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Hicks v Werna Investments Pty Ltd t/as Simons Letting Agency QCATA 188
Hicks v Werna Investments Pty Ltd t/as Simons Letting Agency  QCATA 188
Werna Investments Pty Ltd t/as Simons Letting Agency
On the papers
Senior Member Stilgoe OAM
2 December 2016
APPEAL – LEAVE TO APPEAL – LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – OBLIGATIONS, PROHIBITED MATTERS AND PROTECTION FOR LESSEES – INSPECTION AND REPAIR – where claim or compensation – where claim for cleaning costs – where tenants claimed premises dirty on entry – where tribunal ordered part compensation – whether grounds for leave to appeal
APPEAL – LEAVE TO APPEAL – PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – FILING DOCUMENTS AND ACCESS THERETO – where applicants had video evidence – where tribunal advised video evidence would not be accepted – where respondent filed evidence and did not forward copy to applicants – where tribunal read out part of evidence – where tribunal did not rely on balance of evidence after objection – whether tribunal denied procedural fairness – whether grounds for leave to appeal
Chambers v Jobling (1986) 7 NSWLR 1
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Kioa v West (1985) 159 CLR 550
Olindaridge Pty Ltd & Anor v Tracey & Anor
Pickering v McArthur  QCA 294
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
- For about two years, the Hicks family rented a home through Werna Investments Pty Ltd t/as Simons Letting Agency. There was no dispute that the home was old and a bit tired. At the end of the tenancy, Werna filed an application for compensation of approximately $6,000. The tribunal ordered the Hicks pay Werna $2,131.33.
- The Hicks want to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.
- The Hicks say the tribunal denied them procedural fairness by considering evidence from a cleaner which they had not seen and about which they did not have an opportunity to address the tribunal. They say they were denied the opportunity to present video evidence to the tribunal. They dispute the tribunal’s findings of fact. They say they did not have copies of documents on which the tribunal relied to make its decision.
Did the tribunal deny procedural fairness in considering the evidence from the cleaner?
- The fundamental principle of procedural fairness is that the Hicks were entitled to know the case against them. Further, a party is entitled to test the evidence relied on by the other side:
… it must ensure that if something is considered relevant credible and significant that the other party or parties have a proper opportunity to respond to it and test it in cross-examination.
- However, the concept of procedural fairness is flexible and varies according to the circumstances.
- The tribunal heard this dispute on three separate occasions. On the second day, 3 February 2016, the tribunal heard detailed evidence. There was a concession from Werna that, although a full bond clean was conducted, some parts of the house were clean. The tribunal wanted a statement from the cleaner to assess whether the Hicks should bear the full claim for cleaning.
- As the Hicks point out in their submissions, the tribunal read the cleaner’s report into the record. Susan Hicks, who appeared for all applicants at all hearings, disagreed with the cleaner’s report, stating, as she had before, that the house was filthy upon entry and that they had cleaned the house extensively before they left.
- In the circumstances, I am not persuaded that the tribunal’s failure to allow yet another adjournment of the dispute to enable the Hicks to cross-examine the cleaner amounted to a lack of procedural fairness.
Should the tribunal have allowed video evidence?
- The notes to the tribunal’s minor civil dispute forms make it clear that the tribunal does not accept electronic evidence in that jurisdiction.
- Ms Hicks did ask for an adjournment of the hearing on 6 January 2016 but it was not so that she could provide video evidence. There were two reasons for the adjournment: Ms Hicks was unwell and she wanted to submit some paperwork to the tribunal.
- Ms Hicks also asked for the hearing to be moved to Brisbane. She sent an email to the tribunal stating she did not live in the Redcliffe area any more, she was on a low income and working part time. She did not say that she wanted a transfer so that she could show video evidence.
- In an affidavit sworn 2 February 2016, Ms Hicks said she had a video of the exit condition but that she was aware there may not be time or facilities to play a video. She stated that, if the tribunal required the video, she would ‘get it to you in the format you need’. But Ms Hicks never filed any video evidence. She did, however, file photographs that she says were taken at the time of the Hicks’ exit from the premises.
- At the hearing on 3 February 2016, Ms Hicks told the tribunal that she had a video. She acknowledged, however, that she had been told that the tribunal would not have capacity to play the video. She also told the tribunal there was further evidence she wanted to send through to the tribunal. She did not send through anything that related to video evidence.
