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Department of Housing and Public Works v Simonova

 

[2017] QCAT 328

CITATION:

State of Queensland through the Department of Housing and Public Works v Simonova [2017] QCAT 328

PARTIES:

State of Queensland through the Department of Housing and Public Works

(Applicant)

 

v

 

Milka Simonova

(Respondent)

APPLICATION NUMBER:

MCDT0204/16

MATTER TYPE:

Residential tenancy matters

HEARING DATE:

6 March 2017, 3 April 2017, 10 April 2017,
10 May 2017, 6 July 2017, orders made
20 July 2017

HEARD AT:

Caloundra

DECISION OF:

DELIVERED ON:

Magistrate Tonkin

30 August 2017

ORDERS MADE:

  1. The Residential tenancy agreement between the parties be terminated as from midnight on the 10.08.2017 on the grounds of Objectionable behaviour.
  2. A Warrant of Possession to issue authorising a police officer to enter the premises at 3A ALBA CT, CURRIMUNDI QLD 4551.
  3. The warrant shall take effect on 15.08.2017 and remain in effect for 14 days, to expire at 4:00pm on 29.08.2017.
  4. The Warrant to be executed as soon as reasonably practicable after taking effect.
  5. Entry under the warrant shall only be between the hours of 8:00am and 4:00pm.

CATCHWORDS:

LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – GENERALLY – termination for objectionable behaviour – state tenancy agreement – where tenant has history of failed tenancies due to noisy behaviour arising from mental illnesses – where tenant receiving medication and treatment but treatment ineffective to moderate behaviour – where tenant lacks capacity to control noisy behaviour – where Department delayed making application for termination – whether interference with neighbours’ reasonable peace and comfort so serious as to warrant termination  – whether Department took sufficient steps to sustain tenancy before bringing application

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 297A, s 345A, s 349A

Clarey v The Principal and Council of the Women’s College (1953) 90 CLR 170

Cutbush v Team Maree Property Service (No 2) [2010] QCATA 020

Elston v Dore (1982) 149 CLR 480

Lawler v Department of Housing and Public Works, State of Queensland [2017] QCATA 21

Norbury v Hogan [2010] QCATA 27

Oldham v Lawson (1976) VR 654

Sedleigh-Denfield v O’Callaghan [1940] 3 All ER 349

The State of Queensland through the Department of Housing and Public works v Frank Kimmel and Anor, unreported, QCAT, MCDT705/17, 26 April 2017

Vincent v Peacock (1972) 1 NSWLR 466

APPEARANCES:

 

APPLICANT:

Ms Renee Worsfold, Legal Officer, Department of Housing and Public Works

RESPONDENT:

Mr Julian Porter, Solicitor, Suncoast Community Legal Service Inc

REASONS FOR DECISION

The Legislation

  1. [1]
    This Tribunal has the power to terminate a public housing tenancy without the lessor giving a notice to leave the premises if the lessor proves objectionable behaviour by the tenant (s 297A).[1] Proof of behaviour falling within one or more of the following categories is sufficient to make out the ground of the application:
    1. harassment, intimidation or verbal abuse of a person occupying premises nearby;
    2. causing a serious nuisance to persons occupying premises nearby; and
    3. intentionally or recklessly endangering another person at the premises or interfering with the reasonable peace, comfort or privacy of a person occupying premises nearby.
  2. [2]
    The Tribunal must not only be satisfied that the ground has been made out, but also that the behaviour justifies terminating the agreement.
  3. [3]
    In making that determination, the Tribunal is not limited as to the matters to which it may have regard (s 345A(4)), however may have regard to the matters set out in s 345A(2), and must have regard to the matters set out in s 345A(3).
  4. [4]
    The optional matters in s 345A(2) are:
    1. whether the behaviour was recurrent and, if it was recurrent, the frequency of the recurrences;
    2. for behaviour in the form of harassment, intimidation or verbal abuse – its seriousness;
    3. for behaviour in the form of intentional or reckless endangerment – its seriousness; and
    4. for behaviour in the form of interference with a person’s reasonable peace, comfort or privacy – its seriousness.
  5. [5]
    The mandatory matters in s 345A(3) are:
    1. any serious or adverse effects on neighbouring residents or other persons, including whether neighbouring residents or other persons are likely to be subjected to objectionable behaviour if the agreement is not terminated;
    1. any evidence regarding the tenancy history of the tenant; and
    2. if the tenant is a tenant under a State tenancy agreement
    1. the department's responsibility to other tenants; and
    2. the needs of persons awaiting housing assistance from the State.
  6. [6]
    The Tribunal must not refuse to terminate the tenancy merely on the basis that the tenant is a public or community housing tenant.[2]
  7. [7]
    In Cutbush v Team Maree Property Service (No 2) [2010] QCATA 020, Justice Alan Wilson, President, discussed the concept of objectionable behaviour at [24]:

