Davenport v Deserio [2021] QCATA 33

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Davenport v Deserio [2021] QCATA 33 PARTIES: ANDREW DAVENPORT (appellant) v MEEKEHLEH DESERIO (respondent) APPLICATION NO/S: APL191-20 ORIGINATING APPLICATION NO/S: MCDT 142/20 MATTER TYPE: Appeals DELIVERED ON: 11 March 2021 HEARING DATE: 19 February 2021 HEARD AT: Brisbane DECISION OF: Member Hughes ORDERS: 1. Leave to appeal granted. 2. The appeal is allowed in part. 3. The Tribunal’s findings of $1,500.00 as compensation of one-half the rent and $345.00 filing fee are set aside. 4. The Appeal Tribunal substitutes its own decision that Andrew Davenport pay to Meekehleh Deserio the sum of $2,644.00. 5. The appeal is otherwise dismissed. CATCHWORDS: LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – OBLIGATIONS, PROHIBITED MATTERS AND PROTECTION FOR LESSEES – RENT – where tenant claimed compensation – where findings of fact about condition of property and damages awarded based on evidence adduced at hearing – where Tribunal has mandate to deal with matters fairly, quickly and economically – where Tribunal will not usually disturb findings of fact on appeal – where findings open on the evidence – where appeal is not opportunity for party to reargue their case APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER -- 1 of 8 -- 2 EVIDENCE – IN GENERAL – where applicant applied for leave to appeal – where applicant sought to introduce evidence not adduced at first instance – where applicant did not explain why it did not file its material before original hearing – where evidence had little evidential weight and unlikely to affect outcome - where evidence should not be admitted APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – DENIAL OF NATURAL JUSTICE – where amount awarded not claimed – where appellant not given opportunity to respond or present rebuttal evidence - where Tribunal failed to provide adequate reasons for decision - where failure to give adequate reasons amounted to denial of procedural fairness – where errors of law for which leave should be granted to correct substantial injustice Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 28, s 121, s 143, s 146 Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 185 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39 Cachia v Grech [2009] NSWCA 232 Chambers v Jobling (1986) 7 NSWLR 1 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 Coulton v Holcombe (1986) 162 CLR 1 Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226 Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 Hayward & Anor v LJ Hooker Longreach [2013] QCATA 221 Kioa v West (1985) 159 CLR 550 Mataitini v North Shore Realty Sunshine Coast [2020] QCATA 154 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 -- 2 of 8 -- 3 Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611 Mistero Pty Ltd v Cann [2017] QCATA 56 Phu v NSW Department of Education and Training [2010] NSWADTAP 76 Piric & Anor v Claudia Tiller Holdings Pty Ltd [2012] QCATA 152 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412 Rogers v The Queen (1994) 181 CLR 251 Slater v Wilkes [2012] QCATA 12 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: Self-represented REASONS FOR DECISION What is this appeal about? [1] An adjudicator ordered Andrew Davenport to pay his former tenant, Meekehleh Deserio, the sum of $4,489.00 as compensation for breaching obligations to ensure the premises were clean, fit to live in, in good repair and not contravening health and safety laws as follows:1 (a) $515.00 – hire truck; (b) $100.00 – petrol; (c) $753.00 – storage; (d) $500.00 – food; (e) $100.00 – water; (f) $676.00 – utility; (g) $345.00 – QCAT lodgement claims; and (h) $1,500.00 – rent reduction. [2] Mr Davenport seeks the Appeal Tribunal’s leave to appeal the Tribunal’s decision.2 Mr Davenport did not frame grounds of appeal, but instead inserted in his Application for leave to appeal: 1 Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 185(2). 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 143(3). -- 3 of 8 -- 4 Repeats (sic) Breaches of Sect (sic) 216 & 217 to quash previous decision of awarding Meekeleh (sic) Deserio $4489 and instead award me $38703 [3] The appeal process is not an opportunity for a party to again present their case.4 It is the means to correct an error by the Tribunal that decided the proceeding.5 Mr Davenport did not file any counter-claim before the original hearing, denying the tenant the right to give evidence in response.6 He cannot now make a new claim as part of this appeal: … if a party fails to raise an issue although he or she might reasonably have done so, there may well be a true estoppel which precludes that party from raising it in later proceedings.7 [4] Mr Davenport had an opportunity to present his case, including any counter-claim, at the original hearing. An application for leave is not an occasion to re-try the case presented at trial, as if the latter were a mere ‘preliminary skirmish’.8 The onus was always upon Mr Davenport to present his case and bring all relevant material and witnesses to the hearing. [5] Apart from this, Mr Davenport’s application for leave to appeal essentially sought to re-argue his case by focusing on the Tribunal’s findings of fact, attaching numerous documents to his appeal including text messages, photographs and excerpts from what are described as “affidavits”. [6] Mr Davenport did not identify which of the attachments were provided at the original hearing. To the extent that the attachments are fresh evidence, they are not admitted. This is because the Appeal Tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce fresh evidence must satisfy three tests:9 (a) Could the parties have obtained the evidence with reasonable diligence for use at the trial? (b) If allowed, would the evidence probably have an important impact on the result of the case? (c) Is the evidence credible? [7] Mr Davenport did not provide any explanation for why he did not provide his fresh evidence at the original hearing. Mr Davenport had an obligation to act in his own best interests, including providing all evidence to support his denials and any counter- application at the original hearing: 3 Application for leave to appeal or appeal dated 13 July 2020, Parts C and D. 4 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39, [9]. 