- On 9 February 2016, Ms Hicks wrote to the tribunal advising that she had ‘other evidence’ she wanted to put before the tribunal. She did not refer to video evidence in that email.
- Ms Hicks was aware that the tribunal would not take video evidence. She knew that before the hearing of 3 February 2016. She had assistance from QPILCH during the course of the proceeding, who could have advised her on the appropriate way to get video evidence before the tribunal. I am not persuaded that the tribunal erred in not allowing the video evidence.
Did the tribunal make errors of fact?
- The Hicks repeat submissions they made the tribunal that the facts do not support a finding that they left the house unclean. They repeat their assertions that the house was dirty when they took possession and that their photographs were date stamped whereas Werna’s were not.
- 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. An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.
- The tribunal told Ms Hicks that the fact her photos were dated did not add anything to her submissions. The tribunal looked at the entry condition report ‘very very’ carefully. The tribunal concluded that a photo of a dead mouse that Ms Hicks said was taken when they entered possession of the house was contradicted by the detailed terms of the entry condition report. It is apparent that this discrepancy affected the tribunal’s view of the Hicks’ credibility.
- Even so, the tribunal accepted that the house was not clean when the Hicks took possession. But it also found that the house was dirtier when they left. The evidence can support those findings and I can find no compelling evidence to come to a contrary view.
Did the tribunal rely on evidence that was not given to the Hicks?
- Ms Hicks states that the tribunal file has a 17 page document from Werna that contains emails between the lessor and agent in relation to the tenancy that the Hicks had not seen before the hearings. They make the point that the tribunal did not refer to those emails. Looking at them now, the tribunal’s failure to mention them is understandable: they are not relevant. The tribunal did ask Werna whether Ms Hicks had all the paperwork and Werna told the tribunal that she did. The tribunal was entitled to rely on that information.
- There is an email from Werna to the tribunal dated 10 February 2016. It contains the letter from the cleaner, which I have already dealt with. It also contains some photographs with a date stamp. Ms Hicks complained about the tribunal relying on those photographs and the tribunal, rightly, decided not to rely on them. The tribunal was not in error.
- There is no reasonably arguable case that the tribunal was in error. Leave to appeal should be refused.
QCAT Act, s 142(3)(a)(i).
Pickering v McArthur  QCA 294 at .
Kioa v West (1985) 159 CLR 550 at 584-585.
Olindaridge Pty Ltd & Anor v Tracey & Anor  QCATA 207 at .
Kioa v West ibid.
Transcript 3 February 2016, page 2-9, line 39 to page 2-12, line 4.
Transcript 3 February 2016, page2-45, lines 41 – 42.
Transcript 2 March 2016, page 1-7, lines 9 – 44.
Transcript 2 March 2016, page 1-7, line 46 to page 1-8, line10.
Transcript 6 January 2016 page 1-10, line 35 to page 1-11, line 42
Transcript 3 February 2016, page 2-3, line 19 to page 2-5, line 2
Transcript 2 March 2016 page 1-18, lines 8 – 9.
Transcript 2 March 2016 page 1-18, line 12.
Transcript 6 January 2016 page 1-5, lines 21 – 22.
Email Susan Hicks to the tribunal dated 18 December 2015; Email Susan Hicks to the tribunal dated 4 January 2016; Email Susan Hicks to the registry dated 6 January 2016
Transcript 3 February 2016, page 2-42, line 24; page 2-44, lines 14 – 16.
Transcript 3 February 2016, page 2-42, lines 25 – 26.
Transcript 3 February 2016, page 2-54, lines 29 – 31.
Affidavit of Susan Hicks sworn 2 February 2016.
Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
Chambers v Jobling (1986) 7 NSWLR 1 at 10.
Transcript 3 February 2016, page 2-45, lines 18 – 21.
Transcript 2 March 2016 page 1-4, lines 8 – 10.
Transcript 2 March 2016 page 1-4, lines 21 – 26.
Transcript 6 January 2016, page 1-4, lines 10 – 12; Transcript 3 February 2016, page 2-26, lines 20 – 22.
Transcript 2 March 2016 page 1-11, lines 20 – 26.
Transcript 2 March 2016 page 1-11, lines 28 – 31.
- Published Case Name:
Hicks v Werna Investments Pty Ltd t/as Simons Letting Agency
- Shortened Case Name:
Hicks v Werna Investments Pty Ltd t/as Simons Letting Agency
 QCATA 188
Senior Member Stilgoe OAM
02 Dec 2016