Objectionable behaviour in terms of s 297 must be looked at in context of the circumstances in which it occurred. The Macquarie Dictionary defines ‘objectionable’ as ‘unpleasant, offensive’.

Background

  1. [8]
    The State of Queensland through the Department of Housing and Public Works (“the Department”) makes urgent application for termination of Ms Simonova’s tenancy of premises at Unit 3A in a duplex in Alba Court, Currimundi on the basis of objectionable behaviour. The tenancy commenced on 18 October 2013.[3] A termination order was made in the absence of the tenant by an Acting Magistrate on 5 December 2016. A successful application was made for a stay of the order and for the re-opening of the application on 13 December 2016, and the matter remitted to this court for re-hearing.
  2. [9]
    The matter involves some complex issues and the parties have filed affidavits by numerous witnesses, so I granted them leave to be legally represented. The matter was next mentioned on 23 January 2017 and adjourned several times to enable Ms Simonova’s daughter Ms Krzeva, her attorney, to obtain legal representation for her mother. The hearing proper commenced on 6 March 2017 and was adjourned part heard to 3 April 2017,
    10 April 2017, 10 May 2017, and 6 July 2017, on all of which days evidence was heard, concluding with oral submissions. The matter was then adjourned to 20 July 2017 when an order was made for the termination of the tenancy on 10 August 2017, with a warrant to issue and take effect on 15 August 2017 for a period of 14 days and otherwise in the usual terms, with reasons to be published. These are those reasons.
  3. [10]
    Ms Simonova is an elderly trauma survivor from a non-English speaking background aged in her early 70’s, who has dual diagnoses of chronic paranoid schizophrenia and PTSD. She is currently receiving a new form of drug therapy whose likely success is as yet unknown.[4] She has painful arthritis as well as polyps on her vocal chords, for which she has declined surgical treatment. The latter causes her to speak in a loud penetrating monotone, variously described as “raspy”, “gravelly” and “mechanical”, “like a dog” and similar to the vocal tone of some hearing-impaired people. From the recordings I have heard in court I would describe it as “having a fog-horn like” quality. Samples of her voice are able to be heard on recordings made by her adjoining neighbours Greg Condon and Sue Mill.[5]
  4. [11]
    The report annexed to the Affidavit of Karis Ross,[6] social worker, helpfully sets out Ms Simonova’s social history, taken from an interview with her and her daughter.
  5. [12]
    In respect of her prompt payment of rent and her care of the premises, Ms Simonova is regarded as a model tenant.
  6. [13]
    She neither appeared at the hearing nor did she give evidence, so it was not possible for me to form any impression of her independent of the negative views developed over the past 3 years or more by her neighbours, and the assertions of her daughter Antoneta Krzeva that she is a very nice lady and that if the neighbours were only prepared to make an effort they would find that out for themselves.[7] She considers the neighbours and the Department to be picking on her mother. In relation to a request sent to her mother from Maroochydore Housing Service Centre to contact the centre, Ms Krzeva’s response is recorded as she “will not be dealing with the office and that her mother’s circumstances are not the department’s concern….that the department is only going to evict her, that society have it out for all of them and that she will not back down and (she) began abusing the officer until the officer terminated the call”.[8]  In response to a fact sheet about behaviour and a letter sent to Ms Simonova by the Department, giving her a right of reply, “Ms Simonova’s daughter contacted the Maroochydore HSC stating that her mother is not disruptive and that her neighbours are bullies just like the neighbours at her mother’s previous tenancy”.[9] 
