Garrett v L J Hooker Cleveland
[2018] QCATA 134
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- Unreported Judgment
- Garrett v L J Hooker Cleveland[2018] QCATA 134
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Garrett v L J Hooker Cleveland[2018] QCATA 134
Garrett v L J Hooker Cleveland[2018] QCATA 134
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Garrett v L J Hooker Cleveland [2018] QCATA 134 |
PARTIES: | KARL GARRETT (appellant) |
v | |
L J HOOKER CLEVELAND (respondent) | |
APPLICATION NOS: | APL307-17, APL346-17 |
ORIGINATING APPLICATION NO/S: | MCDT168-17, MCDT230-17 (Cleveland) |
MATTER TYPE: | Appeals |
DELIVERED ON: | 11 September 2018 |
HEARING DATE: | 9 September 2018 |
HEARD AT: | Brisbane |
DECISION OF: | Dr J R Forbes, Member |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPLICATION FOR LEAVE TO APPEAL - GENERAL PRINCIPLES – RES JUDICATA – ANSHUN ESTOPPEL – ABUSE OF PROCESS – tenancy dispute – whether premises defective – whether compensation payable to tenant – whether splitting of cause of action – two applications for leave to appeal jointly determined Queensland Civil and Administrative Appeals Tribunal Rules 2009 (Qld), r 83 Residential Tenancies and Rooming Accommodation Act 2005 (Qld), s 414A Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Batistatos v Roads and Traffic Authority NSW(2006) 226 CLR 256 Coulton v Holcombe (1986) 162 CLR 1 Ebber v Isager [1995] 1 Qd R 150 Mansfield v Fokas [2018] NSWSC 249 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 Pickering v McArthur [2005] QCA 294 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 Tomlinson v Ramsey Food Processing Pty Limited (2015) 256 CLR 507 W In re (an infant) [1971] AC 682 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
Respondent: | Self-represented (by Ms C Young) |
REASONS FOR DECISION
The First Appeal APL307 of 2017
- [1]From 12 May 2016 until 11 May 2017 the appellant Karl Garratt (`Garratt’) leased and occupied residential premises at Cleveland. The respondent (`Hooker’) was the owner’s letting agent.
- [2]Garratt’s complaints about several aspects of the property generated a voluminous correspondence between him and Hooker and several applications by Garratt to the Residential Tenancy Authority. Eventually, on 1 June 2017 Garratt filed a Minor Civil Dispute against Hooker, as lessor’s agent.[1]
- [3]These proceedings have been conducted throughout by unrepresented parties. Understandably, the documents that serve as pleadings are inartificial and often lacking in particularity. However, by his initial application Garratt sought an order for `rent relief’, alleging `Loss of amenity, a service or facility’.[2] An annexure to the application listed several alleged defects, including `cracked tiles in the shower base’, mould in the shower recess and a defective hot water system.
Issues Defined
- [4]In an early exchange between Garratt and the adjudicator[3], the ultimate issue of sub-standard premises was distilled[4] into claims for compensation for these physical defects in the property: [a] cracked and sharp tiles in the shower; [b] a `mould issue’; [c] a `hot water issue’ and [d] cracked and sharp tiles on the edges of the patio. Garratt later confirmed that this list was `about it’.[5]
- [5]The Adjudicator proceeded to deal with those issues seriatim. In the event, Garratt was awarded compensation on all four, albeit not in amounts that he regards as sufficient. The `tiles in shower’ defect was assessed at $500, the `mould issue’ at $250, the hot water issue’ at $1,000, and $250 was awarded for the patio defects.
- [6]However, several claims by Hooker were set off against Garratt’s judgment for $2,000. Arrears of rent (not seriously disputed) amounted to $2365.72. Cleaning of the interior of the house (exclusive of carpets) was allowed at $400, carpet cleaning at $233, and tidying of the yard at $250: total, $3,248.72. But Hooker was by no means entirely successful; its claim for house cleaning was reduced by more than half, and there was another, smaller reduction to cleaning costs. Hooker’s claim for water usage was entirely disallowed. These decisions were accepted without protest on its part.
- [7]The nett result, in monetary terms, was as follows. Garratt was entitled to $3,840, including the return of his tenant’s bond. Hooker’s set-offs amounted to $3,248.72, leaving a balance of $591.28 to Garratt’ credit.
