Rosily v Gent[2024] QCATA 96

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   On 13 January 2023 the appellant filed in the Tribunal at Beenleigh an application for a minor civil dispute – residential tenancies dispute against the respondents, claiming a total of $9,202.20, largely for damages, and for payment of the rental bond of $2,000 in part satisfaction.^[1]  The matter came on for hearing before an adjudicator at Beenleigh on 9 May 2023, and at the end of the hearing the adjudicator ordered that the bond be paid, as to $500 to the appellant, and as to the balance, to the respondents.  No order was made about the balance of the appellant’s claim, but it follows from the transcript that it was rejected by the adjudicator.  The tenancy was governed by the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (“the Act”). 
2. [2]
   On 13 May 2023 the appellant filed in the Tribunal an application for leave to appeal from the decision of the adjudicator.  Submissions and extensive material was filed by the appellant, not only material which was before the Tribunal at first instance.  No submissions have been filed by the respondents.  The proceeding at first instance was a type of minor civil dispute, so the appellant requires leave to appeal to the Appeal Tribunal, whatever the ground.^[2]  Leave is usually only granted where there is a reasonable argument that there is an error which should be corrected and an appeal is necessary to correct a substantial injustice to the applicant,^[3] although it may also be granted when the application raises an issue of general importance on which the decision of the Appeal Tribunal would be useful.^[4]  The requirement for leave to appeal reflects a legislative intention that ordinarily parties to a minor civil dispute will be confined to one Tribunal determination of the dispute. 

Background

3. [3]
   On Monday 5 September 2022 the appellant and the respondents signed a General Tenancy Agreement in FORM 18a for premises at Eagleby for a period of just under twelve months, commencing that day, at a rent of $500 per week payable on the Monday of each week.^[5]  A rental bond of $2,000 was payable.  A pet was approved, one Staffordshire terrier. 
4. [4]
   I assume the agreement was prepared by the appellant.  Under the heading for the lessor, it gives the name of the appellant and a business name, Olimpark Real Estate; the part of the form for an agent’s details to be completed was not filled in.  It appears that the appellant was actually acting as a real estate agent, as she claimed at the hearing^[6] although she has also referred to herself as acting “on behalf of Talel Rosily” in the Application for leave to appeal.  Because of the Act s 206 it does not matter if she is the lessor or the agent, but it appears even from the terms of the agreement that the appellant does not have a good grasp of residential tenancy law. 
5. [5]
   The Residential Tenancy Authority wrote to the appellant on 7 October 2022 to confirm that it had received the bond of $2,000.  The authority also wrote to the appellant on 9 January 2023 to advise that agreement had not been reached on the bond dispute.  The effect of this is that a proceeding could be commenced in the Tribunal about the bond within seven days, as it was.^[7]  On the application, under part 2 – List of Claims, the appellant wrote:

1. Rent loss from 25/10/22$5,000
2. Receipt locksmith$594
3. Receipt security guard$60
4. Receipt security guard$50
5. Receipt electrician – repairs$354.20
6. Receipt repairs: letter box, clothes line, window$1,050
7. Receipt security guard$594
8. Receipt motor vehicle damage$1,650