  7. [14]
    Exhibit E, Review Summary – HARU REF C 1609-016 is a useful summary of the history during this tenancy, of the interactions between the Department, the complainants and various agencies and Ms Krzeva.
  8. [15]
    Ms Krzeva, in her capacity as her mother’s attorney, instructed Mr Porter, Solicitor of the Suncoast Community Legal Service Inc. She is her mother’s staunch and tenacious advocate, despite the fact that her mother has always subjected her to harsh criticism and their relationship is difficult.[10] They could not live together successfully. Her mother’s wish is to continue to live independently in the community and to be left alone. Ms Simonova apparently perceives herself as being constantly surveilled by the neighbours and is reported, unsurprisingly, to be stressed about her uncertain tenancy situation.
  9. [16]
    The case made on behalf of Ms Simonova largely relied on the evidence of Dr Pamela Hudson Jessup, her consultant psychiatrist, that she lacks voluntary control of her behaviours, so that her behaviour is accordingly outside the scope of the legislation.
  10. [17]
    Objectionable behaviour as a manifestation of mental illness, where the tenant lacks insight into the impact of their behaviour on neighbours, has been found by QCAT to be caught by the scope of the provisions relied on in the present case, and affirmed on appeal. The fact that the tenant would thereby likely be rendered homeless has not been a bar to the making of the termination order in such circumstances.[11]
  11. [18]
    Dr Pamela Hudson Jessup, consultant psychiatrist, sees her two to three times monthly and has treated Ms Simonova since May 2016. She gave her evidence by phone, called by Mr Porter for the respondent, and no affidavit was filed. Given that the mental health conditions from which Ms Simonova suffers appear to be the substantial cause of the behaviour complained of by her neighbours, and given the legal arguments relied on, Dr Jessup’s evidence is central to this case, so I recount it in detail. Her diagnoses and description of associated behaviours are:
    1. Chronic Paranoid Schizophrenia with well-systematised persecutory delusions relating to actual experiences, including a fear of physical and emotional abuse, and that her children will be abducted. She has a belief that children are being abused, suffers auditory hallucinations (more often at night) but also in the daytime. She will misinterpret her environment in a persecutory framework, e.g. noise is interpreted as somebody breaking in, or that she or somebody else will be hurt. When she is unwell, her thoughts appear disordered and jumbled. She is never without those symptoms and they are more pronounced when she is under stress or untreated. She has no insight and no capacity to make rational decisions about how to express herself. Her responses are automatic. 
    2. Post Traumatic Stress Disorder (“PTSD”). Due to her difficult life in Bulgaria, from which she was forced to flee with her twin daughters around 1974, she has a strong sense of mistrust of strangers and authority figures. This provokes a fear response when she feels threatened. She is more anxious, upset and agitated when not on her medication or in an environment with a high level of emotional expression/distress, e.g. people arguing or trying to coerce her to do things she doesn’t want to do.  The common treatments for PTSD are psychological treatment, Cognitive Behavioural Therapy, anxiety management and exposure therapy. 
  12. [19]
    Particular incidents in the past 12 to 18 months have heightened her experience of mental illness. They are the threat of eviction with the associated prospect of change in her environment or becoming homeless, increasing contact with services, exposure to regulatory authorities, and are unsettling for her. In the last year, she has had increasing contact with mental health services. In May 2016, her dog died, which was upsetting, so her daughters referred her to the Health Service where she commenced treatment by Dr Hudson-Jessup under an Involuntary Treatment Order, as she refused to engage in assessment or treatment and lacked capacity to consent. The daughters reportedly feared that her calling out was leading to complaints and the possibility of eviction.
