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  • Unreported Judgment

Simonova v Department of Housing and Public Works

 

[2018] QCA 60

COURT OF APPEAL

McMURDO JA

Appeal No 3402 of 2018

QCAT No 259 of 2017

MILKA SIMONOVA

Applicant

v

DEPARTMENT OF HOUSING

AND PUBLIC WORKS

 

Respondent

BRISBANE

TUESDAY, 27 MARCH 2018

JUDGMENT

McMURDO JA:  This is an application for a stay of orders made in the Queensland Civil and Administrative Tribunal, which affect the right of the applicant to remain in a residence at Currimundi, where she has lived since 2013. The respondent is the landlord, the Department of Housing and Public Works. It applied to terminate her occupation of the premises upon the ground that there had been objectionable behaviour, as that term is defined in s 297A of the Residential Tenancies and Rooming Accommodation Act 2008. The application was heard by Magistrate Tonkin, who granted the application, and made orders on 30 August 2017.

In particular her Honour ordered that the Residential Tenancy Agreement between the parties be terminated as from midnight on 10 August 2017, on the grounds of objectionable behaviour, that a warrant of possession issue authorising a police officer to enter the premises, and that the warrant take effect on 15 August, and remain in effect for 14 days, to expire on 29 August. She ordered that the warrant was to be executed as soon as reasonably practicable after taking effect. The applicant applied for leave to appeal against that decision to the Appeal Tribunal of QCAT. On 10 August 2017 Justice Carmody, in the Appeal Tribunal, ordered that the magistrate’s decision be stayed, pending the outcome of the application for leave to appeal, or the appeal to the Appeal Tribunal.

Subsequently the matter was argued before the Appeal Tribunal, again constituted by his Honour, and his decision was given in reasons dated 8 March 2018. The outcome was that, although leave to appeal was granted by his Honour in relation to some of the grounds, the appeal was dismissed on each of those grounds. The effect of that decision was that, the decision of the magistrate took effect, except that, with the passage of time, the orders which her Honour had made for the issue of a warrant required some variation. When the case was argued before Justice Carmody, his Honour was informed of the practical difficulties that would face the applicant, for reasons which I will discuss shortly, in the event that her appeal was unsuccessful, and she had to vacate the premises.

On 12 March 2018, that is to say a few days after the date of his Honour’s published reasons, his Honour made an order as follows:

“The Chief Executive of the Department of Housing and Public Works has leave to apply on seven days’ notice to [the applicant, that is, the present applicant] for orders to recover possession of the premises.”

On the 21 March, Crown Law wrote to lawyers acting for the applicant, advising that an application for the issuing of a warrant would be filed, but not until tomorrow, that is 28 March. The letter advised that the application, once filed, would have to be listed for hearing, and that at that hearing the present respondent would seek an order that a warrant for possession issue authorising a police officer to enter the premises. The warrant to take effect on a date to be inserted in the order, and to have effect for a period of 14 days. The letter further advised that the department would seek to have the warrant take effect no earlier than three days after the date of the order. The expected course in QCAT, if no order is made in this court in the meantime, is that QCAT would issue a warrant, that being required by s 350 of the Act, which provides by subsection 1 that:

“If a tribunal makes a termination order on an application made other than by a tenant, [the tribunal] also must issue a warrant of possession.”

The applicant’s circumstances must then be considered. The applicant is a 72 year old woman with psychiatric and physical disabilities. In particular she has chronic paranoid schizophrenia, suffers from post-traumatic stress disorder, and has certain physical disabilities. On her case, at least, her psychiatric disabilities are so severe that they sometimes deprive her of her capacity to control her actions. Her case before the magistrate and before his Honour was that her psychiatric condition is such that the conduct, which was relied upon by the department to constitute objectionable behaviour warranting the termination of her tenancy, was involuntary. From that she made two arguments, unsuccessfully, to the magistrate and then to his Honour.

The first was that the various types of conduct which can constitute objectionable behaviour according to s 297A, in each case must be conduct which is voluntary. The second argument is that if there is not that limitation on the words of s 297A, according to the first argument, it is a discretionary consideration for a tribunal which is asked to make a termination order on the ground of objectionable behaviour that the conduct relied upon was involuntary. The applicant’s complaint is, that the first of those arguments was wrongly rejected, both by the magistrate and by his Honour. And that the second of those arguments was not considered, at least by his Honour. A variant of that latter argument is, that if it was considered by his Honour, insufficient reasons were given, because the reasons, it is said, do not reveal a consideration of that argument.