5 Ibid. 6 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, 602. 7 Rogers v The Queen (1994) 181 CLR 251, 274-275 (Deane and Gaudron JJ). 8 Mataitini v North Shore Realty Sunshine Coast [2020] QCATA 154, [12] citing Coulton v Holcombe (1986) 162 CLR 1, 7. 9 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, 408. -- 4 of 8 -- 5 The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, “… the public as a whole, not merely the parties to the proceedings”. Finality in litigation is highly desirable, because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties.10 [8] This alone is sufficient to not allow the fresh evidence. However, even if the fresh evidence were admitted into evidence, it has little evidential weight and is unlikely to affect the outcome of the case. Many items are not dated. Their relevance is questionable at best. [9] To arrive at his decision, the learned Adjudicator made findings that the premises were not fit to live in, were not in good repair and not properly cleaned and maintained, and in breach of health and safety laws. These are findings of fact. The Appeal Tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.11 An appellate tribunal may only interfere if the conclusion is ‘contrary to compelling inferences’ in the case.12 [10] Although the learned Adjudicator did not expressly refer to every item of evidence when delivering his findings, it is implicit that he preferred Ms Deserio’s evidence supported by the documents she presented, over Mr Davenport’s evidence for the compensation awarded. Having heard the evidence of both, the learned Adjudicator was in the best position to assess credibility. It is not an error to prefer one version of facts to another.13 [11] At most, the attachments to Mr Davenport’s application allow the drawing of possible alternative inferences. But they do not prove this. Attempting to explain away each of the Tribunal’s findings with a possible alternative inference does not demonstrate error. A decision cannot properly be called erroneous, simply because the Tribunal preferred one conclusion to another possible conclusion.14 An application for leave to appeal is not and should not be an attempt to reargue a party’s case at the initial hearing.15 [12] The learned Adjudicator made findings about the condition of the property and awarded the tenant compensation based on the oral evidence of the parties, as supported by documentary evidence adduced at the hearing.16 Having considered material filed with the application and oral evidence from both parties at the hearing, the learned Adjudicator was in the best position to assess credit and make findings accordingly. 10 Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226, [13], citing with approval Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 217. 11 Dearman v Dearman (1908) 7 CLR 549, 561; Fox v Percy (2003) 214 CLR 118, 125-126. 12 Chambers v Jobling (1986) 7 NSWLR 1, 10. 13 Slater v Wilkes [2012] QCATA 12, [6]. 14 Ibid, citing Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611. 15 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39, [9]. 16 Transcript, page 1-18 to 1-20. -- 5 of 8 -- 6 [13] Nothing in the material or the transcript persuades the Appeal Tribunal the learned Adjudicator’s findings of fact were not open on the evidence. An appeal is not an opportunity for a party to simply re-argue its case on existing or additional evidence,17 or to simply conduct a retrial on the merits of the case.18 [14] The minor civil disputes jurisdiction requires the Tribunal to deal with matters fairly, quickly and economically.19 A party cannot expect a different outcome by simply re- arguing their case on appeal. Having read the transcript and considered the evidence, nothing persuades the Appeal Tribunal to depart from the Tribunal’s findings. The evidence was capable of supporting the Tribunal’s conclusions. [15] However, the Appeal Tribunal is satisfied that leave should be granted and the appeal allowed due to the following errors of law: (a) Denying procedural fairness by awarding compensation of $1,500.00 for one- half the rent in circumstances where it did not form part of Ms Deserio’s claim and no evidence was led about it; and (b) Failing to provide reasons for awarding the QCAT lodgement claim in circumstances where a fee waiver was applied to Ms Deserio’s original application.20 [16] The Tribunal must observe procedural fairness.21 Although the notion of procedural fairness is flexible, it fundamentally requires that a party is entitled to know the case against him or her and must be given a reasonable opportunity to respond.22 The Appeal Tribunal is satisfied that Mr Davenport was not given an opportunity to respond and present rebuttal evidence to