  13. [20]
    She lacks the ability to modify her expression of distress, in contrast to a person who can display social containment of those emotions. For example, if she is angry, she’ll vocalise or demonstrate her anger, and display tearful or distressed behaviour. She interprets the pain she suffers from arthritis on waking as attributable to having been beaten up during the night. This is not an example of humour on her part, but rather a consistent delusional theme. Smoking is an important part of her life.
  14. [21]
    Currently she is receiving Paliperidone monthly by injection, and had had three treatments when Dr Hudson Jessup gave evidence. The drug is an anti-psychotic medication to manage the positive symptoms of schizophrenic delusions and hallucination, alleviate the distress associated with those symptoms, and assists the patient to organise their thinking better and therefore their behaviour. The doctor reported some improvement since the commencement of this treatment, however confirmed that even on the medication, she keeps experiencing delusions and hallucinations and responds to that. It is possible that she may experience an ongoing reduction in symptoms over time if the medication is given consistently over 6 to 12 months. This medication is not used to treat PTSD, but regulation of her schizophrenia may make her manage the PTSD better. She was non-compliant with the first two treatments and had to be removed to hospital for administration of the injections, however accepted the third willingly at home. She is able to be adequately treated in the community and Dr Hudson Jessup has assessed her as not presenting any danger to others. She has no history of violent behaviour. Whilst distressed in the ward at times, when unable to access her cigarettes, or she would not participate in certain care procedures, assertive physical management was effective. She was not aggressive to staff or other residents in hospital.
  15. [22]
    As to her ability to control the disruptive noisy behaviour the subject of the neighbours’ complaints, the doctor said it is unlikely she has any voluntary control of those behaviours. Distress from her psychosis combined with her vocal cord dysfunction make it difficult for her to speak softly. The patient experiencing intrusive delusional thoughts will commonly talk back to the thoughts, which possibly explains her loud talking to herself.
  16. [23]
    The doctor was supportive of her wish to remain living independently in the community, and cautioned against extrapolating from her generally compliant behaviour in the hospital ward that she would settle into a residential care setting. She however also conceded that Ms Simonova could realistically be displaying the behaviours reported by the neighbours, and that these behaviours could be quite disturbing to other people.
  17. [24]
    Given that the treatment for PTSD is psychologically based, it is very difficult to treat PTSD in the patient with schizophrenia, due to the disordered thinking and intrusivity of psychotic symptoms, and the lack of insight which makes it hard for her to engage, as she cannot reality-test her experiences and engage in CBT. Her non-English speaking and cultural background present barriers to her such that it would be difficult for her to engage in those therapies, so she could not change her behaviour and emotional response.
  18. [25]
    It is clear from Dr Hudson-Jessup’s evidence that even consistency in the current medication regime is unlikely to eliminate the behaviour complained of by the neighbours. Treatment of her PTSD and the symptoms she manifests (which are impossible to distinguish from the symptoms of schizophrenia) is not a feasible option.

