Williams v Norfolk Realty Pty Ltd - [2014] QCATA 311

CITATION:

Williams & Anor v Norfolk Realty Pty Ltd & Anor [2014] QCATA 311

PARTIES:	Steve Williams Candis Jones (Applicants/Appellants)
v
Norfolk Realty Pty Ltd Natasha Thorndyke (Respondent)

APPLICATION NUMBER:

APL292-14

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Oliver

DELIVERED ON:

11 November 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to Appeal is refused.

CATCHWORDS:

RESIDENTIAL TENANCY – PRODECURAL FAIRNESS – whether applicant gave the respondents an Notice of Intention to Leave – whether the respondents in breach of the tenancy agreement – whether credit findings open on the evidence – whether the applicant had a fair opportunity to present their case – whether any evidence of bias

APPEARANCES:

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

The applicants were tenants of a property owned by Ms Thorndyke at Kismet Street, Ormeau. Norfolk Realty Pty Ltd were the letting agents for the property. The tenancy agreement between them was for a period of 12 months commencing on 18 May 2013 and ending on 17 May 2014. A rental bond of $2,920 was paid. The weekly rent was $730 per week. The relationship between the applicants and the respondents had been somewhat acrimonious to the point where the applicants vacated the property on 20 January 2014.
The applicants left after they say, they gave the respondents a Notice of Intention to Leave on or about 5 January 2014. The grounds of the Notice related to constant harassment by the agent and owner; failure to provide a place of peace, comfort and quiet enjoyment; and failure to maintain property in good repair. The applicants, by the Notice, indicated that they intended giving vacant possession to the property by midnight on 19 January 2014.
Because the bond money was withheld after the applicants vacated the property, they filed an application in the minor civil disputes jurisdiction of the Tribunal claiming $5,000 for the cost to relocate, harassment and cleaning. Particulars of the claim are set out in the application filed on the 12 March 2014.[1]
[1]Claim Number 334/14.
Just prior to that application being filed the respondent, Ms Thorndyke, also filed an application claiming arrears of rent of $1,460, compensation of $750.31, water consumption $464.69, carpet cleaning and pest $245; a total claim of $2,920.
Both claims came on for hearing before a Tribunal Adjudicator on 11 April 2014. All parties gave evidence in the hearing and the transcript of that proceeding indicates that both parties had a lot to say about their respective claims.
After considering the documentary evidence produced, and hearing from the parties, the learned Adjudicator found, as a matter of fact, that the Notice of Intention to Leave was not served on the respondents and therefore concluded that the arrears of rent of $1,460 was due and payable. Because of the finding that the tenants failed to comply with the requirements of the Residential Tenancy and Rooming Accommodation Act 2008 (Qld) they were, therefore, not entitled to any compensation for the cost of removal. Furthermore, because the removal cost included the cost of the removal of trucks and a shipping container, such costs were not contemplated by the residential tenancy agreement and therefore those claims were dismissed.
In the end, with respect to the rental bond of $2,920, the learned Adjudicator ordered that $2,219.69 be paid to the respondents and $700.31 be paid to the applicants. The moneys paid to the respondent consisted of, as I said two weeks rent, the undisputed amount of the unpaid water consumption and the balance was for cleaning and incidentals.
Subsequent to that decision, the applicants filed an application for leave to appeal or appeal. In the grounds of appeal they contend that the learned Adjudicator:
·        Showed bias towards the applicants and did not give them a fair hearing.
·        Did not properly take into account a Council local law with respect to the parking of trucks on residential property.
·        Denied the applicants natural justice.
·        Allowed the respondents to conduct themselves inappropriately.
·        Allowed the respondents to ‘shout over’ the applicants.
·        Permitted the respondents to produce evidence during the course of the hearing.
·        Failing to conclude that there was never any ‘illegal use’ of the property with the parking of trucks on it, by the applicants.
Section 142(3) deals with appeals to the Appeal Tribunal. It provides, in particular that:
(a)an appeal under subsection (1) against any of the following decisions of the tribunal may be made only if the party has obtained the appeal tribunal’s leave to appeal—
(i)a decision in a proceeding for a minor civil dispute
Both applications were brought as minor civil disputes within the meaning of that term in the definition of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). Therefore, leave to appeal is necessary. Leave to appeal is another way of saying permission to appeal.
Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?
The contentions raised by the applicants in the appeal particularly those alleging a denial of procedural fairness raise questions of law. However, underpinning that contention is whether the factual conclusions reached by the learned Adjudicator were done so without affording the parties natural justice. Similar observations can be made with respect to the allegation of bias.
