Bamfield v Dunn & Anor [2022] QCATA 151

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Bamfield v Dunn & Anor [2022] QCATA 151 PARTIES: IAN RAYMOND BAMFIELD (applicant/appellant) v ALAN LOCKHART DUNN (respondent) NEDEA CAPALDO/DUNN (respondent) APPLICATION NO/S: APL058-22 MATTER TYPE: Appeals DELIVERED ON: 18 October 2022 HEARING DATE: 26 September 2022 HEARD AT: Brisbane DECISION OF: Judicial Member Murphy SC ORDERS: 1. Application for leave to appeal dismissed. CATCHWORDS: APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – appeal against Magistrate sitting as the Queensland Civil and Administrative Tribunal – appeal of residential tenancy decision – whether any of the errors of law asserted by the applicant are appealable errors – whether irrelevant considerations were taken into account – whether the applicant’s material is relevant LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – where the applicant and respondents had a residential tenancy agreement – where the applicant was given notice to leave without grounds – whether the notice for leave complied with the relevant requirements in the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) Housing Legislation Amendment Act 2021 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(1), s 142(3)(i), s 143(2)(b) Residential Tenancies and Rooming Accommodation Act 2008 (Qld) Act s 291, s 293 Bamfield v Zanfan Pty Ltd [2010] QCATA 1 Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Du Preez v Linda’s Homes Pty Ltd [2010] QCATA 2 -- 1 of 7 -- 2 Maksimiuk v Savage [2015] QCA 177 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 APPEARANCES & REPRESENTATION: 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 [1] Mr Bamfield rented residential premises in Far North Queensland from Mr and Mrs Dunn. The residential tenancy agreement governing that tenancy was signed by all three parties on 20 March 2021. [2] On 19 January 2022 a notice to leave without grounds in Form 121 was given to Mr Bamfield. He applied to the tribunal to set that notice aside.2 On 24 February 2022, a Magistrate sitting as the tribunal at Tully dismissed Mr Bamfield’s application. [3] Mr Bamfield applies for leave to appeal that decision.3 The Issues Before the Primary Tribunal [4] There were only two questions for determination before the learned Magistrate. First, did the notice to leave comply with the relevant requirements of the then s 2934 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (“RTRA Act”). It was (and is) uncontroversial that it did, and the learned Magistrate so found. [5] The second question confronting the learned Magistrate was whether the notice to leave contravened s 291(2) or (3) of the RTRA Act. [6] The learned Magistrate found that s 291(2)(a) of that Act did not apply: there was no evidence that Mr Bamfield had “applied, or [was] proposing to apply, to a tribunal for an order under [the RTRA] Act”. That finding was, with respect, correct and there is no apparent challenge to it. As to s 291(2)(b), it was uncontroversial that the notice was not given in circumstances where Mr Bamfield had “complained to a government entity” or “taken some other action to enforce [his] rights”.5 [7] Accordingly, the only controversial issue before the learned Magistrate concerned s 291(3) of the RTRA Act: was the notice to leave given as “retaliatory action against” Mr Bamfield? 1 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (“RTRA Act”) s 291. The notice was issued, and the proceedings instituted, prior to amendments to that Act by the Housing Legislation Amendment Act 2021 which, relevantly, came into force on 1 October 2022. 2 Pursuant to s 292 RTRA Act. Subsequently repealed by the Housing Legislation Amendment Act 2021(Qld) – see n 1. 3 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”) s 142(1) and (3)(i). By reason of the operation of a procedural order made by the tribunal on 15 July 2022, the application is heard on the papers. 4 Amended by the Housing Legislation Amendment Act 2021 (Qld) – see n1, above. 5 Documents filed by Mr Bamfield relating to a complaint to the Residential Tenancy Authority postdate the Notice to Leave. -- 2 of 7 -- 3 [8] Proper focus on that sole issue rendered irrelevant a large proportion of the historical grievances and disputation involving Mr and Mrs Dunn – and other people – contained in Mr Bamfield’s material before the learned Magistrate. The Asserted Appealable Errors [9] Established principles govern the grant of leave to appeal. The inquiry is directed to whether an arguable case of error attends the decision and whether the error has caused the applicant a substantial injustice.6 [10] Just as much of Mr Bamfield’s material before the primary tribunal was irrelevant, so too is the vast bulk of his material in this application for leave to appeal irrelevant to the even narrower present inquiry as to appealable error and substantial injustice.7 [11] As they appear in his Notice of Appeal, Mr Bamfield’s reasons for the granting of leave to appeal8 are: A COPY OF ALL MATERIAL TO BE RELIED ON AT THE HEARING BY THE RESPONDENT MUST BE GIVEN TO THE APPLICANT PRIOR TO THE HEARING COMMENCEMENT: This did not happen. Applicant