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Zhao v Tatters & Ors QCATA 10
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Zhao v Tatters & Ors  QCATA 10
ROBYN TATTERS OLIETA POUHA
CENTENARY REAL ESTATE PTY LTD
Claim T452-17 (Richlands)
29 January 2019
On the papers
Leave to appeal against the decision made on13 December 2017 in Claim T452-17 Richlands is refused. The appeal therefore fails.
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN NO APPEAL LIES – leave toappeal – where applicant had English as a second language but there was no interpreter at the hearing as she had requested in her application – where a telephone interpreter was arranged for the hearing at short notice but left before the decision was delivered with oral reasons – where applicant was given the respondents material in response at the hearing rather than beforehand – whether there was a breach of procedural fairness – whether any reasonably arguable grounds of appeal
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PROCEDURAL ASPECTS OF EVIDENCE – OTHER MATTERS –where Rule 44 of the tribunal rules require a response to an application ‘other than a minor debt claim’ to be made within a stated period of time – whether this rule applies to a minor civil dispute like a tenancy matter – whether presenting response material at the hearing of a tenancy matter was a breach of the rule
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 4(e), s 29, s 95, s 122(2), s 123
Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 43, r 44
Chandra v Queensland Building and Construction Commission QCA 335
Robyn Tatters: No appearance
Olieta Pouha: No appearance
Centenary Real Estate Pty Ltd: Self-represented
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
- This is an appeal in a tenancy matter heard by an Adjudicator on 13 December 2017 sitting in Richlands. The claim before the Adjudicator was brought by Wei Zhao as lessor against her former tenants, Olieta Pouha and Robyn Tatters. The lessor also brought a claim against the agents, Centenary Real Estate.
- The claim against the tenants was for compensation of $20,727.77 being:-
- Unpaid rent and damages for the period until actual recovery of possession, totally amount of $4,760.
- Compensation of water usage fee plus interest, totally amount of $2,908.97.
- Compensation of cleaning and repairing for $5,338.80.
- Compensation of unleased loss for the period of the repair, totally $6,720.
- Application fee and legal fee, approximately $1,000.
- The basis of the claim was that the fixed term of the tenancy was to continue to 17 October 2017 but was terminated early following notices to remedy and a notice to leave issued on behalf of the lessor. Complying with the notice to leave, the tenants vacated on 19 May 2017. It was said that the tenants had left the premises unclean and in disrepair and this caused a delay in reletting. Also, there was unpaid rent and unpaid water charges.
- The claim against the agents was stated in the application to be based on a breach of a duty of care, but it was amplified in the supporting statement and annexure prepared by the lessor’s lawyers, and was an allegation that the agents had been negligent in the way they performed their duties as property managers, in the manner stated, causing the loss now suffered by the lessor.
- In the claim, the lessor had applied to be legally represented but this was refused.
- At the hearing of the claim, the lessor and the agent appeared but only one of the tenants appeared. The Adjudicator decided to proceed with the hearing against the other tenant in his absence. Ms Tatters, the tenant who did appear, admitted that 8 weeks’ rent was outstanding at the time the premises were vacated, but said that it should partially be offset by the payment of the bond to the agents. She also agreed that the lessor was entitled to reimbursement for a cleaning bill of $750.
- The Adjudicator’s decision on the claim against the tenants was that it was reasonable to allow an additional period of one month from the date the premises were vacated, for the premises to be repaired and re-let. Over that one month period, the lessor was entitled to compensation for loss of rent. On that basis, he calculated the unpaid rent and compensation to that date as $7,120. He limited the claim for water charges to a six month period ending with the dispute resolution request, and on that basis found $1,610.11 to be owing for water. He accepted that $750 was due for cleaning as admitted by the tenant. He did not accept other costs which had been incurred by the lessor well after the end of the tenancy. As for the cost of repairs, the Adjudicator explained that without an entry condition report the lessor was in difficulty with this claim and although the evidence was otherwise insufficient to support the claim, he was prepared on an overall view to award a further $500. Together with the application fee of $326.80 the total came to $10,306.91. After deducting the bond which had been paid to the lessor, the amount of compensation to be paid by the tenants was $8,106.91.
- When dealing with the claim against the agents, the Adjudicator recognised that there may well be a jurisdictional difficulty for the tribunal to hear and decide the claim. But on the assumption that the tribunal did have jurisdiction to hear and determine it, the Adjudicator rejected the claim because the agents had managed the property in line with normal expectations and therefore could not be liable for any of the lessor’s loss. Although not stated in his reasons, no doubt the Adjudicator had in mind that the tenants were already in occupation of the premises when the agents were appointed as property managers – hence it was not their fault that there was no entry condition report.