- [8]Certainly there were delays in attending to defects, but there was evidence, which the Adjudicator evidently accepted, that they were caused or contributed to by the uncooperative attitude of the tenant.
Outlays not recoverable in Tenancy Dispute
- [9]On the hearing of this appeal Garratt complained that some outlays which he regards as compensable were not considered, or not sufficiently considered by the Adjudicator. However, the Adjudicator properly treated them as not recoverable in the subject tenancy dispute, as the issues were defined. Garratt’s objections on this point, belatedly pressed on the second trial[6], were not raised at the first.
- [10]On the hearing of this appeal leave was given to tender invoices allegedly neglected at the trial. Just two invoices from Auscript for transcripts of evidence were produced. Those costs are considerable, but not recoverable. The costs recoverable in a Minor Civil Dispute proceeding (other than a minor debt claim) are severely limited[7]. At the first hearing, in fact, no application for costs was made.
- [11]No error of law or miscarriage of discretion in the selection of evidence has been demonstrated. Relevance was governed by the four issues set out above, and decisions on relevance were within the prerogative of the primary adjudicator.
- [12]Garratt is frankly disappointed with the modest proceeds of his action, but mere disappointment or dissatisfaction at a decision on quantum is not a ground of appeal.
Weight of evidence a matter for Adjudicator
- [13]An important factor in assessing compensation is the credit, or weight, of the claimant’s evidence. That is a matter for the primary judge, and an appeal court will rarely interfere. In this case it is apparent that the Adjudicator considered that aspects of Garratt’s evidence were hyperbolic. The tribunal was told of an experience that `ruined a year of my life’[8], a `disgraceful year spent in this property, all the time being harassed, bullied and treated arrogantly’ by Hooker’s staff.[9] But despite a perception that `the property was appalling when [he] moved in’[10] Garratt remained there for the full year of his tenancy.
- [14]A party seldom enhances his or her credit by casting aspersions on opposing parties or witnesses without strong supporting evidence. Garratt repeatedly accused Ms Cook, who represented the respondent, of lying and dishonesty.[11] He described invoices she produced as `falsified’.[12] `She deserves to be charged’ he added.[13] Particularly serious were several allegations of perjury against Ms Cook – two during the trial[14], and a third at the hearing of this appeal. Courts insist that charges of fraud must not be made in the absence of proper particulars and cogent evidence.
Applications for leave to appeal – requirements
- [15]A party seeking leave to appeal must show an arguable case that an error of law or miscarriage of justice has occurred, and that a substantial injustice will be done if it is not corrected.[15] An application for leave is not an opportunity to reargue issues of fact or credit. Within the bounds of rationality those are matters for the primary judge. The trial is not merely a `preliminary skirmish’.[16]
If there is evidence, or if there are available inferences which compete for the judge’s acceptance, no error of law occurs simply because the judge prefers one version of evidence to another or one set of inferences to another. This is his function. ... Even if the evidence is strongly one way the Appeal Court may not intervene simply because it reaches a different conclusion …[17]
- [16]The assessment of unliquidated damages or compensation involves an exercise of discretion. Where reasonable minds may differ, a decision is not erroneous simply because one conclusion has been preferred to another possible view.[18]
Conclusion
- [17]Garratt explicitly accepted that there were four defects in the property as leased.[19] On all four issues the Adjudicator found in his favour. Two set-offs claimed by Hooker were discounted, one quite substantially. Garratt maintains that the amounts awarded should have been larger, but that opinion is not a ground of appeal. Garratt has not demonstrated any reasonably arguable ground of appeal. Appeal 307 of 2017 must be dismissed.
The Second Appeal: APL346 of 2017
- [18]After the decision challenged in the first appeal was decided on 24 August 2017, Garrett instituted another Minor Civil Dispute on the same day. That action was dismissed on 21 September 2017. In this application Garratt seeks leave to appeal that decision.
- [19]In the second action Garratt sought:
[C]ompensation or damages - including illness and injury. Reimbursement for expenses due to faults and unsuitable entry condition.
- [20]The reasons given for these claims closely resemble complaints canvassed in the first action:
Cracked tiles in shower base caused laceration to feet. Mould caused breathing problems. Scaulding [sic] and burns caused by 75 degrees water temp. Illegal entry and bullying/harassment caused stress, anxiety and depression.
