Cui v Kim & Ors [2014] QCATA 33

CITATION: Cui v Kim & Ors [2014] QCATA 033 PARTIES: Bing Cui (Appellant) v Clare Bella Kim Chia Hsiang Chen Nan Jun Ding (Respondents) APPLICATION NUMBER: APL523-13 MATTER TYPE: Appeals HEARING DATE: 20 February 2014 HEARD AT: Brisbane DECISION OF: Dr Forbes, Member DELIVERED ON: 28 February 2014 DELIVERED AT: Brisbane ORDER MADE: Leave to appeal is refused CATCHWORDS: APPEALS – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY DISPUTE – claim for return of bond or deposit upheld – counterclaim for rent owing dismissed – whether proceedings conducted according to natural justice – whether Tribunal sufficiently considered need for interpreter – whether appellant waived any such need – whether appellant’s oral submissions show sufficient grasp of English – whether appealable error – whether leave to appeal should be granted – leave refused Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20, s 32 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 61, s 62 Adamopoulos v Olympic Airways SA (1991) 25 NSWLR 75, cited Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33, cited Dairy Farmers’ Co-operative Milk Co Ltd v -- 1 of 5 -- 2 Acquilina (1963) 109 CLR 458; [1963] HCA 69, cited Determination Pursuant to a Reference of 27 February 1986 by the High Court unreported, Qld Sup Ct 16 November 1990, cited Drew v Bundaberg Regional Council [2012] QPELR 350; [2011] QCA 359, cited Felton & Anor v Raine and Horne Real Estate [2011] QCATA 330, cited Filios v Morland (1963) 63 SR (NSW) 331, cited Forbes v NSW Trotting Club Ltd (1979) 143 CLR 242; [1979] HCA 27, cited Gradidge v Grace Bros Pty Ltd (1988) 93 FLR 414, cited In re W (an infant) [1971] AC 682, cited International Professional Services v Tritone Nominees Pty Ltd [2011] QCATA 332, cited Mabo v Queensland (No 2) (1992) 175 CLR 1; [1992] HCA 23, cited Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611; [2010] HCA 16, cited QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257, cited Robinson v Corr [2011] QCATA 302, cited Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, cited Singh (Heer) v Minister for Immigration and Ethnic Affairs (1987) 15 FCR 4, cited 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 [1] On 7 November 2013 the Tribunal (Messrs Vickers and Barkley JJP) ordered that the appellant Cui (“the Landlady”) pay to the respondents (“the Tenants”) the sum of $312.20. The Tenants succeeded in their claim for a refund of bond moneys relating to rent and telephone expenses. [2] The Landlady now seeks leave to appeal. She does not directly challenge the Tribunal’s findings of fact or conclusions, but seeks to avoid1 the decision on natural justice grounds. 1 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367; Forbes v NSW Trotting Club Ltd (1979) 143 CLR 242 at 277. -- 2 of 5 -- 3 [3] In particular, the Landlady says that she was denied an opportunity to be heard, for want of a Mandarin interpreter. There is no doubt that it is a denial of natural justice to refuse a party the assistance of an interpreter when one is genuinely needed.2 Subject to appeal or review, it is for the tribunal to decide whether the party concerned is to be allowed to testify through an interpreter3 - a process not without disadvantages for opponents and adjudicators.4 [4] Here the sole ground of appeal is as follows: I was denied natural justice during the hearing as QCAT failed to provide me with an interpreter which I had requested.5 Proper Inquiry by the tribunal [5] I have read the record of proceedings6 carefully. At no stage did the Landlady indicate that she could not cope without an interpreter; she did not seek an adjournment for that purpose. On the contrary, these exchanges with the Tribunal occurred: Vickers JP: Yes, I’m not sure you needed an interpreter and we were not able to provide one. Have you understood what’s happened ... ? Ms Cui: Mainly I can understand, because I have seen the ... application form.7 Vickers JP: Can I just ask, though, do you feel you understand enough? I mean, we’ve got your written submission, but are you understanding enough for this to continue? Ms Cui: I think so, it’s okay.8 Vickers JP: You think it’s OK? Ms Cui: Yes, I think so.9 Vickers JP: ...So you feel you can continue? Ms Cui: Yeah, I think so. Appellant’s English speaking ability exemplified 2 Singh (Heer) v Minister for Immigration and Ethnic Affairs (1987) 15 FCR 4; Gradidge v Grace Bros Pty Ltd (1988) 93 FLR 414. 3 Filios v Morland (1963) 63 SR (NSW) 331; Dairy Farmers’ Co-operative Milk Co Ltd v Acquilina (1963) 109 CLR 458 at 464; Adamopoulos v Olympic Airways SA (1991) 25 NSWLR 75 (request properly refused). 4 Such as expense of time, extended opportunities to frame answer in cross- examination, possible assistance with answers. “On a number of occasions I soon gained the impression that the witness both understood and could speak English, but desired to collaborate with the interpreter as a form of social support [and] ... hear the question twice and [so gain] time to collect his or her thoughts and collaborate ... on an answer”: Determination Pursuant to a Reference of 27 February 1986 by the High Court unreported, Qld Sup Ct 16 November 1990 at 66 per Moynihan J. (Inquiry related to Mabo v Queensland (No 2) (1992) 175 CLR 1. 