6. [6]
   In Part 3 – List of Notices the appellant advised that on 1 November 2022 she had given a Notice of Breach in Form 11 for rent arrears, non-disclosure of dog and refused entry for condition report,^[8] said to have expired on 8 November 2022, and that she had given a Notice to Leave in Form 12 on 5 November 2022 for unpaid rent, expiring on 15 November 2022.  On its face the latter notice was invalid, since the right to give such a notice does not accrue until the time to remedy the breach in the Form 11 has expired.^[9]  If rent was due on 24 October and was not paid, the earliest a Form 11 could be issued was 1 November.^[10]  It appears from a bank statement also attached to the application, however, that a payment of $500 was in fact made on 25 October, so I suspect that the next rent was due on 31 October.  If that was the situation, and it would be consistent with the position of the respondent at the hearing, a notice to remedy breach issued on 1 November was certainly invalid. 
7. [7]
   As it happens however this does not matter much, because the respondents vacated anyway, apparently on 14 November 2022.^[11]  If the rent due on 31 October was not paid by them they owed rent for two weeks by then,^[12] but the adjudicator accepted the respondent’s admission that there was only one week’s rent, $500, owing, hence the amount of the bond paid to the appellant.  What is not clear is the basis on which the appellant claimed $5,000 for “rent loss”.  I suspect this included an amount for loss of rent until the application was filed,^[13] something I would not have thought was payable.^[14]  This was not a matter investigated at the hearing by the adjudicator.
8. [8]
   The claim for the cost of a locksmith was investigated, at least to the point of finding out that it was the cost of changing the locks.  The appellant said that the keys were not returned; the respondent said that they were posted back to the appellant’s post office box.  This appears to have been resolved by a general finding as to credibility against the appellant. 
9. [9]
   The amounts claimed for the security guard were not clearly explained either; I shall discuss this further when dealing with the conduct of the hearing.  The appellant had provided a copy of an account from an electrician in the amount claimed for replacing a broken “sensored flood light” in the car port, replacing three other light fittings and replacing seven lamps in the premises.^[15]  The respondent said that this was existing damage when they moved in, and had been noted on the entry condition report, but was not able to produce a copy of the report, which he said had been returned.  A copy of the first page of the entry condition report was attached to the application,^[16] but the whole report was not produced by the appellant either. 
10. [10]
    The remaining claim for repairs to the premises was supported by an invoice referring to reinstating the clothes line, the letter box, the bathroom window frame and the bedroom window security grill.  It was from a business called “Value Tax and Accounting Services Pty Ltd”, an odd name for a handyman service.  At the hearing the appellant appeared to be saying that she had repaired the clothesline herself,^[17] and it appears that this part of her claim was dismissed for that reason. 
11. [11]
    Finally the appellant claimed that when she attended the premises to serve the notice to leave the respondent was physically violent to her, and had damaged her vehicle with a garbage bin.  This is not something which the Tribunal has jurisdiction to deal with as a tenancy matter, although it may come within that part of the definition of “minor civil dispute” which covers a claim for damage to property caused by or arising out of the use of a vehicle.  The damage was not caused by a vehicle, but it may have arisen out of the use of a vehicle, unless the provision about “arising out of the use of a vehicle” applies to the person causing the damage.  This part of the claim does not appear to have been addressed by the adjudicator during the hearing, although each party said something about it.    

The hearing

12. [12]
    I have available to me both a transcript of the hearing, and a recording of the hearing, to which I have listened.  After the parties had announced their appearances, the adjudicator mentioned the claim for unpaid rent, and asked the appellant if she had a ledger there.  When the appellant referred him to the copy of the bank statement showing amounts deposited to the account, the adjudicator simply said that that was not a ledger: p 4.  Later he said that she could not prove an unpaid rent claim without a ledger, and said there was a requirement under the Act for one to be kept: p 8 line1. 
13. [13]
    It is true that the Act s 88(5) requires the lessor (or lessor’s agent) to make a written record of a payment of rent, called a “rent payment record”, a copy of which must be provided to the tenant on request, and provides a penalty for a breach of the obligation.  There are requirements for the content of the “rent payment record” in s 88(8), but there is nothing in the Act which requires this to be kept in the form of a ledger, although the Act, in s 93A(1) and s 105C(1), does contemplate that a rental ledger may be kept.^[18]  There is also nothing about a ledger in the Residential Tenancies and Rooming Accommodation Regulation, or for that matter in the Property Occupations Act 2014.  There is certainly no legal requirement that the only way in which to prove a claim for unpaid rent is by producing a ledger, or for that matter a “rent payment record”.  What matters is whether rent has in fact been paid, and what period it covers, something which can be proved by any relevant evidence.  This was the first error of law by the adjudicator. 
14. [14]
    There was a second, related error.  The adjudicator, by refusing to hear any submissions from the appellant in relation to this part of the claim, and by refusing to consider other evidence of what rent was owing and unpaid, breached the obligation, in the QCAT Act s 28(3)(a), to observe the rules of natural justice.  This was particularly unfortunate because it is apparent from the recording of the hearing that English was not the first language of the appellant, and it was not appropriate for the adjudicator to deal with that situation by being abrupt with the appellant. 
15. [15]
    The adjudicator then moved on to the claim for the locksmith, brought on the basis that the keys had not been returned.  The respondent was asked if he agreed that she needed a locksmith, and he disagreed: p 9.  He had earlier said (p 6) that he had sent the keys to the appellant’s post office box address.  This issue appears to have been resolved by the adjudicator simply by accepting the statement of the respondent.^[19]  There was no investigation of the claim to have posted the keys back.  If the respondents did not return the keys to the appellant at the end of the tenancy, this was a breach of the agreement Clause 38, and on the face of it the cost of changing the locks was recoverable as damages for breach.  But the claim was simply dismissed, without proper investigation.
16. [16]
    The adjudicator asked what the claim for the security guard was for, but cut off the appellant and moved on to the claim for the electrician before she had the chance to answer: p 10.  Another breach of the rules of natural justice.  As to the electrician, the appellant claimed that she had photographs of the damage, while the respondent claimed that he also had photographs and videos showing that the damage was present when the respondents moved in.  The adjudicator said he would not look at either party’s evidence,^[20] and appears simply to have accepted at face value the statement of the respondent.  That is not the way in which factual disputes should be resolved in the Tribunal.  Relevant evidence should not be rejected, and parties should be given the opportunity to respond to what appears to be adverse evidence.  These are requirements of the rules of natural justice. 
17. [17]
    The adjudicator then moved on to the claim for repairs to the clothesline etc, and the appellant said that she had photographs and videos of the damage, to which the adjudicator replied that he did not want to see them: p 10 line 44.  Since he went on to reject this part of the claim, this was a further breach of the rules of natural justice, in denying the losing party the opportunity to present relevant evidence in support of her claim.  The adjudicator then asked about who did the work, and the responses of the appellant were not clear.^[21]  He then asked whether there was a receipt for the cost, and when the appellant did not produce one, moved on.  Again, this reflects an error in approach by the adjudicator.  It is not the case that payments by the lessor can be proved only by production of receipts. 
18. [18]
    If the clotheslines (and the letterbox and windows) were in good order at the start of the tenancy, and at the end of the tenancy they were not, and the damage was neither fair wear and tear (which on the face of it is unlikely) nor something which under the Act it was the responsibility of the appellant to repair (which may well have been the case – this was another matter not investigated by the adjudicator), then on the face of it the appellant was entitled to the cost of repair or replacement of the damaged item, whether or not the work had already been done and paid for, as damages for breach of the agreement clause 37, and the Act s 188(4).   None of this was properly investigated by the adjudicator.  Admittedly the invoice for this work does strike me as odd, indeed suspicious, particularly in the light of the evidence of the appellant that she had herself undertaken superficial repairs to the clothesline, but as she was never given the opportunity to explain these matters, no adverse findings about them should have been made.  The adjudicator just failed, at a fundamental level, to engage with this claim. 
19. [19]
    The adjudicator then moved to the large claim for the security guard, who was present as a witness.  He was first questioned by the adjudicator, who found out that he knew the appellant personally before this matter, and then the adjudicator asked him if he was paid $594: p 12.  He replied that he was, and was then asked if he had his bank statement there; unsurprisingly, he said he did not.  The appellant offered to produce her bank statement, but the adjudicator refused to look at it, saying he wanted to see the statement of the security guard: p 13.  The following exchange then occurred:

Adjudicator: Do you mind giving evidence on oath?

Witness: Yeah.^[22] 

Adjudicator: Because I don’t think you’re telling me the truth, and there’s an enormous penalty …

(There was then an exchange between the adjudicator and the appellant.)

Adjudicator: I am asking you, sir, are you prepared to give evidence on oath that you received $594 from this woman for doing security guard work?  And sir, I can tell you that the penalty for not telling the truth under oath is serious.  You may not be leaving here today. 

20. [20]
    What happened here, in substance, was that the adjudicator told the witness that he did not believe the statement that he had been paid, and that if he gave evidence to that effect potentially the witness would be sent to prison that day.  Leaving aside the fact that the adjudicator had no power whatever to deal in such a way with a witness committing perjury,^[23] or for contempt of the Tribunal,^[24] this was the most blatant exercise in bullying the witness out of giving evidence on oath.  The witness was being told that if he repeated on oath what he had just said he could be sent to prison, because the adjudicator had already decided that such evidence was knowingly false. 
21. [21]
    Unsurprisingly, this approach of the adjudicator was effective in deterring the witness, and the exchange continued as follows:

Witness: I can’t prove it on oath.  I am sorry.

Adjudicator: No.  You tell me.  You look me in the eye …

Witness: Yeah.

Adjudicator: Because I know you didn’t receive it, okay? So you tell me, did you receive it or not sir? 

Witness: I don’t really know.

Adjudicator: No.  Thank you.  I know you didn’t. 

22. [22]
    The adjudicator, having decided, without any evidentiary basis, that the security guard had not been paid, despite his statement (not on oath) that he had, then refused to accept any material from the appellant, who had referred to her bank statement which may have shown that such a payment had been made by her,^[25] and indeed threatened to have the appellant put out of the hearing room: p 14.  He refused to hear her any further, and asked the respondent what his response was to the claims.  Apart from admitted that they owed $500 for unpaid rent, he denied that he had caused any damage or was otherwise liable for anything.  He also claimed that there was a “massive argument” to get the appellant to lodge the bond with the Residential Tenancy Authority: p 16. 
23. [23]
    The adjudicator refused to allow the appellant to respond to any of this, or even to look at her bank statement on line, commenting “I think you’re delusional.  That’s what I think.”: p 17.  He then proceeded to give brief oral reasons as follows:

This matter is 27 of ’23 in the Beenleigh District.  It is brought by Ms Rosily against [the respondents] for various amounts which add up to something like $9,202 Ms Rosily, I find as a matter of fact, for the record, if it is needed in the future, is a person who does not keep the appropriate records as is required by the Act, and for which a substantial fine is applied.  The amounts that are claimed by Ms Rosily are either false, incorrect or actually fanciful and made up by her.  They include receipts for matters for which the tenant is not liable and for which there is no proof, amounts for a security guard and a locksmith which are in identical sums and for which the security guard who is before the Court (sic) admits that he never ever received.  Ms Rosily is a liar …^[26] .. and she has attempted to mislead me on many occasions during this matter.  The matters are fanciful.  The tenant admits that he owes a week’s rent.  The bond of $2,000 will be paid as to the sum of $1,500 to the tenant and $500 to the landlord. 

24. [24]
    There was so much wrong with this that it is difficult to know where to start.  The finding that the appellant had not kept records required by the Act was not a matter before the Tribunal, which has no jurisdiction to decide whether an offence against the Act has been committed.^[27]  Such a thing was not ever alleged against her, and the adjudicator, having proceeded on the erroneous basis that the Act required her to keep a “ledger”, was in no position to decide whether the real requirements of s 88(5) had been complied with.  The allegation was never properly framed and put to the appellant, and she was never given a proper opportunity to defend herself.  The finding was not only gratuitous, it was pointless, because such a finding was not binding for any later proceeding in the Tribunal or a court, even between the same parties, let alone if the appellant had been prosecuted for such an offence.^[28] 
25. [25]
    The finding that the amounts claimed by the appellant were false, incorrect or made up was not properly made in circumstances where the adjudicator had never properly engaged with them, and had never given the appellant a proper opportunity to present her case on any of them.  The statement that the claims included matters for which the respondents were not liable may have in fact been correct, at least in some cases, but since the appellant was never given a proper opportunity to explain, and to seek to justify, her various claims, it is impossible for me, or anyone, to know.  The fact that the amounts supposedly paid to the locksmith and to the security guard were the same was never raised with the appellant in cross-examination, and it was not appropriate to make such an adverse finding when that had not occurred. 
26. [26]
    The finding that the security guard had admitted he had not received the relevant payment was without a factual basis.  The transcript shows that the security guard never made such an admission, despite the bullying of the adjudicator, and in those circumstances there was no basis for this finding, which appears to have been the basis for the finding that the appellant had lied to the Tribunal. 
27. [27]
    There was certainly no proper basis for that finding.  Apart from the fact that there was no material clearly to show knowing falsehood in anything the appellant had said, the proposition that some part of her evidence was a lie was never put to her, so there was a failure to comply with the rules of natural justice, and was also gratuitous, and another error of law.^[29]  I can see no basis whatever in the material for the statement that the appellant had attempted to mislead the adjudicator on many occasions.  Although some of the things she said do appear to have been incorrect, given what she said later, it is not apparent to me that all of them cannot be explained by the difficulties the appellant was having in understanding what was going on,^[30] and what she was being asked, because English was not her first language, and because she was clearly rattled by the behaviour of the adjudicator. 
28. [28]
    There is one other matter that I should say about the conduct of the hearing.  On several occasions during the hearing the adjudicator insisted that the appellant sit down and address the Tribunal from a sitting position.  It was obvious from the transcript that this did not come naturally to the appellant, and as the hearing went on the adjudicator became more aggressive in his insistence that the appellant remain seated.  Eventually this progressed to the point where he threatened to have her put out of the hearing room unless she sat down, and (presumably) stopped talking. 
29. [29]
    So far as I am aware there is no requirement of the QCAT Act or the Rules of the Tribunal, or indeed any practice direction,^[31] which requires parties to remain seated during a hearing.  Given the informal nature of the Tribunal, and the prevalence of litigants in person, there is no reason why a party appearing should not address the Tribunal from a seated position, but equally there is no reason why a party should not stand if the party feels more comfortable doing so.  In my opinion it was inappropriate for the adjudicator to insist that the appellant not stand to address him, and this was a further manifestation of the hostility the adjudicator displayed to the appellant during the hearing. 