Whether the Department has made out the grounds for the application

  1. [26]
    The initiating application filed 24 November 2016 was supported by affidavits of 6 nearby residents,[12] all homeowners in Alba Court, who described the various impacts on them of Ms Simonova’s various behaviours over the nearly four years that she has been in residence. Jessica Dwyer, Client Service Manager at Maroochydore Housing Service Centre, referred in her affidavits[13] to communications from those residents as follows: Mr Condon and Ms O’Sullivan (No 2), Ms Luxmore (No 7), Ms Mill (No 4), Mr Laverty (No 5), Mr Burkin (No 6), Ms Town (No 8), as well as a petition dated 24 August 2016 signed by the residents and addressed to the local state MP. The complaints documented day but of most concern, night time incidents where the neighbourhood was kept awake repeatedly as recently as 4 July 2017. Of the neighbours, only Ms Mill and Mr Condon were cross-examined.

Harassment, intimidation or verbal abuse of a person occupying premises nearby

  1. [27]
    Ms O’Sullivan[14] reported that she and Mr Condon[15] feel they need to be constantly on guard to protect their four children from Ms Simonova’s behaviour (including calling out in the direction of the children “Kill the children, Kill the animals[16]) and that, having personally spoken with Ms Simonova’s distressed and crying daughter Ms Krzeva, who told them her mother had hit her over the head with a stick or bat, and witnessed her distress at the time, they are fearful that she may cause their children actual harm. The carer who attended on that occasion reported that “she came at me once with a knife”. Carla Piggott, Occupational Therapist with Older Persons Mental Health Team (Queensland Health) confirmed that Ms Simonova regularly speaks of her concerns about children, dead animals and her pain which she attributes to being bashed by intruders in the night.  Ms Piggott confirmed that when she gets emotionally distressed, she starts crying and raises her voice slightly. This lends credibility to the reports by Ms Simonova’s neighbours. It is entirely plausible that neighbours hearing her, hearing about what she is alleged to have done, and observing witnesses tell of the experiences, might experience distress and fear for their own and their families’ safety.
  2. [28]
    Mr Condon’s evidence was that the daytime vocalisation by Ms Simonova often seems to increase when he and family members go outside into their yard, and from this he concludes that this behaviour is directed at them.
  3. [29]
    This is evidence in my assessment, objectively viewed, that is capable of amounting to intimidation.
  4. [30]
    Ms Luxmore is 77 years of age. She reported being harassed by Ms Simonova for money for cigarettes and food both at her home and in public, on a recurring basis. On 8 February 2017 at Currumundi Market shopping centre, Ms Simonova came over to her asking for money and saying she didn’t have any, so in order to “escape the embarrassment of her yelling in public” Ms Luxmore lent her $20.[17] On 24 June 2017, Ms Simonova came to her home wanting money at 5.20pm. She reports feeling very distressed and I infer from her evidence, personally pressured to take responsibility for Ms Simonova’s well-being, which she cannot do, given her own advanced age. There was no challenge to her evidence.
  5. [31]
    Equally, Ms Simonova has requested Mr Condon to supply cigarettes, which he has found harassing, and then she abuses him (“bastard”) when he refuses.[18] She has called him a “poofter”.
  6. [32]
    Such language qualifies as verbal abuse, and the behaviour of Ms Simonova towards Ms Luxmore for food and money, and Mr Condon, for cigarettes, is harassment.

Causing a serious nuisance to persons occupying premises nearby.

  1. [33]
    Mr Porter sought to argue that the authorities support the proposition that Ms Simonova’s inability to control her behaviour takes this case out of the category of nuisance, relying on Vincent v Peacock.[19]
  2. [34]
    In that case, Mahoney J at first instance refused an application in equity for injunctive relief by neighbours of a man whose noisy behaviour whilst regularly drunk, the court was satisfied, constituted a nuisance. Mahoney J took the view that a grant of the injunctive relief sought would be futile as it would be unenforceable because he may have been an alcoholic, about which there was no conclusive evidence. The Court of Appeal repeated the principle, which their Honours considered nevertheless did not apply in that case (because they were not satisfied that the neighbour could not comply with the injunction), that “where the effect of granting an injunction is to order somebody to perform an impossibility or to abstain from doing something which it is impossible for him not to do, an injunction should be refused.[20] The Court held that the difficulty of enforcement should not be a bar to the plaintiffs being awarded the relief they sought, where the Court was not satisfied the defendant would suffer extreme hardship by being obliged to abstain from the behaviour complained of. On my reading of the case however, it is not authority for Mr Porter’s argument that the involuntariness of behaviour is relevant to the issue of whether it might be categorised as a nuisance in the first instance. 
  3. [35]
    The relief sought in the present case is the termination of the tenancy and a warrant of possession. There is no impossibility of performance constituting a bar to the relief sought here.
  4. [36]
    In relation to the law of nuisance, the Court went on to say:[21]

Equity has protected property owners by injunction from a wide range of nuisances, and it is well established that it is the appropriate remedy to protect a householder against noise. Kerr on Injunctions, 6th ed., p. 185, states. (sic) “Mere noise alone will, on a proper case of nuisance being made out, be a sufficient ground for an injunction.”