received a copy of the Respondents reply after the matter had begun. The single set of documents from the Respondent were objected to being admitted to the court and or to be given any consideration to. The Magistrate did set aside the single set of documents submitted to the Court by the Respondent. Although set aside the Magistrate admitted to reading this unfiled material resulting in the Magistrate having a full knowledge of the Documents when making her decision. Plus other matters including verified untruthful statements from the Respondent under Oath. Attachment Marked “Attachment for Ian Raymond Bamfield – Appeal Decision. [12] The last-mentioned attachment outlines Mr Bamfield’s submissions. There are two other attachments: a “Verification of Residential Tenancy Authority Investigation” document and a “Supporting Patient Health Summary” dated 3 March 2022. The relevance of either to the issues under consideration is not apparent. [13] Within Mr Bamfield’s material, he appears to make assertions of procedural unfairness in the learned Magistrate’s process and assertions of other errors. The stated reasons for leave earlier quoted, together with such matters in Mr Bamfield’s written arguments as are relevant, appear to encompass asserted appealable errors which might be reframed and understood as: (a) The learned Magistrate’s conclusion that the notice to leave did not constitute retaliatory action was wrong in that it was contrary to the evidence or not open on the evidence before her. 6 For example, Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-400; QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 7 Examples include a reagitating of historical grievances and personal sleights on Mr and Mrs Dunn. 8 QCAT Act s 143(2)(b). -- 3 of 7 -- 4 (b) The proceedings were unfair to Mr Bamfield and he was not afforded natural justice by reason of the Magistrate taking into account evidence of which he had no prior notice and to which he had no reasonable opportunity to read and respond. (c) The learned Magistrate took account of irrelevant considerations, namely: (i) The decision in an earlier and unrelated matter involving Mr Bamfield, determined adversely to him by the tribunal in 2010; and (ii) The emotional state of Mrs Dunn when she was giving evidence by telephone. (d) The learned Magistrate did not accord Mr Bamfield procedural fairness, or failed to take account of relevant considerations, by her “not even [having] read, in its entirety, the Applicant’s application and attachments”. Is The Primary Tribunal’s Conclusion Wrong? [14] Authority directs that the learned Magistrate needed to be satisfied of actions by Mr and Mrs Dunn that were “responsive to [Mr Bamfield’s] acts, but also … unreasonable, excessive or vindictive”.9 [15] The ordinary meaning of the word “retaliate” is to “return like for like, especially evil for evil”. Accordingly, “retaliatory action” within the meaning of the sub-section “… connotes a causal connection between the initial act and the act said to be retaliatory and looks to the nature of each act, and the motivation of the second actor”.10 [16] Mr Bamfield particularised his case for “retaliatory action” in this way: 28. The Tenant [i.e. Mr Bamfield] believes that the Notice to Leave was issued in retaliation for resigning from his position with the Body Corporate representing the Lessor / Landlord, [ie Mr and Mrs Dunn] and although an extensive list of numerous fabricated and without evidence, breaches referred to against the Tennant is relied on to support the issue of the Notice to Leave, the reason given is NO GROUNDS No Proof or Witness statements / affidavits have been supplied and do not exist. 29. Further belief of retaliation against the Tenant by the Lessor / Landlord is the fact that when the Tennant was part of the body corporate representing the Lessor / Landlord the Tennant did ask for the current gardener (name unknown) for not doing the work he was paid to do under the Contract and Des Hardy the current Chairman to the Body Corp for allowing the gardener to avoid doing what he was paid to do. [17] As formulated by Mr Bamfield then, his case before the learned Magistrate turned on him establishing a causal connection between the notice to leave and asserted machinations involving the body corporate for the tenanted premises in which he asserted he held a position. [18] The learned Magistrate correctly found Mr Bamfield never held such a position. In the material in support of his application for leave to appeal, Mr Bamfield admits he 9 Du Preez v Linda’s Homes Pty Ltd [2010] QCATA 2 10 Bamfield v Zanfan Pty Ltd [2010] QCATA 1, approved in Maksimiuk v Savage [2015] QCA 177, at [13]. -- 4 of 7 -- 5 never held such a position.11 A central factual premise for his claim of retaliatory action immediately falls away. [19] Mr Bamfield does not particularise (either in the central assertions quoted above or otherwise in his extensive material) any actions by Mr and Mrs Dunn which are causally related to the issuing of the notice to leave. Nor does he offer any relevant evidence to that effect. Belief or speculation as to the imputed motive for the issue of the notice is of itself