rental compensation: it was simply not claimed. [17] Similarly, the reasons do not show the basis for awarding a lodgement fee in circumstances where a fee waiver was applied. It is an error of law for the Tribunal not to provide adequate reasons for its decision if it amounts to a denial of procedural fairness.23 A failure to give adequate reasons is a denial of procedural fairness if a party cannot be confident that the case was understood and properly considered.24 [18] While it is understandable that the learned Adjudicator sought to deliver reasons with economy and brevity, the emphasis on expedition and informality does not allow the Tribunal to pursue speedy resolution at all costs.25 In all proceedings, the Tribunal must still act fairly and according to the substantial merits26 of the case and observe the rules of procedural fairness.27 17 Piric & Anor v Claudia Tiller Holdings Pty Ltd [2012] QCATA 152, [12] (Wilson J). 18 Ibid. 19 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4. 20 Application for minor civil dispute – residential tenancy dispute dated 25 February 2020. 21 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(a). 22 Kioa v West (1985) 159 CLR 550. 23 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. 24 Mistero Pty Ltd v Cann [2017] QCATA 56, [10] (Senior Member Stilgoe OAM). 25 Hayward & Anor v LJ Hooker Longreach [2013] QCATA 221, [20] (Wilson J). 26 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(2). 27 Ibid, s 28(3)(a). -- 6 of 8 -- 7 [19] This means that the Tribunal must give proper reasons for its decision:28 Those reasons need not be elaborate, but they must contain three essential elements: appropriate and sufficient reference to the relevant evidence; the material findings of fact that were made (and the reasons for making those findings); and the applicable law and the reasons for applying it in the way expressed in the decision. It has also been said, in Queensland, that the crucial element is for the Tribunal to give reasons which disclose what has been taken into account in a way that means any error is revealed.29 Should the Appeal Tribunal grant leave to appeal? [20] Because this is an appeal from a minor civil dispute, leave is required.30 In determining whether to grant leave, the Tribunal will consider established principles including: (a) whether there is a reasonably arguable case of error in the primary decision;31 (b) whether there is a reasonable prospect that the appellant will obtain substantive relief;32 (c) whether leave is needed to correct a substantial injustice caused by some error;33 and (d) whether there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.34 [21] The learned Adjudicator awarded an amount not claimed. The reasons were inadequate. These are errors of law for which leave should be granted to correct a substantial injustice. Leave to appeal is granted and the appeal is allowed. [22] There was no basis to award rental compensation in circumstances where it was not claimed and evidence was not led. There was no basis to award a lodgement fee where it had not been paid. These were not issues for determination at the original hearing and therefore do not require a rehearing. The learned Adjudicator’s other findings were open on the evidence and therefore stand. [23] Mr Davenport also claimed his appeal filing fee of $691.60. Costs in the Tribunal are not awarded as a matter of course. Each party must bear their own costs,35 unless the interests of justice require the Tribunal to order a party to pay the costs of another party.36 There is therefore a strong indicator against awarding costs: 28 Ibid, s 121. 29 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [47] (Wilson J and Member Ford), citing Phu v NSW Department of Education and Training [2010] NSWADTAP 76 and Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430. 30 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a). 31 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 32 Cachia v Grech [2009] NSWCA 232, 2. 33 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 34 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, 577, 580. 35 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100. 36 Ibid, s 102. -- 7 of 8 -- 8 Under the QCAT Act the question that will usually arise in each case in which costs are sought is whether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s 100.37 [24] The Tribunal does not consider it in the interests of justice38 to depart from the usual position that each party must bear their own costs,39 in circumstances where leave to appeal has not been granted due to any failure by the tenant, the appeal was only partly successful and much of the material filed with the appeal was not relevant. [25] The Appeal Tribunal therefore sets aside the learned Adjudicator’s decision to award compensation of $1,500.00 for one-half the rent and $345.00 for lodgement fee and substitutes its own decision that Andrew Davenport pay to Meekehleh Deserio the sum of $2,644.00.40 The appropriate Orders are: 1. Leave to appeal granted. 2. The appeal is allowed in part. 3. The Tribunal’s findings of $1,500.00 as compensation of one-half the rent and $345.00 lodgement fee are set aside. 4. The Appeal Tribunal substitutes its own decision that Andrew Davenport pay to Meekehleh Deserio the sum of $2,644.00. 5. The appeal is otherwise dismissed. 37 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412, [29] (Wilson J). 38 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 102(1). 39 Ibid, s 100. 40 Ibid, s 146(b). -- 8 of 8 --