- In this appeal, although the appeal notice and subsequent submissions have been prepared by lawyers on the lessor’s behalf, no formal order has been made permitting the lessor to be legally represented. Accordingly she is self-represented in this appeal.
- The grounds of appeal allege that there was a substantial injustice to the lessor because the tribunal failed to take reasonable steps to ensure the lessor’s understanding of the procedures of the tribunal, the nature of the assertions made and the reasons for the decision made, as required by of section 29 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
- More specifically, in ground 1 of the appeal, it is said that the tribunal should have arranged for an interpreter to attend the hearing. Despite the lessor having indicated on the application form that she required an interpreter in Mandarin, this was not arranged. Instead, a telephone interpreter was arranged for the hearing at short notice.
- Then it is said that the lessor had difficulty hearing the interpreter at the hearing because of the poor telephone connection.
- It is said that the interpreter had to leave the hearing before the end and so for the last 30 minutes of the hearing there was no interpreter. This included the time over which a decision was made by the Adjudicator, and when he was giving his reasons for the decision. It is said in the appeal notice that ‘the applicant was given little or no explanation for the decision made and she was still trying to figure out why the decision was made when the hearing was finished’.
- In submissions filed in the Appeal Tribunal, the lessor’s lawyers have further explained ground 1. They point out that section 29(2)(b) of the QCAT Act says that the steps that can be taken for ensuring a person understands something as mentioned include ‘(a) explaining the matters to the person; or (b) having an interpreter or other person able to communicate effectively with the person give the explanation; or (c) supplying an explanatory note in English or another language.’
- Ground 2 of the appeal is that the lessor was given insufficient time to read the material provided by the respondent. This was given to her at the hearing and had not been given to her beforehand. She was given only 30 minutes to read through it and prepare a reply, and this was an impossible task given her limited English and understanding of the law.
- It is also said under this ground that because the hearing had been transferred to Richlands from Brisbane at the request of one of the respondents she ‘was not given enough time to seek legal advice from her lawyers in relation to how to properly reply to the response’. It is suggested in the appeal notice that the hearing should have been adjourned to another date to permit the lessor to provide a proper reply rather than to rush the decision.
- In submissions filed in the Appeal Tribunal, the lessor’s lawyers have further explained ground 2. They point out that rules 44(2) and (3) of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (‘QCAT Rules’) require a response to an application to be filed and served within 28 days of the service of the application, and the lessor was therefore in breach of this rule.
- The submissions are that it would have been ‘an arduous task even for a properly trained legal mind to go through the bundle of response materials and prepare a proper reply within the time’ and so this was grossly unjust to the lessor who was a layperson with English as her second language.
- In their submissions in response filed in the Appeal Tribunal, the agents point out that their material was not a formal response covered by rules 44(2) and (3); instead they were merely submissions. They explain that the response was prepared by their solicitors. They point out that 30 minutes was a reasonable time for the lessor to read the document, which was 7 pages long, that when the hearing resumed the lessor confirmed to the Adjudicator that she had had enough time to read it and was happyto proceed, and that she did not request an adjournment (as is now suggested) in order to formulate a reply.
- They also say that the interpreter was effective during the hearing and the interpreter was discharged by the Adjudicator after checking with the lessor whether she wished to say anything further.
- Section 29 of the QCAT Act is a codification of many of the requirements of natural justice or procedural fairness, as they may apply in particular to the tribunal, and can be understood in the light of the tribunal’s aims to deal with matters in a way that is ‘accessible, fair, just, economical, informal and quick’ and the requirement that the tribunal is accessible and responsive to the diverse needs of persons who use the tribunal. It has been pointed out by the Court of Appeal that care must be taken to ensure that a party has a fair opportunity to deal with matters which potentially may be of importance to the tribunal in coming to a decision. The requirement of a fair hearing are not to be sacrificed to achieve economy, informality and speed.
- Those who have English as a second language will obviously differ greatly in how well they can read and understand documents in English, and how well they can understand and participate in a hearing.
- Some will have no or little English. For them, for there to be a fair hearing if they are not represented, the interpreter will usually need to interpret every step in the proceeding including the evidence, submissions and reasons for the decision. If any important documents written in English are presented at the hearing for the first time, they or at least the important parts of the document, will need to be translated. Where a party is represented it may be possible for parts of a proceeding to be conducted in English, with the party catching up with their representative later. If that is done, it will need to be with the party’s advance consent.