5 Application for leave to appeal filed 2 December 2013, Part C. 6 Transcript of hearing, 7 November 2013 (“Transcript”). 7 Transcript, page 10, lines 20-28. 8 Ibid, page 11, lines 1-5. 9 Ibid page 11 lines 31-34. -- 3 of 5 -- 4 [6] It is understandable that the Landlady sometimes had difficulty with English grammar, and the construction of sentences and subordinate clauses. Those are difficulties shared, more or less, by many people whose native tongue is English. Nevertheless, passages such as these exhibit a considerable English vocabulary, including some quite sophisticated terms: I checked my bank statement carefully. According to my bank statement Bella only paid me for rent every two weeks. I can’t find any record that Bella paid me for so-called bond or deposit. Bella said she made a cash payment of two weeks bond money. I don’t think it’s true because I always let my tenant pay me by NetBank. Never let me pay me by cash. Every NetBank translation – transaction from 1st November last year to 30 April this year, is in my bank statement ... Bella moved into my unit 7th November last year and paid me the first two weeks rental by NetBank. So... since Bella claimed that she made a cash payment of two weeks bond money I think she should show the, you know – the receipt or the bank record.10 Just oral agreement. Just – when they move in, they start to pay the rental and just if they want to move out, give me two weeks ahead of time to let me know.... And if I want them to move out, I gave them notice.11 When Bella and Ding Nanjun and Chen – I don’t know how to spell ... his name – she wrote me that they would move out in two weeks. They informed me at the same time by email and webchat... And what’s more, Bella send me very rude emails and insulting – insulting email – suddenly... 12 Okay, before the tenants move to my unit ... after they are inspecting, they can pay two weeks rent ahead of time ... When my tenants moved into my unit I always explained the house rules in details – in detail, especially the word deposit in the house rules ... 13 If Bella said I charge her bond or deposit... she should give evidence... I think physical evidence is the highest.14 [7] In the light of this evidence of the Landlady’s understanding of evidence, coupled with her repeated assurances that she could cope without an interpreter, I cannot accept that the Tribunal’s conduct of the far from complicated case was unfair. The alleged need for an interpreter has the appearance of an ex post facto claim by an unsuccessful litigant. [8] As I have noted, no other appellable error is suggested. The Landlady conceded that she did not create the records required by law.15 The Tribunal simply preferred the Tenants’ evidence to hers. That was a question of credit and fact that it was the Tribunal’s function to decide. It is not a decision with which this appeals tribunal should interfere, particularly when no error in fact finding or unreasonable inference is alleged. 10 Ibid page 12 lines 33-43. 11 Ibid page 13 lines 34-37. 12 Ibid page 14 lines 23-29. 13 Ibid page 19 lines 17-29. 14 Ibid page 29 lines 18-21. 15 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 61, 62; Transcript page 13 lines 31-34. -- 4 of 5 -- 5 Applications for leave to appeal - proper limits [9] An application for leave to appeal is not an occasion for a retrial de novo, or for “second guessing” of questions of fact or credit that are the province of the primary decision-maker. Indeed, the very requirement to obtain leave is to preclude attempts to retry cases on the merits,16 or to introduce evidence or arguments that might have been led in the first place, but were not. On such an application the question is whether there is a reasonably arguable case of error which, if not corrected, will cause substantial injustice to the applicant.17 It is not nearly enough for an applicant to express disappointment, or to entertain a subjective feeling that justice has not been done.18 Where reasonable minds may differ, a decision cannot properly be called erroneous, simply because one conclusion has been preferred to another possible view.19 Conclusion [10] The would-be appellant has not demonstrated any reasonably appellable error in the decision in question, and I discern none. The application for leave to appeal must therefore be refused. ORDER [11] The application for leave to appeal is refused. 16 Distinguish QCAT Act s 20 (review jurisdiction). 17 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257 at [6]; Drew v Bundaberg Regional Council [2012] QPELR 350; [2011] QCA 359 at [18]; Felton and Anor v Raine and Horne Real Estate [2011] QCATA 330 at [19]; International Professional Services v Tritone Nominees Pty Ltd [2011] QCATA 332. 18 Robinson v Corr [2011] QCATA 302 at [7]. 19 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at [131]; In Re W (an infant) [1971] AC 682 at 700 per Lord Hailsham; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1025. -- 5 of 5 --