensation for `harassment for two years’.[3] Apart from the fact that a counterclaim may not be added at this stage, the tribunal does not have jurisdiction to make either type of order.

   [3]Statutory declaration received at hearing on 6 December 2017

5. According to the respondent, the appellant `leased’[4] the respondent’s premises at Bundall from about 7 July 2014 to 4 October 2015, and again from 19 October 2015 to 17 January 2016.

   [4]It is not clear whether the arrangements between the parties constituted a lease (or leases) or some less formal arrangement.

6. It is common ground that these `leases’, lawful or otherwise[5], were not evidenced in writing.[6] According to the Brian Bishop: `That is what it was – a week to week, with no agreement. [sic] And that’s what [Riley] wanted to do.’[7] So informal were the arrangements that the absence of a bond would not be so surprising as normally it would be.

   [5]Cf  Residential Leases and Rooming Accommodation Act 2008 (Qld) s 61 (leases), s 77 (rooming accommodation).

   [6]Transcript of hearing 6 December 2017 (`T’) page 11 line 38 (Riley); page 15 line 37 (Bishop).

   [7]T page 15 lines 36-37.

7. The onus of proving the applicant’s claim rests, of course, upon the applicant. The handwritten document that he tendered as a `receipt’ for his alleged bond payment[8] is unsatisfactory in several respects. It is unsigned and undated, and Brian Bishop swears that the handwriting is not his, nor that of his wife, the respondent.[9]

   [8]Annexure B to application for leave to appeal filed 23 January 2018.

   [9]Transcript of hearing 9 May 2018 (T) page 9 line 9.

8. That evidence is contradicted by the appellant: `I’m 90 percent sure it is [Brian Bishop’s]. If it’s not it’s [the respondent’s].’[10] He was `pretty sure it’s Brian’s’.[11] But there is no evidence that the appellant was sufficiently familiar with the handwriting of either person to be qualified to express these opinions.[12]

   [10]T page 9 line  25.

   [11]T page 9 line 34.

   [12]Duke v Duke (1975) 12 SASR 106 at 108.

9. As noted above, the appellant’s first `tenancy’ began on or about 7 July 2014. Copies of the appellant’s bank account for the period 12 May 2014 to 12 August 2014 (not produced on trial) are attached to the application for leave. They show no withdrawal or electronic transfer of $1,080 to the Bishops in that period. However, there appears to be a transfer of $500 to Brian Bishop on 14 July 2014. The appellant claims that this was in part payment of the bond; the balance, he says, was paid in cash.[13]

   [13]T pag2 7 line 28.

10. Clearly the tribunal did not accept that evidence, preferring the respondent’s version. A handwritten `file note’ on the original record of decision, signed by a member of the tribunal, reads:

    The applicant’s case was confused and lacking in evidence. ... . There was no evidence submitted by him that was in any way probative. His “receipt” was undated and appeared to be calculations on a piece of paper.

11. At the hearing the same member put it bluntly: `That’s not a receipt’.[14] And furthermore: `What you’re telling us just isn’t holding up. And you’re not giving us any evidence to work with ... compared with what the respondents have told us.’[15]

    [14]T page 25 line 3.

    [15]T page 23 lines 20-21, page 24 line 5.

12. The appellant’s case depends on judgment of credit, and almost entirely on the alleged `receipt’. In a nutshell, it failed because, on the tribunal’s findings of fact and credit, the appellant failed to satisfy the civil standard of proof. In other words, the tribunal did not find it more probable than not that the appellant lodged the security bond normally associated with tenancy agreements in writing.

13. The appellant presented his case on appeal as if it were a retrial and revision of the trial. That is an understandable error of unrepresented appellants, but it is quite misconceived. An application for leave is not a retrial. An appeal is not an occasion to repeat or reargue evidence rejected by the trial judge, or to present material that could have been led at the trial, but was not.[16]

    [16]Snell v Morgan [2011] QCATA 316 at [10]; Thompson & Anor v Jedanhay Pty Ltd [2012] QCATA 246 at [28].

14. The legislative policy of the QCAT Act is that primary decisions, particularly in minor civil disputes, should normally be final. An applicant for leave must show that it is reasonably arguable that the decision in question is affected by legal error, or was reached in patent disregard of evidence clearly established, or exhibits a finding of fact or credit that is `glaringly improbable’.[17] Credit findings are seldom disturbed, particularly when they are substantially based on the demeanour of the parties.[18] It is recognised that trial courts have the considerable advantage, not enjoyed by a court of appeal, of seeing and hearing the witnesses giving their evidence, presenting their arguments, and conducting themselves in court.

    [17]Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 per Brennan, Gaudron and McHugh JJ; Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842 at 844.

    [18]Fox v Percy (2003) 214 CLR 118 at 127.

15. It is not legal error to prefer one version of the facts to another, or to give less weight to one party’s case than the latter thinks it deserves. That is a trial court’s prerogative. There is no legal error in merely making a decision with which other reasonable minds may differ.[19] Findings will not be disturbed where, as here, they have rational support in the evidence, even if another reasonable view is available.[20] Certainly it cannot be said that the present finding is unreasonable, let alone `glaringly improbable’.

    [19]       Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151.

    [20]Fox v Percy, above at 125-126.

    Resolution

16. The appellant has not demonstrated any appellable error in the primary decision, nor do I discern any. There was evidence upon which the adjudicators were entitled to act as they did, and accordingly it is not for this tribunal to interfere. The application for leave to appeal must be dismissed.

    ORDER

17. The application for leave to appeal is dismissed.