Cornell v Henderson [2013] QCATA 1

CITATION: Cornell v Henderson [2013] QCATA 001 PARTIES: Karen-Anne Cornell (Applicant/Appellant) v Scott Joseph Henderson (Respondent) APPLICATION NUMBER: APL176-12 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member DELIVERED ON: 3 January 2013 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal is refused. CATCHWORDS: Minor civil dispute – Bias – where applicant was in dispute with the legal firm in which the decision maker was previously employed – where allegation of bias by the decision maker because of previous relationship with the legal firm – where no evidence of recognition between the applicant and the decision maker – where no objection or issue taken by the applicant during the course of the original hearing – where challenge to findings of fact – where findings open on the evidence Queensland Civil and Administrative Tribunal Act 2009, s 142(3) APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION -- 1 of 6 -- 2 [1] Mr Henderson rented a room at Oxley Drive, Runaway Bay. The house was owned by Dr Kadrian and managed by the applicant Ms Cornell. There were other tenants in the house who rented rooms; they included Charlotte Burdett and Samuel Lim. [2] On 15 November 2011 Mr Henderson was given a notice to leave the premises immediately. The basis for the notice was, allegedly, his use and sale of illicit drugs. He did not leave the premises. [3] As Mr Henderson was absent from the premises on 17 November 2011, Ms Cornell put together his possessions and removed them to the carport at the back of the house. Mr Henderson then claims that his goods were taken by someone or stolen. Included were his laptop computer, personal photographs, personal clothing and a bag of tools. [4] As a consequence, he commenced a claim against the respondent for compensation in the sum of $4,311.70. By the time the matter came to hearing, the claim was in fact reduced to $4,086.00 because one of the missing items, his wallet, had been returned to him. Mr Henderson claims that his eviction was unlawful in that he was not given proper notice under the Residential Tenancies and Rooming Accommodation Act 2008 firstly, to remedy a breach of the tenancy agreement if there was one, and secondly a failure to give a notice to leave. [5] Ms Cornell contended that she acted lawfully under the Act because section 370 authorised her to give him a notice to leave immediately because she had a reasonable belief that he was using his accommodation for an illegal purpose, namely, using and selling illicit drugs. [6] The matter came on for hearing before a Tribunal Adjudicator on 29 February 2012. Both parties gave evidence and in addition, Ms Cornell called witnesses, Charlotte Burdett and Samuel Lim to give evidence about the circumstances of moving Mr Henderson‟s property from his room to the carport. They both provided statements of evidence to the learned Adjudicator however they did not give any oral evidence. Another witness, Dr Kadrian also provided a statement but his statement is of little value as it is based on hearsay in so far as it concerns Mr Henderson‟s property. He has no first hand knowledge of events. [7] Having heard from the parties, the learned Adjudicator reserved her decision and delivered it on 13 April 2012. She decided that Mr Henderson failed to satisfy her that Ms Cornell was responsible for the loss of any of his property and dismissed that part of his claim. She did allow compensation in the sum of $500.00 for emergency accommodation at a backpackers hostel and loss of wages. The assessment of loss was based on the evidence given by Mr Henderson and the failure to comply with the requirements of the Act. [8] In respect of the eviction, in her reasons she was critical of Ms Cornell‟s conduct because she failed to provide any probative evidence that Mr -- 2 of 6 -- 3 Henderson was engaged in the conduct alleged, acted on hearsay and unlawfully terminated the tenancy, which resulted in the loss incurred by Mr Henderson. [9] Mrs Cornell has filed an application for leave to appeal or appeal that decision. Leave to appeal is necessary as this is an appeal from a decision in the minor civil disputes jurisdiction of QCAT.1 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? [10] The grounds of appeal contend that the evidence before the learned Adjudicator ought to have satisfied her that Mr Henderson was engaging in an illegal activity for the purpose of section 370 of the Act. She also contends that issue is a question of law. The appeal also challenges findings of fact in that the learned Adjudicator made mistakes and ignored vital facts and evidence. A third ground of appeal is that Ms Cornell was denied natural justice and the learned Adjudicator was biased towards her. The allegation is a serious one and the particulars set out in the notice alleges that when Ms Cornell was a client of a firm in which the learned Adjudicator was employed, and she had a dispute with the firm about monies in a trust account. [11] Ms Cornell has provided submissions to the Tribunal in support of each of her contentions. In respect of the bias allegation, Ms Cornell sets out in more detail the basis of the allegation of bias and unfair treatment. It includes the fact that whilst the learned Adjudicator was employed with the law firm she made a complaint to the Queensland Law Society about the conduct of that firm and the dealing with her money in the firm‟s trust account. The Law Society appointed an officer to investigate the complaint. It follows that the complaint was of a serious nature. [12] Ms Cornell does not set out what happened as a result of the investigation and that is probably irrelevant in any event. However, because of these events and the relationship, Ms Cornell says that the learned Adjudicator must have recognised her, chose not to disqualify herself and proceeded to hear the matter. By not doing so in these circumstances gave rise to apprehended bias. [13] I have a transcript of the hearing of 29 February 2012. The transcript does not reveal any