There was consideration by the magistrate and by the judge, of the first argument, but, in the course of that, there did seem to be, at some points at least, a consideration of a related but a different question, which is whether there was an element of intention or recklessness involved, in each of the grounds for termination of a tenancy under s 297A. By s 297A(1)(c) there may be objectionable behaviour which would found a termination order where a tenant “has intentionally or recklessly endangered another person at the premises or interfered with the reasonable peace, comfort or privacy of a person occupying premises nearby.”  For the applicant, Mr Keim QC, leading Ms Hillard, concedes that the terms of s 345A(2)(c) and (d), sufficiently indicate that the words, “intentionally or recklessly” in s 297A(1)(c) govern only the words, “endangered another person at the premises”, and not the remaining words of that provision.

However, that is not, in itself, an answer to the applicant’s first argument. Accepting that there is no element of intention or recklessness required in respect of the result of an interference with the reasonable peace, comfort or privacy of a person occupying nearby premises, counsel for the applicant argued that, nevertheless, the conduct which results in that interference must be voluntary. That is the legal proposition involving the proper construction of s 297A, and therefore, it is sufficiently clear that there is a question of law which is raised by the proposed appeal to this court against the decision of the Appeal Tribunal of QCAT.

It is said that the ground lacks sufficient prospects of success for it to be a basis for the order which is sought this afternoon, which is an order which would prevent the issue of a warrant for possession, pending the prosecution of the applicant’s application for leave to appeal to this court, and if leave was granted, the appeal itself. In my view the argument, whilst not obviously compelling, is sufficiently arguable for it to be considered as a substantial ground of a proposed appeal, for present purposes. The point is not the subject of any decision of a court, I was informed by both counsel. The second of the alleged errors need not be separately considered. It is sufficient to say, that it is not obviously a stronger argument for the applicant than the first argument.

The present position is, that there has been an application for leave to appeal to this court, and the application for a stay is made on the basis of the court’s inherent jurisdiction to grant a stay, rather than under rule 361 of the Uniform Civil Procedure Rules 1999 or under s 152 of the Queensland Civil and Administrative Tribunal Act 2009. In Upton v Westpac Banking Corporation [2016] QCA 55, Justice Fraser, citing Cox v Mosman [1908] St R Qd 210, observed that the court has an inherent power to grant a stay in the circumstances. Although, there is not yet an appeal, as distinct from an application for leave to appeal which is before the court. I accept, as is submitted for the respondent, that, in this context, the circumstances must be exceptional before an order in the nature of a stay will be granted, pending an application for leave to appeal. In my view the circumstances here are exceptional.

The applicant’s vulnerability from her circumstances is immediately apparent. It is true that, for some time, she has been contesting the department’s efforts to terminate this tenancy, and that, in that way, she ought to have been aware of the prospect that she would be ordered to leave the premises, and would have to do so at the conclusion of her proceeding in the Appeal Tribunal. Nevertheless, it was not until earlier this month, that that decision was given. If no order is made here it is inevitable, as I see it, that QCAT would issue a warrant within a very short time from the filing of the department’s application to QCAT tomorrow. Clearly, she would be then evicted from the premises, well before any hearing of her application for leave to appeal, let alone her appeal. Were that to occur, well then, her tenancy would have been terminated.

It is true that success in her proposed appeal might see orders from this court restoring her position, prior to the termination order being made. But that assumes that the premises would still be available. I am informed that, although she would have some place to live if evicted from these premises, the circumstances are not such that she could be necessarily assured of accommodation there in the longer term. These considerations are only part of the circumstances, of course, to be considered, because it is obvious that, whether her conduct was voluntary or otherwise, it has caused considerable grief to those who occupy nearby premises, and no doubt has caused particular difficulty for the department, which must not only consider the interests of this tenant, but also the interests of others for whom it has a statutory responsibility to provide housing.

Nevertheless, the circumstances, in my view, warrant the intervention by this court, so that, with proper expedition, she can be permitted to prosecute her application for leave to appeal and any consequent appeal. The remaining question then is, precisely what order should be made. As I see it, there is no order to be made by way of staying the judgment of the Appeal Tribunal, which is dated 8 March 2018. That judgment simply dismissed the appeal from the magistrate. Subject to any further submission, the order I have in mind is that, pending the disposition of the application for leave to appeal to this court, and if leave is granted of any appeal to this court, or further earlier order, the respondent will not make application for the issue of a warrant of possession of the premises presently occupied by the applicant at 3A Alba Court, Currimundi.

Editorial Notes

  • Published Case Name:

    Simonova v Department of Housing and Public Works

  • Shortened Case Name:

    Simonova v Department of Housing and Public Works

  • MNC:

    [2018] QCA 60

  • Court:

    QCA

  • Judge(s):

    McMurdo JA

  • Date:

    27 Mar 2018

Litigation History

Event Citation or File Date Notes
QCA Interlocutory Judgment [2018] QCA 60 27 Mar 2018 Application for a stay of QCAT orders; ordered that, pending the disposition of the application for leave to appeal to the Court of Appeal, and if leave is granted of any appeal, or further earlier order, the respondent will not make application for the issue of a warrant of possession of the subject premises presently occupied by the applicant: McMurdo JA.

Appeal Status

No Status