Byrne v Clayfield College [2013] QCATA 60

CITATION: Byrne v Clayfield College [2013] QCATA 60 PARTIES: Kellie Louise Byrne (Applicant/Appellant) v Clayfield College (Respondent) APPLICATION NUMBER: APL183-12 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Dr J R Forbes, Member DELIVERED ON: 27 February 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused. CATCHWORDS: Residential Tenancies and Rooming Accommodation Act 2008 – employment contract - staff accommodation in boarding school – whether contract gives rise to a tenancy within the meaning of the Act – school’s discretion to require accommodation for other purposes - whether limited control of occupier consistent with tenancy – whether determinate period of occupancy granted Queensland Civil and Administrative Tribunal Act 2009, ss 3, 20, 28, 32, 123, 142,143 Residential Tenancies and Rooming Accommodation Act 2008, ss 34, 38, 146, 237, 288, 329, 433 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257 Drew v Bundaberg Regional Council [2012] QPELR 350; [2011] QCA 359 Felton and Anor v Raine and Horne Real Estate [2011] QCATA 330 Mann v Hamilton Island Enterprises Ltd [2012] QCATA 142 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 -- 1 of 7 -- 2 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Robinson v Corr [2011] QCATA 302. Fox v Percy (2003) 214 CLR 118 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 In Re W (an infant) [1971] AC 682 Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 Radaich v Smith (1959) 101 CLR 209 Western Australia v Ward (2002) 213 CLR 1 Rob Nichol Pty Ltd v Australia Nid Pty Ltd [2002] NSWSC 371 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 (“QCAT Act”). REASONS FOR DECISION [1] The Appellant Kellie Louise Byrne (“Byrne”) was employed by Clayfield College (“the College”) on April 2009 as Assistant to the Head of Boarding. An agreement in writing dated 8 December 2009 envisaged “tenure of five years subject to annual performance review”.1 [2] It was agreed that she would be provided with accommodation “where available (permanent or temporary) ... and [such accommodation] will be provided where available and according to the needs of the Boarding House”.2 [3] In late January 2010 Byrne moved into accommodation at the College consisting of a bedroom, kitchenette, bathroom and laundry (“the unit”). [4] By letter dated 15 March 2011 the College requested Byrne to vacate the unit by 1 April 2011. The writer explained that, while Byrne remained medically unfit for duty3, the unit was needed to accommodate “replacement supervisor staff”. In its place the College would “make available [to Byrne] ... one of the alternate sleep-over rooms”. [5] On 29 March 2011 Byrne refused to vacate the unit, asserting that her occupancy was governed by the Residential Tenancies and Rooming Accommodation Act 2008 (“the RTA”). 1 “Employment Contract” page 8, Annexure 1 to Byrne’s submission filed 28 March 2012. 2 Ibid. 3 Byrne states that she took sick leave from 10 January 2011 to 14 November 2011: Submissions filed 28 March 2012 paragraph 7. -- 2 of 7 -- 3 [6] The College responded: [T]here is no rental agreement with you in regard to any premises at Clayfield College. Certain premises within the College are made available to you in accordance with your contract of employment ... The needs of the Boarding House now dictate that your nominated accommodation be reassigned. ... If you have not removed your possessions by 5 pm on Friday 1 April 2011, we will arrange for them to be moved to your newly assigned room.4 [7] On or about 8 April 2012, Byrne vacated the unit, under protest.5 [8] The College gave her notice of termination of employment on 7 October 2011.6 [9] On 1 December 2011 Byrne began proceedings in the Tribunal alleging a residential tenancy dispute, seeking a declaration that she was entitled to the benefit of the RTA, and claiming $19,258.12 as compensation for loss of accommodation and “utility entitlements”, loss of meals during term, and removal costs. [10] The matter came on for hearing on 19 January 2012. Byrne then testified that the dispute had caused her “severe anxiety and depression”,7 but that is not involved in the present claim. After some inconclusive evidence and discussion, the hearing was adjourned for written submissions. The Adjudicator informed the parties that, when the hearing continued, he would “simply be relying on ... the evidence before [him] at that point”.8 [11] On 28 March 2012 the Adjudicator delivered an oral judgment, dismissing the application. [12] On 6 June 2012 Byrne filed an application for leave to appeal and for an extension of time for that purpose. On 29 June 2012 the Tribunal directed that both applications would be determined on the papers. [13] The grounds of appeal, in brief, are that the primary decision maker erred in finding that the RTA did not apply, that he took irrelevant considerations into account, and that he failed properly to apply section 433 of the RTA. [14] In support of, and in opposition to the application for leave to appeal, each party has filed a second set of submissions. Application for Extension of Time [15] It is appropriate to determine this procedural application before considering the substantive dispute. 