- At the other extreme, it is often the case that a party will ask for an interpreter because they believe that they will need help at the hearing with more complex expressions or technical or legal words. In such cases, it will be fair for the hearing to be conducted in English with the interpreter helping only if required.
- There are clearly many variations between the two extremes. For example it is sometimes the case that a person can converse quite readily in English but cannot read or write in English.
- To ensure a fair hearing, the decision maker needs to ascertain the ability of the person to use English and adjust the conduct of the hearing accordingly. The information for the decision maker about this will obviously come from the person themselves, but also from relevant written material, and sometimes from other participants in the hearing.
- In this case, in order to understand the lessor’s ability in English I have listened to the audio of the hearing and also read a transcript of the hearing prepared by Auscript. I was also able from the audio of the hearing to ascertain whether there was any difficulty with the telephone connection as suggested in ground 1 of the appeal.
- From the audio and the transcript, it is clear that the lessor’s English was of such a level that she was able to participate in the proceeding largely without the assistance of an interpreter, that she could read and understand written English, and was competent in spoken English with numbers, dates and fairly complex issues. Her pronunciation and use of grammar was sufficient to make herself understood and she was able to understand what others were saying and the questions asked of her.
- In particular, during the 30 minute break at the beginning of the hearing, the lessor was able to read and understand the material which had just been given to her despite them being in English. Just before the resumption of the hearing the lessor confirmed to the Hearing Support Officer that she was happy to proceed and confirmed at the resumed hearing directly to the Adjudicator that she had read them and was happy to proceed.
- Just before the 30 minute break, the lessor told the Adjudicator that she had expected an interpreter to be present. She said that it was ‘to help me with the terms’. This seems to accord with what was said in her application for leave to be legally represented: she said there that ‘There are certain legal grounds of the case that I will not be able to fully articulate myself even with the assistance of an interpreter’.
- On resumption of the hearing the tribunal had arranged an interpreter on the telephone. Prior to the interpreter being made available on the telephone the lessor had been able to take the oath without difficulty, and participate in the hearing properly. After the interpreter was available on the telephone the lessor participated in the hearing in the same way. Despite the interpreter being ready to assist, the lessor gave her evidence and made her submissions in detail almost exclusively without the assistance of the interpreter.
- There were only two occasions when the interpreter was needed. The first was when the lessor made a statement to the Adjudicator which was less than clear: the Adjudicator asked her to use the interpreter if she needed to. The lessor then made the statement again through the interpreter. The second occasion was when the Adjudicator asked the interpreter to explain a matter to the lessor which she did not appear to understand. It is notable it was the Adjudicator and not the lessor, who asked the interpreter to help on both these occasions.
- At the end of the evidence and the discussions about the issues, and just before the Adjudicator was ready to give his final decision, the interpreter had to leave the hearing because of another booking. The Adjudicator checked with everybody whether they had anything else to say and none of them did. Upon that, the Adjudicator released the interpreter. Ideally, the interpreter would have remained available in case anything needed to be explained to the lessor, but the Adjudicator was perfectly justified in not insisting on this, bearing in mind the interpreter’s booking, and the lessor’s sufficient grasp of English. Although the Adjudicator gave detailed reasons for his decision his reasons were very clear and it is very unlikely in the circumstances that the lessor failed to understand them. This is also indicated by the lessor’s question after the reasons had been given. She asked how she was able to enforce the order against the tenants. Although she did attempt to dispute the Adjudicator’s decision, she did not say that she had not understood what the decision was or how it had been reached.
- When considering the way in which giving reasons for the decision was handled by the Adjudicator, it must be taken into account that it is in the nature of the inquisitorial proceedings conducted by Adjudicators in applications of this sort that the evidence and submissions are tested as the hearing progresses. Usually by the time the decision maker gives reasons for the decision the factors which have influenced that decision have been fully aired and discussed with the parties. This makes it much easier to follow the decision maker’s reasons when they are given. This is what happened in this hearing too.
- It is also necessary to take into account the tribunal’s processes which ensure that decisions and the reasons for the decision are understood by the parties. These are important if a party is not present at a hearing. But they are also useful in a case where the party is present but for one reason or another does not fully understand the decision or oral reasons. The party may request written reasons for the decision. In satisfaction of such a request, the tribunal is able to provide a written transcript or an audio recording. This provides such a party with an opportunity to read or listen to the decision and the reasons for the decision at their leisure with the assistance of a translation if required.