insufficient. [20] The s 291(3) requirement for the Notice to Leave to be “responsive to [Mr Bamfield’s] acts” is not satisfied either in the specific retaliation asserted by him or more broadly in his filed material. No case of retaliatory action within the meaning of s 291(3) of the RTRA Act was ever made out before the learned Magistrate. [21] The learned Magistrate’s conclusion was the only reasonable conclusion open on the evidence before her and, respectfully, was correct. Was Evidence Wrongly Taken Into Account? [22] The transcript reveals an attempt by Mr and Mrs Dunn to introduce evidence at the beginning of the proceedings. It is clear, as Mr Bamfield asserts, that this evidence had not been earlier filed. The learned Magistrate acknowledged that fact and immediately sought to ascertain if Mr Bamfield had received that material from Mr and Mrs Dunn. He told the learned Magistrate that he had not.12 [23] However, Mr Bamfield’s submissions in support of his assertion that he was denied procedural fairness in consequence of that either ignore or misapprehend what occurred in the proceedings subsequent to him advising the learned Magistrate that he had not received the material. [24] The learned Magistrate pointed out that the evidence upon which Mr and Mrs Dunn sought to rely was additional to their already-filed and served material.13 Having commented that the additional material was “essentially a repetition of what was already provided”14 and was, in any event, “not particularly relevant to this application”,15 the learned Magistrate determined to “just go ahead on what’s been filed prior to yesterday”.16 [25] The transcript reveals that this is precisely what occurred. Both during the proceedings and later in her oral reasons, the learned Magistrate explicitly made it clear that she had no regard to the additional material sought to be relied upon by Mr and Mrs Dunn.17 [26] Nothing to which Mr Bamfield has referred this appeal tribunal, establishes that, contrary to that assertion, the learned Magistrate did in fact have reference to that additional material. It is not otherwise apparent that that she did. 11 Submissions at “Page Five Cont”. 12 Transcript, p 4, 1.31. 13 Transcript, p 4, l.28: “the Dunns filed some more material yesterday…” [emphasis added]. The Dunns had already filed material responsive to Mr Bamfield’s initiating material. 14 Transcript, p 4, 1.32. 15 Transcript, p 5, l. 39. 16 Transcript, p 5, l. 40. 17 Transcript at, respectively, p 6, 1.1 and p 35, 1.23 -- 5 of 7 -- 6 [27] No error is demonstrated. Were Irrelevant Considerations Taken Into Account? [28] Although it is not entirely clear, it would appear Mr Bamfield asserts that Bamfield v Zanfan Pty Ltd,18 an earlier unrelated decision of the tribunal adverse to him, influenced in some erroneous manner, the learned Magistrate’s decision in the instant proceedings. 19 [29] The decision was referred to during the oral reasons20 solely as an authority relevant to the interpretation of s 291 RTRA Act. The reference to it was perfectly appropriate and correct: the decision (of the then President of the tribunal) has been referred to with approval by the Queensland Court of Appeal21 and frequently cited for that purpose. [30] No error is demonstrated. [31] The precise error said to arise from references to Mrs Dunn’s emotional state is neither properly articulated nor discernible. [32] The learned Magistrate refers to Mrs Dunn (in fact both Mr and Mrs Dunn) being upset during the proceedings – explicitly for transcription purposes as evidence was being given by telephone. The learned Magistrate’s her oral reasons also refer to “the upset caused to Mrs Dunn, particularly by the vile – what is described as vile and sexually explicit emails …” sent by Mr Bamfield.22 [33] No error is demonstrated. Did The Primary Tribunal Fail To Read Relevant Material? [34] The asserted failure by the learned Magistrate to read the entirety of Mr Bamfield’s material is entirely speculative and not supported by any relevant evidence. [35] The learned Magistrate told the parties on numerous occasions during the proceedings that she had read the parties’ material. The transcript, and the conduct of the proceedings revealed by it, readily support that assertion. [36] It is true that both during the proceedings and in her oral reasons, the learned Magistrate does not mention all the material filed by Mr Bamfield. There is no error in that omission unless it can first be demonstrated that evidence plainly relevant to the issue at hand has not been considered. Mr Bamfield particularises no such omission. The learned Magistrate’s failure to mention material wholly irrelevant to the issue to be determined should not be confused with her not having read that material. [37] No error is demonstrated. 18 [2010] QCATA 1. 19 See Mr Bamfield’s submissions, “Page Three Cont”. 20 Transcript p 35, 36 21 Maksimiuk v Savage [2015] QCA 177. 22 Transcript at, respectively, p 25, l. 5 and p 39, l. 47. -- 6 of 7 -- 7 Conclusion and Order [38] Mr Bamfield has not demonstrated an arguable case of appealable error productive of substantial injustice. [39] The application for leave to appeal is dismissed. -- 7 of 7 --