Consideration – bias

30. [30]
    Among the grounds of appeal of the appellant are that it was a biased decision, that is, that there was bias against her on the part of the adjudicator.  An allegation of bias or apparent bias should be considered first, because if made out it means that there has not been a proper hearing at all.^[32]  The test for apparent bias is whether, in all the circumstances, a fair-minded lay observer with knowledge of the objective facts might entertain a reasonable apprehension that the Tribunal might not bring an impartial and unprejudiced mind to the resolution of the issues in the proceeding.^[33]  In the present case, there was a persistent one-sided approach to the resolution of issues between the parties. 
31. [31]
    Anything the respondents said was accepted without question, whereas every assertion of the appellant was doubted or subjected to requirements as to proof which had no legal basis.  The adjudicator repeatedly breached the rules of natural justice, and made gratuitous adverse findings against her, including accusing her of lying without any proper evidentiary basis.  He repeatedly refused to allow her to put in evidence to support her position.  He was inappropriately aggressive to her, despite her struggles with English, and when she tried to call a witness, pre-judged his evidence and bullied him out of taking the oath.  He cast aspersions on the appellant’s mental health, without any basis. 
32. [32]
    The hearing was as a result not conducted as required by the QCAT Act s 28(3)(a) (in accordance with the rules of natural justice) in many respects, nor the requirements in the QCAT Act s 28(2) that the proceeding be fair, in s 28(3)(d) to give the matters before the Tribunal proper consideration, or in s 28(3)(e), to ensure that all relevant material was disclosed to the Tribunal so as to enable it to decide proceedings with all relevant facts.  There was an almost comprehensive failure to comply with the QCAT Act s 29.  Overall, what occurred on this occasion was no more than a travesty of a proper hearing of the appellant’s application. 
33. [33]
    In those circumstances I have no hesitation in concluding that a fair-minded lay observer with knowledge of the objective facts might entertain a reasonable apprehension that the adjudicator did not bring an impartial and unprejudiced mind to the resolution of the issues in the proceeding.  Apparent bias is clearly shown.  Indeed, the adjudicator displayed such a depth of antipathy towards the appellant that I am prepared to draw the inference that he had actual bias against her.  Whether that was bias against the appellant personally, or whether this was a manifestation of a broader pro-tenant bias, I cannot tell without knowledge of the behaviour of this adjudicator in other tenancy matters. 

Conclusion

34. [34]
    It follows that the decision must be set aside, and that there be a new hearing before someone other than this adjudicator.  In those circumstances it is unnecessary for me to consider the other grounds advanced by the appellant, although it will be obvious from what I have said that I accept that there were also multiple breaches of the rules of natural justice.  I have recently, in Tuck v Kanti-Paul [2024] QCATA 57, said something about the application of the rules of natural justice in the context of a minor civil dispute hearing involving litigants in person.  I adopt without quoting what I said in that matter.  The only difference with this matter, in this respect, is that in that matter the breaches of natural justice impacted on both parties, and there was not the one-sided approach displayed in this matter.  I do not need to say anything about the other grounds of appeal. 
35. [35]
    Two matters concerned me a little about giving leave to appeal.  The first is that I suspect that, even if the appellant had received a fair hearing, the result might not have been very different.  I have already said something about my suspicion that most of the claim for unpaid rent would not have been recoverable.  It also appears that the appellant has an imperfect understanding of the law relating to residential tenancies, which suggests that some of her claims may not be valid.  It also has occurred to me that the explanation for the fact that the same two amounts were claimed for the locksmith and the security guard is that the latter paid the bill of the former, and was then reimbursed by the appellant.  If so, there is a duplication in the claim, since both amounts cannot be claimed.  I suggest that the appellant take advice about the details of this claim, and consider to what extent these claims are properly recoverable. 
36. [36]
    There is also the practical consideration that, even if the outcome of a proper hearing is more favourable to the appellant, the Residential Tenancy Authority will have obeyed the order of the adjudicator, so the balance of the bond is gone for ever, and there may be great practical difficulty in enforcing any more favourable decision against the respondent.  This is another matter the appellant might like to consider carefully before pursuing this matter further. 
37. [37]
    In the circumstances however the conduct of this hearing by the adjudicator was so unsatisfactory that the decision cannot be allowed to stand.  I give leave to appeal, allow the appeal, set aside the decision of the adjudicator, and remit the matter for rehearing before a person different from the adjudicator who conducted the first hearing.  I shall not name the adjudicator concerned, but his name is known to the President of the Tribunal, and I have drawn to her Honour’s attention my reasons in this appeal. 
38. [38]
    As to costs, the difficulty for the appellant is that the respondent was not responsible for the behaviour of the adjudicator, and I cannot make an order for costs against him.  In the circumstances I have concluded that, despite the appellant’s success in the application for leave to appeal and appeal, the prima facie position, that there be no order for costs, should not be departed from.^[34]  There will be no order for costs.