Conclusion in the appeal
- The tribunal was in error in not arranging for an interpreter to be present as requested in the application. For the purposes of this appeal it is necessary to consider whether this omission was sufficiently corrected at the hearing. Having regard to the lessor’s demonstrated ability to understand both written and spoken English of some complexity, the attendance of a telephone interpreter for the main part of the hearing was clearly sufficient to ensure a fair hearing. Having listened to the audio of the hearing, I cannot accept that there was a poor telephone connection. It was very clear. And although ideally the interpreter would have remained in attendance when the Adjudicator gave his decision and reasons for the decision, releasing the interpreter was justified in the light of the prior booking, the lessor’s ability to use English and the process available to her to obtain a recording. Section 29 of the QCAT Act requires all reasonable steps to be taken to ensure those things mentioned in that section. Since nothing reasonable was not done, the tribunal’s duty under section 29 was satisfied. Accordingly there is no substance in ground 1 of the appeal.
- Ground 2 concerns the agent’s material given to the lessor at the hearing. It is most unfortunate that these submissions were not given to the lessor earlier. Potentially, this omission was capable of disrupting the proceedings to such an extent as to result in the rejection of the submissions altogether in an attempt to ensure that the hearing was fair, or alternatively to result in a postponement of the hearing. Again in deciding what to do, the decision maker has to balance the possibility of unfairness to one side or the other against the objective to deal with the application as speedily and fairly as possible. In circumstances such as this, the decision maker is entitled to rely on what is said by the potentially disadvantaged party concerned, unless there is a reason not to. One reason for this is that the decision maker will not know the extent to which the party has been taken by surprise by the new material. Quite often in cases of this sort, such submissions are not really ‘new’ at all. Often the arguments have been thoroughly canvassed by the parties in correspondence and/or discussions, for example during the conciliation process before the Residential Tenancies Authority. So where as in this case, the lessor appeared to be sufficiently competent to present her own case and stated that she had had sufficient time to read the material and was happy to proceed, it was reasonable and right for the Adjudicator to accept this at face value.
- I do not agree with the suggestion made in ground 2 of the appeal that Rule 44 of the QCAT Rules applies to the material given by the agents at the hearing. Rule 44 requires that a response to an application other than for a minor debt claim must be given to the applicant and filed in the tribunal within a certain period of time after the application has been made. Hence it is said in this appeal that the material given by the agents at the hearing was given out of time.
- Rule 44 does not apply to minor civil disputes at all. A tenancy matter within the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) is a minor civil dispute. Rule 43 applies to minor civil disputes. That says that a minor civil dispute cannot be responded to. Rule 43(2)(b) does permit the giving of evidence in writing or making submissions in a way allowed by section 95 of the QCAT Act (under which the tribunal must give a party a reasonable opportunity to give such evidence or make submissions). This is what happened in this case.
- Appeals in minor civil disputes can only be brought with the leave of the Appeal Tribunal. Such leave will only be given if there is an arguable case on appeal. Such appeals are only arguable if the decision maker is in error in law, or has made a factual finding which could not be made on the evidence and is of such importance as to require leave to be given. This is not the case here. Leave to appeal is refused and the appeal therefore fails.
Transcript 1-12 line 44.
Section 3(b) of the QCAT Act.
 Chandra v Queensland Building and Construction Commission  QCA 335, .
For copyright and costs reasons this transcript cannot be provided to the parties.
 Transcript 1-7 line 22.
 Transcript 1-6 line 16.
This appears from transcript pages 1-9 to 1-28.
Transcript 1-11 lines 1 to 10 (about the tenants leaving earlier than the end of the fixed term).
 Transcript 1-17 lines 2 to 6 (about a claim for the water charges being barred after six months).
Transcript 1-28 line 24.
 Transcript 1-31 line 42.
 This process can be seen here with respect to the lessor’s case from transcript 1-11 line 27 to 1-12 line 14 and 1-12 line 47 to 1-13 line 26 (about the elements in the claim); 1-4 line 1 to 1-17 line 20 (water charges); 1-17 line 22 to 1-22 line 13 (cleaning and repairs); 1-22 line 25 to 1-23 line 34 and 1-24 line 4 to 1-26 line 24 (other repairs and pool); 1-23 lines 36 to 47 (legal fees and consultant’s fee); 1-26 line 29 to 1-28 line 6 (agents’ liability to lessor).
Section 122(2) of the QCAT Act. The request must be made within 14 days of the decision taking effect.
Required by section 416 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) before a claim of this sort can be brought.
Schedule 3 of the QCAT Act definition of minor civil dispute.
- Published Case Name:
Wei Zhao v Tatters & Ors
- Shortened Case Name:
Zhao v Tatters & Ors
 QCATA 10
29 Jan 2019