4 Email Vilma Gallinaro (Business Manager) to Byrne 31 March 2011. 5 Submissions filed 28 March 2012 paragraph 18. 6 Submissions filed 28 March 2012 paragraph 20. 7 Transcript of proceedings 19 January 2012 pages 19-21. 8 Transcript of proceedings 19 January 2012 page 22. -- 3 of 7 -- 4 [16] The application for leave was filed some 9 weeks after the decision was delivered. In support of her request for an extension Byrne tenders a letter from the Tenants’ Union of Queensland, with submissions on her behalf. They claim that the appeal was lodged within the 28 day time limit because “she only received the audio recording of the reasons for the decision on 9 May 2012”.9 [17] The College does not dispute that claim. Nor does it argue that it would suffer prejudice or detriment if an extension were granted. The delay, if any, was for a relatively short time, and I am satisfied that the extension should be granted.10 Should Leave to Appeal be Granted? [18] There is no appeal as of right. The precondition of leave to appeal11 implements a legislative policy that, so far as justice allows, the primary decision in a Minor Civil Dispute should be final. This is not an opportunity for a retrial on the merits, or the reiteration of arguments that failed at first instance.12 It is not nearly enough for a party to express disappointment at the original decision, or a subjective feeling that justice has not been done.13 It is necessary to examine the original proceedings to see whether there is a reasonably arguable case of error which, if uncorrected, will result in substantial injustice to the applicant.14 Is there a question of general importance that should, in the public interest, be reconsidered on appeal?15 It is not appellable error to prefer one version of the facts to another, or to attribute more weight to the submissions of witness “A” than to those of witness “B”. Findings of fact will not usually be disturbed if they have rational, albeit debateable support in the evidence.16 Where reasonable minds may differ, a decision cannot properly be called erroneous, simply because one conclusion has been preferred to another possible view.17 Does the RTA Apply? [19] Byrne contends that the Adjudicator fell into error when, in the course of his decision, he said: 9 See QCAT Act s 143(5) “relevant day” and s 123. 10 QCAT Act s 61. 11 QCAT Act ss 3(b), 142(3)(b). 12 Contrast QCAT Act s 20 (review jurisdiction). 13 Robinson v Corr [2011] QCATA 302 at [7]. 14 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. 15 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580. 16 Fox v Percy (2003) 214 CLR 118 at 125-126. 17 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. -- 4 of 7 -- 5 But the basic agreement – as it appears from the evidence - ... is that of an employment agreement, with no application to the [RTA]. [20] The Appellant then refers to several sections of the RTA18 which express or imply that an employment contract may give rise to a tenancy under the RTA. In principle, no doubt, that is so; indeed the Tribunal found a “live in” employee to be a tenant in the special circumstances of Mann v Hamilton Island Enterprises Ltd19. But the criticism of the Adjudicator’s judgment pays insufficient attention to the phrase “as appears from the evidence”. The Adjudicator was not stating, as a universal proposition, that employment contracts and RTA rights are mutually or inevitably incompatible. He was simply deciding, on the evidence, that no tenancy was created in this particular case. In Mann, above, the learned President was at pains to point out that his decision turned on “the particular facts and circumstances of the ... occupancy”, and that other employees, even at the same workplace, could well be in a different position.20 [21] Byrne’s submissions to the Adjudicator allege several facts which, in her view, support her claim to a tenancy.21 She was the only occupant of the unit and (so she says) was in full control of it; she had her own keys, although entry was via the main boarding house entrance; she paid for “term time meals” in the boarders’ dining room, but supplied her own food at other times; she paid rent; she did her own housekeeping; whitegoods and furniture were supplied by the College, but she provided cooking utensils and some additional items of furniture; repairs and maintenance (such as repairs to laundry appliances) were the College’s responsibility. But ultimately she identifies as a “central” issue the “control exercised by the owner and the occupant” respectively.22 [22] The College’s initial submission23 refers to the fact (not disputed by Byrne) that entry to the boarding house, and hence to the unit, required her to activate a security system. But nothing turns on this point; the same applies to many owners of units in modern unit developments. [23] The College submits that it provided Byrne with meals in the boarders’ dining room,24 and paid for electricity, water and local authority rates attributable to the unit. No commencement or termination date was set for the accommodation, and no rent or bond was charged. The College retained a contractual discretion to subject Byrne’s continued occupation of the unit to the “needs of the Boarding House”.25 [24] On the other hand, according to the College’s Business Manager, Byrne’s “salary package” of $71,180 valued her accommodation at $250 per week, 18 Sections 34(2)(a), 38, 146, 237, 288, and 329(2)(g). 