discussion between Ms Cornell and the learned Adjudicator that would indicate that there was any recognition between them. Ms Cornell did not raise the past relationship or any objection to the Adjudicator hearing the matter. There is no suggestion or evidence that Ms Cornell was prevented or interrupted from presenting her case and 1 QCAT Act, s 142(3). -- 3 of 6 -- 4 presenting the evidence of Ms Burdett and Mr Lim. She presented articulate submissions in support of her contention that she acted within the framework of the Act and also addressed, sensibly, on the lack of evidence in support of the claim for compensation as well as Mr Henderson‟s failure to mitigate his loss.2 There is nothing to suggest on reading the transcript that both parties did not have a fair opportunity to present their case. [14] It is against that background that one must consider whether or not there has been a denial of procedural fairness. In Wood v the Chief Executive, Department of Employment, Economic Development and Innovation3 the President set out a concise summary of how an allegation of bias should be approached: “[13] A reasonable apprehension of bias exists if a fair-minded lay bystander might reasonably apprehend that the decision-maker might not bring an impartial mind to the determination of the issues that he or she must decide. [14] There are two steps in the application of the test: identification of what is alleged that might lead the decision-maker to decide the case other than on its merits, and secondly, the logical connection between the matters identified and the feared digression. [15] Mere reference to a decision-maker‟s past decisions is insufficient to ground disqualification: there must be grounds upon which it might be thought that the particular decision-maker will not decide the case impartially. An adverse ruling against a litigant does not establish apprehended bias. If bias is not objected to at the time it is apprehended, the right to object may be waived.”4 [15] Here, the question of bias was not raised until the appeal was filed. As I have said there was no objection raised during the hearing and there is nothing in the transcript to indicate that the learned Adjudicator was not considering the matter on its merits. The reasons for her decision also demonstrate that she acted impartially, in particular she dismissed Mr Henderson‟s claim for compensation for loss of his chattels and found on balance that Ms Cornell was not responsible for that loss. Her criticism of Ms Cornell in the way she proceeded to evict Mr Henderson was a conclusion reasonably drawn from the evidence that was put before her. She found as a matter of fact that the evidence did not persuade her that Mr Henderson was in breach of section 370 of the RTRA Act and once that conclusion was reached, the actions of Ms Cornell in evicting Mr Henderson in the way that she did was contrary to the requirements of the Act. [16] I am not satisfied on the material that I have read including the submissions and the transcript that a fair minded lay bystander would 2 Transcript page 30. 3 [2011] QCATA 116. 4 Citations excluded. -- 4 of 6 -- 5 apprehend that the learned Adjudicator was not bringing an impartial mind to her determination of the issues she had to decide. [17] I would also say that the jurisdiction in which this matter was heard is a very busy jurisdiction. The Adjudicator at Southport would hear on average at least eight matters per day, at least four times per week over a year of approximately 45 weeks. There is nothing to indicate that there was any recognition between the learned Adjudicator and Ms Cornell and that, given the workload of the minor civil disputes jurisdiction this is not surprising. I am not satisfied that bias either actual, or apprehended has been made out and this ground of appeal is therefore rejected. [18] Ms Cornell also makes a complaint that the Tribunal made mistakes, ignored vital facts and evidence. The vital facts said to be ignored were that because Mr Henderson‟s evidence about loss of property was not accepted resulting in an adverse finding of credit, it is submitted that his claim for accommodation expenses and loss of wages should also have been rejected. Unfortunately, that is not a necessary consequence from that finding. Once the learned Adjudicator was satisfied that Ms Cornell acted unlawfully in terminating the tenancy agreement it was therefore reasonable for her to award the compensation that she did. There is no obvious error in this conclusion. [19] Ms Cornell also contends that the learned Member should have accepted that she acted reasonably in terminating the tenancy because of her reasonable belief that Mr Henderson was using the premises for an illegal purpose. Once again, the findings of fact on this issue by the learned Adjudicator are not open to challenge. The whole of the evidence relied on to reach the “reasonable belief” was based on hearsay evidence and in the absence of any probative evidence to establish the reasonable belief, the learned Adjudicator was entitled to reject the contention that he was using the premises for an illegal purpose. That conclusion was open on the evidence, and there is no reason for this Appeal Tribunal to interfere with it. Once that finding was made, there was no legitimate basis to evict Mr Henderson from the accommodation. [20] Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.5 An appellate tribunal may interfere, however, if the conclusion at first instance is „contrary to compelling inferences‟ in the case.6 [21] Essentially all of Ms Cornell‟s contentions challenge the findings and conclusions of fact by the learned Adjudicator. Having considered the evidence that was put before her, and her reasons I am unable to identify any error in the conclusions that she reached. I am not satisfied that Ms 5 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126. 6 Chambers v Jobling (1986) 7 NSWLR 1 at 10. -- 5 of 6 -- 6 Cornell was denied any procedural fairness. In those circumstances, leave to appeal is refused. -- 6 of 6 --