The witnesses for the parties in both proceedings included Mr Williams for the applicant, Tammy Cory-Jones, for Norfolk Realty and Natasha Thorndyke. They were all present in the courtroom during the course of the hearing, which went for some considerable time. I have a written transcript of the hearing which, including the reasons for decision, traverse some 62 pages. The learned Adjudicator dealt with each application sequentially first dealing with Mr Williams’s application and then moving on to deal with the respondent’s application.
The learned Adjudicator heard from both parties with respect to whether the Notice of Intention to Leave was in fact served on Norfolk Realty. He asked relevant questions where appropriate, and received and considered all documentary evidence tendered during the course of the hearing. In the end he made a finding of fact that it was not served. In coming to this decision, was the applicant denied procedural fairness?
The requirements of procedural fairness, as discussed in Kioa v West,[2] must be adjusted to the statutory framework governing the Tribunal in question:
the expression “procedural fairness” more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations….
[2](1985) 159 CLR 550 at 584 – 585.
It is evident from the transcript that the parties continuously argued amongst themselves and tried to make points in support of their respective cases before the Tribunal. It is evident, again from the transcript, that the learned Adjudicator tried to engage both parties to elicit the evidence he needed to help him make a decision particularly in respect of his finding about service of the Notice of Intention to Leave. It is certainly not evident on reading the transcript of the hearing that the learned Adjudicator favoured one party over the other. However, I should say, that in making a finding that is favourable to one party as opposed to the other, does not of itself indicate bias. This is the very function of the decision maker in a dispute.
If one criticism can be laid about the conduct of the hearing is that, unfortunately, it appears the learned Adjudicator did give the parties somewhat of a free rein in allowing them to argue amongst themselves, rather than take control to ensure that he took evidence from one side, then evidence from the other and proceed to make a decision.
Having said that, there were credit issues involved in this case. Therefore, the conduct of the hearing in this fashion might have assisted him in coming to the decision he was required to make. Given the informality that is required of Tribunal hearings under the QCAT Act, all Adjudicators have an unenviable task of trying to control parties who have emotional involvement in the cases that they bring before the Tribunal. Also, particularly in Brisbane, hearings are conducted in hearing rooms that are totally inadequate and unsuitable for any type of contested hearing, particularly minor civil disputes. Well-designed hearing rooms, like those in the courts, assist greatly in ensuring there is civility and respect firstly; between the parties, inter se; and secondly; between the parties and the adjudicator/member hearing the matter. It is very easy, in considering the appeal, to read the transcript and pontificate on how the hearing might have been better conducted. However, given the significant experience of Tribunal Adjudicators in the conduct of minor civil dispute hearings where parties are generally unrepresented, and in a substandard hearing environment, it is important to allow them the latitude necessary to ensure the hearing progresses in the best way considering the circumstances of the parties and issues in dispute. This will ensure that firstly, all relevant and necessary evidence is adduced, and secondly, to ensure that the parties feel they have been given a fair opportunity to present their case. This is consistent with what was said in Kioa v West.
Having regard to the issues in dispute here, it seems to me that both parties had every opportunity to present their case. I do not discern from the transcript, nor indeed from the reasons for decision, any obvious favour by the learned Adjudicator over one party as opposed to the other, nor do I discern any lack of procedural fairness.
The written submissions filed by the applicants do not, as is required by the principles surrounding applications for leave to appeal, focus on any error on the part of the Tribunal Adjudicator (apart from procedural fairness). The submissions are general and seek to reargue the whole case again before the Appeal Tribunal afresh. That is clearly not the function of the Appeal Tribunal. Its function in deciding whether to grant leave, or permission, is to identify some error of law or error in the reasoning process, which would result in a substantial injustice.
Largely this case turned on its own facts. The conclusions of fact, as found by the learned Adjudicator were clearly open on the evidence before him. In particular, once he found the Notice of Intention to Leave had not been served, then clearly the outstanding rent was payable as was the other claims made by the respondents, subject to quantification. The flow-on effect of this finding meant that the applicants, as a matter of law, could not recover the relocation costs claimed.
The issue about the legality of parking trucks on the premises was not a determinative factor in the learned Adjudicator’s decision in allowing the respondent’s claim and therefore, it seems that nothing turns on this point in the appeal.
Therefore, leave to appeal is refused.