19 [2012] QCATA 142. 20 [2012] QCATA 142 at [32]. 21 Submissions “received” 23 March 2012 paragraphs 6(a)-(g), pages 8-9. 22 Ibid page 7. 23 “Received” 28 March 2012, dated 14 February 2012, 9 pages. 24 Initial submission page 3. 25 Ibid page 4. -- 5 of 7 -- 6 her meals at $7,980 per annum, and “utilities provided” at $100 per week, leaving a “cash component” of $45,000.26 [25] Both parties presented, as evidence27, advice they had received; Byrne relied on an opinion of the Tenants’ Union of Queensland, and the College on an advice prepared by its solicitors. But it was, and is, a matter for the Tribunal to base its decision on the facts of the instant case, insofar as they are available to it. [26] Byrne accepts28, as both the RTA29 and the common law30 emphasise, that a purported tenant’s degree of control over premises is crucial to the question of tenancy. That was clearly recognised by the Adjudicator, who decided, by reference to the contract and the realities of the case as he found them, that Byrne’s control of the unit was insufficient to bring her occupancy within the meaning and intent of the RTA, and that no other consideration listed in section 433 outweighed that conclusion. That was a finding of fact open on the evidence, and one that the Adjudicator was entitled to make. In itself, it was enough to decide the case. As already explained31, it is not for this appeal Tribunal to interfere with, or to “second guess” reasonable findings of fact by the primary decision maker. [27] According to the employment contract, the duration and security of Byrne’s occupation of the unit was at the sole discretion of the College – a discretion that the College, in the circumstances, exercised patiently and temperately. From the moment that Byrne accepted the College’s offer of employment, she was on notice that her accommodation was contingent upon availability, and that she might, at any time, be required to yield to “the needs of the Boarding House”. Or to put it bluntly: “You may stay until we ask you to leave”. No doubt it is possible to envisage a situation in which the occupant’s control of premises32 is more limited, and the owner’s control33 less inhibited, but instances do not readily come to mind. [28] Furthermore, the discretion retained by the College deprived Byrne’s occupancy of an essential element of tenancy, namely a determinate alpha and omega - an ascertained or ascertainable term, at the outset.34 An Irrelevant Consideration? 26 Letter 12 October 2010. 27 The word “evidence” is used in the non-technical sense that may be accepted in the Tribunal. 28 See paragraph [21], above. 29 Section 433(2)(a) and (b). 30 Radaich v Smith (1959) 101 CLR 209 at 214. 31 See paragraph [18], above. 32 RTA s 433(2)(a). 33 RTA s 433(2)(b). 34 Radaich v Smith (1959) 101 CLR 209 at 217; Western Australia v Ward (2002) 213 CLR 1 at [484], [694]; Rob Nichol Pty Ltd v Australia Nid Pty Ltd [2002] NSWSC 371 at [10]. -- 6 of 7 -- 7 [29] A subsidiary ground of appeal is that the decision was significantly influenced by an irrelevant consideration, namely the College’s references to practice and beliefs regarding staff accommodation in other boarding schools. This information, and particularly the opinion element, may very well have been excluded35 in a court bound by the rules of evidence, but those rules do not bind the Tribunal.36 It may receive and consider any information with some rational bearing on the issues. In my view the material complained of does possess that quality, albeit not abundantly. But in any event, the Adjudicator merely treated it as “reinforc[ing]” a decision made independently, and for reasons more pertinent to the RTA. There is no suggestion that this assurance should not be accepted, and I am by no means prepared to draw such an inference. Failure to Apply the Act? [30] This ground lacks substance and particulars. In fact, the Adjudicator referred to several sections of the Act, with particular and appropriate regard to the “control” factor in section 433. Conclusion [31] The decision under appeal raises no question of general importance. It deals with a particular form of contract, and particular set of facts. There is no evidence of wider legal ramifications. The Adjudicator’s decision was one that he was entitled to make, and should be allowed to stand. ORDER Leave to appeal refused. 35 As inadmissible “similar facts” and opinion. 36 QCAT Act s 28(3)(b). -- 7 of 7 --