  1. [37]
    Mr Porter also argued that at common law (absent any definition of nuisance in the Act) fault on the part of the perpetrator of the activity sought to be characterised as nuisance, must be established by the party complaining of the nuisance. In Elston v Dore,[22] the enjoyment of their land by the appellants, who were adjoining landowners, was affected by the filling in by the respondent, of an artificial channel, and the restoration of the levels of the land to those of its original state, which prevented waters already on the appellants’ lands from draining from them. This was in contrast to the facts in Sedleigh-Denfield v O’Callaghan,[23] cited in Elston, where the obstruction was caused by the negligent construction of an artificial work, which resulted in floodwaters flowing on to the plaintiff’s land, causing the nuisance. In Sedleigh-Denfield, Lord Atkin said:[24]

For the purpose of ascertaining whether as here the plaintiff can establish a private nuisance, I think that nuisance is sufficiently defined as a wrongful interference with another’s enjoyment of his land or premises by the use of land or premises either occupied or in some cases owned by oneself.  The occupier or owner is not an insurer; there must be something more than the mere harm done to the neighbour’s property to make the party responsible. Deliberate act or negligence is not an essential ingredient but some degree of personal responsibility is required, which is connoted in my definition by the word “use”. 

  1. [38]
    The Full Court in Elston went on to find that “The respondent’s action has not caused the appellants’ lands to be damaged, invaded or interfered with.”  The damage suffered by the appellants’ lands was not the fault of the respondent and he owed them no duty to help them by leaving an artificial drain on his land which had previously been useful to them in draining away water that had accumulated on their lands. The claim in nuisance failed. Elston was a case where the landowner had done something lawful on his own land, which removed a benefit that adjoining landowners had previously enjoyed but had no particular right to. I am unable to see that a useful principle emerges from the decision that assists the determination of the present case.
  2. [39]
    In Norbury v Hogan,[25] Justice Alan Wilson, then the President of QCAT, considered the meaning of “nuisance” and “unreasonable interference with the use or enjoyment of another lot” in the context of the Body Corporate and Community Management Act 1997 (Qld), where neither of those terms is defined. In that case, the occupier of one lot was a heavy cigarette smoker. The complainant neighbour suffered from an unusual sensitivity/allergy to the smoke. 
  3. [40]
    After discussing the authorities, His Honour concluded that for the nuisance or interference to achieve the required level of unreasonableness, beyond mere inconvenience to the neighbours, it must be shown to be of such volume or frequency (the cigarette smoke emanating from the defendant’s premises) that it would interfere unreasonably with the life of another lot owner of ordinary sensitivity. That is, the test is an objective one. The peculiar sensitivity of the complainant in the absence of evidence from a person of ordinary sensitivity was fatal to the claim.
  4. [41]
    There was ample evidence in the present case of the noisy behaviour of the tenant, Ms Simonovic, being of such frequency and volume, that the ordinary and necessary functioning of a number of her neighbours impacted by her behaviour was unreasonably affected, such that it goes well beyond mere inconvenience or unpleasantness for them. 
  5. [42]
    Ms Mill reported having now been diagnosed with high blood pressure requiring medication, which she associates with lack of sleep and stress at the neighbourhood situation. She has also resorted to sleeping pills but finds it difficult to function in her profession as a nurse while using the medication.
  6. [43]
    Mr Condon reports the sleep of his four children being constantly disturbed, and feels their ability to function at school is affected. They express fear at Ms Simonova’s yelling and have their playtime outside cut short by their parents to protect them from exposure to the swearing and risk of talk of killing children and animals. This talk makes them anxious. They want to move to a new house. His wife who is studying nursing and midwifery at University is physically and mentally exhausted as a result of interruption to her sleep. She is embarrassed and ashamed such that she will no longer invite guests to their home. Mr Condon’s sleep is constantly disturbed. This impacts on his ability to operate heavy machinery at work. He has had to take time off work to care for the children as they are staying home from school tired. His feeling of worth as their father is affected as he cannot protect them. His most serious concern expressed in cross-examination was the sleep disturbance/deprivation. The family is also disturbed by the large number of service providers constantly attending at Ms Simonova’s house and knocking loudly and calling out to Ms Simonova to open the door. They spend as much time on weekends away from their home with family to gain some peace. None of this evidence was meaningfully challenged.  Mr Porter’s line of cross-examination was directed to whether Mr Condon believed that all possible avenues to address the disturbance had been exhausted. He had constructed a double-paled dividing fence and planted bushes, in the hope of reducing the noise intrusion, without success.