- [21]
I’ve got no jurisdiction in respect of any personal injury claim, illness or injury.[21] ... [M]y only jurisdiction is about those matters which concern the tenancy itself, the premises, the defects ... that sort of thing.[22] ... [T]he jurisdiction of the tribunal has been exhausted. The claim has been fully ventilated ... You can’t come back and keep asking for different things when you feel like it.[23]
Rights of action exhausted – abuse of process – the Anshun rule
- [22]In so far as the second set of claims is not beyond the tribunal’s jurisdiction, they attempt to extend the consequences or implications of matters already litigated. It is a firm principle of law – technically described as res judicata - that a claim once adjudicated may not be revisited in another action.[24] By the same token, claims may not be `split’ by claiming some of the results of a given event in one case, and other results of the same event in a later case.[25]
- [23]When the precise tests for res judicata are not strictly fulfilled, the doctrine of abuse of process – a broader concept – may apply.[26]
[A]buse of process is capable of application in any circumstances in which the use of a court’s procedures would be unjustifiably oppressive to a party, or would bring the administration of justice into disrepute.[27]
- [24]In my view the second claim by Garratt falls well within the area described in that definition.
- [25]Further, the present application faces the difficulty presented by `Anshun estoppel”.[28] That expression means that claims brought in action Number 2 that could reasonably have been included in action Number 1 may be dismissed. This is a classic Anshun case.
Conclusion
- [26]For the several reasons above the second action, filed on 24 August 2017 was hopeless, and the present application for leave is no better. It must be dismissed.
ORDERS
- [27]Application for leave to appeal numbered APL307 of 2017 is dismissed.
- [28]Application for leave to appeal numbered APL346 of 2017 is dismissed.
Footnotes
[1]Residential Tenancies and Rooming Accommodation Act 2005 (Qld) s 414A. According to standard term 43 of the lease (RTA Form 18a) the agent may represent the lessor in any application to a tribunal.
[2] There was also a claim for `payment of bond’ but that is no longer a issue.
[3] Transcript of hearing 24 August 2017 (“T.1”) page 3 lines 40-45; page 4 lines 1-13.
[4] `[W]e don’t need to jump all over the place’: T.1 page 5 lines 14 (Adjudicator).
[5] T.1 page 26 line 44.
[6] T.2 page 5 lines 1-3.
[7]Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r. 83 (the amount of any prescribed fee paid by the applicant on filing the application.)
[8] T.1 page 42 line 1.
[9] Annexure to application filed on 14 June 2017 page 1.
[10] T.1 page 28 line 1.
[11] T.1 page 14 line 23, T.1 page 22 line 11, T.1 page 24 line 15, T.1 page 29 line 25, T.1 page 15 line 21, T.1 page 33 line 19.
[12] T.1 page 31 line 32, T.1 page 50 line 25.
[13] T.1 page 49 lines 35-37.
[14] Submissions in Case No 2 page 2, second Notice of Dispute filed 21 September 2017 `purgery’ (sic).
[15]Pickering v McArthur [2005] QCA 294 at [3].
[16]Coulton v Holcombe (1986) 162 CLR 1 at 7 (per Gibbs CJ, Wilson, Brennan and Dawson JJ).
[17]Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151 per Kirby P.
[18]Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at [131]; In Re W (an infant) [1971] AC 682 at 700; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1025.
[19] T.1 page 3 lines 40-45; page 4 lines 1-13, T.1 page 26 line 44.
[20] Transcript of hearing 21 September 2017 (`T.2’)
[21] T.2 page 3 lines 2-3.
[22] T.2 page 3 lines 31-32.
[23] T.2 page 3 lines 40-41, 45-46.
[24]Mansfield v Fokas [2018] NSWSC 249.
[25]Ebber v Isager [1995] 1 Qd R 150.
[26]Tomlinson v Ramsey Food Processing Pty Limited (2015) 256 CLR 507 at 518.
[27]Tomlinson v Ramsey Food Processing Pty Limited (2015) 256 CLR 507 at 518-519 per French CJ, Bell, Gageler and Keane JJ. See also Batistatos v Roads and Traffic Authority NSW(2006) 226 CLR 256 at [6] and [15].
[28]Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.