  7. [44]
    Interestingly on the one hand in cross-examination of Mr Condon and subsequently in submissions, Mr Porter criticised him for not having made more recordings than he produced in evidence, whilst on the other hand, suggesting that it was unfair of the neighbours to be making recordings as Ms Simonova feels she is being surveilled, which causes her distress.
  8. [45]
    Adding weight to the veracity of the complaints of nearby residents, is the record in Exhibit E, REVIEW SUMMARY – HARU REF C1609-016[26] that following a report of “Ms Simonova’s behaviour negatively impacting upon their client (sic) mental health resulting in hospitalisation.  The tenant in 3B Alba Court was subsequently transferred to another property in April 2014”.
  9. [46]
    I accept that persons involved in the delivery of health and support services to Ms Simonova in her home, such as Carla Piggott,[27] Helen Evans,[28] Anthony Sandy,[29] may not have observed or experienced the behaviours reported by the neighbours. They however only visit her, in the case of Carla Piggott, every two to four weeks, Helen Evans, every two to three months, and Anthony Sandy has met her “a number of times in” his “role as director”.[30] None denied that she has a loud voice, and that when she is agitated she has a tendency to get louder,[31] and that her manner of speaking may give the impression of aggression. Their visits are very limited and they are not there at night.
  10. [47]
    I am satisfied that the accounts of the residents of the noise disturbance emanating from the residence of Ms Simonova are entirely plausible. I am satisfied that she causes noise in the form of vocalisation speaking to both herself and calling out abuse to the neighbours, and by banging of doors, windows and cupboards. I am satisfied that the accounts by the neighbours of the impact of this noise pollution on their lives, in their oral evidence, affidavits and complaints, are reliable, as they were barely challenged.  They were consistent one with the other and are corroborated by:
    1. The evidence of Dr Pamela Hudson-Jessup that it is likely that she is behaving in this fashion.
    2. The fact that a previous adjoining tenant at 3B Alba court was moved due to the impact on his mental health of the noise made by Ms Simonova.
    3. The fact that the noise made by Ms Simonova at her previous departmental tenancy at Verney St was intolerable to the neighbours and resulted in her being moved to the present address by the Department, in the hope that the Alba Court placement might be more sustainable.
  11. [48]
    No case was made out that the neighbours’ reports were motivated other than by concern for their own and their families’ wellbeing, after being exposed to a constant and unbearable level of noise over nearly four years, and which I accept is relentlessly ongoing and not abating. The absence of sample recordings of each category of noise complained of, with verifiable time of day, does not detract from the quality of the oral and affidavit evidence of these witnesses.
  12. [49]
    I am satisfied that the evidence in the present case is that the volume and frequency of the noise emanating from the home of Ms Simonova, particularly during the night,  is such as to unreasonably interfere with the lives of the Condon family, and Ms Mills, the adjacent neighbours. It no longer interferes with Ms Luxmore, as she has gone to the expense of installing air conditioning, and has to bear increased electricity bills. There is no evidence that any of these people suffer unusual sensitivity to noise. The nearby residents are not complaining of some new and previously unknown phenomenon. 
  13. [50]
    Mr Porter argued that the fact that Ms Simonova’s behaviour has been severely disruptive to her neighbours in the past (at Verney St), means that the Department cannot now complain of her behaviour.  He relied on Clarey v The Principal and Council of the Women’s College[32] for this assertion. In that case, the landlord let part of the old weatherboard premises to young female university students as accommodation. He later took up residence in another part of the property, and complained of the noise. It was held that given the nature of the premises and that the activities generating the noise were consistent with the young female students going about the activities of normal daily living, he could not complain. In my view, the present case is clearly distinguishable from Clarey, in that the volume of noise, its frequency, unusually penetrating quality and occurrence at night allow of the finding that it is not a normal phenomenon consistent with the normal activities of daily living within the community.
  14. [51]
    If however the legal definition of nuisance requires that the perpetrator of the behaviour act after deliberation or indeed with recklessness, but has the capacity to accept intervention to assist them to control their behaviour and declines to do so, which is not the case here, then the behaviour by Ms Simonova would not be sufficient to establish nuisance at law.  I accept that the medical evidence is that she does not possess the capacity to control her responses to the phenomena she experiences. 

Intentionally or recklessly endangering another person at the premises or interfering with the reasonable peace, comfort or privacy of a person occupying premises nearby.

  1. [52]
    Mr Porter argued that the words “intentionally or recklessly” apply also to the phrase “interfering with the reasonable peace, comfort or privacy of a person occupying premises nearby”, and that given the evidence of Dr Hudson Jessup as to Ms Simonova’s inability to control her behaviour, the Tribunal would find that the Department has not satisfied this limb.
  2. [53]
    In my view, there is no ambiguity, for several reasons. Firstly, there are two concepts, separated by the word “or” where it occurs before “interfering”.  Intentional or reckless endangerment applies to “another person at the premises”. Interference “with the reasonable peace, comfort or privacy”, applies to “a person occupying premises nearby”. Ms Simonova lives alone.
  3. [54]
    I am further comforted in my interpretation of this limb, given the separate treatment of the concepts of “intentional or reckless endangerment” and “interference with a person’s reasonable peace, comfort or privacy” in s 345A(3).
  4. [55]
    In my assessment, the plain reading of the words of the statute is that the interference with a person’s reasonable peace, comfort or privacy need not be intentional or reckless.
  5. [56]
    There is no suggestion that her behaviour endangers any person at the premises. 
  6. [57]
    Since 27 May 2017, two new tenants have taken up residence in thesecond of the units in the duplex at 3 Alba Court. They are hearing-impaired. Ms Janette Orr, carer for her co-tenant, gave evidence that Ms Simonova does not bother them. She is used to the voices of hearing-impaired people, which are not dissimilar to Ms Simonova’s: “a gravelly voice, it could almost be mistaken for a dog.” “When she is talking to herself it tends to last for twenty to thirty minutes and then she is quiet like she has talked the issue out. Then you might not hear her again for hours. The volume can be different at different times but it is always quite loud… I have noticed the neighbours putting on music sometimes when she starts talking and this makes the talking less noticeable”. “Can be quite loud, harsh and very expressive”. She has heard the banging noises. She and her co-tenant sleep without their hearing aids and hear nothing overnight.
  7. [58]
    The other adjoining neighbours are not so able to cut themselves off from the sounds of the neighbourhood. Their direct experience over just under four years is different. They are “persons occupying premises nearby”. They are unable to sleep in their bedrooms, their functioning in the workplace is negatively impacted, they cannot use their outdoor areas, and cannot have friends visit.
  8. [59]
    Ms Luxmore’s guests have been shocked at the noise of yelling and slamming doors and windows during the night. She spends as much time as possible away from her home and has installed an air conditioner and ceiling fan in her bedroom so she can keep all her windows and doors closed to exclude the noise. She has to pay increased electricity bills. She has made numerous and regular complaints to the Department with no change in the situation.
  9. [60]
    Ms Mill cannot get any rest, and her daughter and new baby could not stay with her, due to the constant noise from Ms Simonova. Ms Mill was approved as a foster carer and has qualifications and experience in nursing, however is not prepared to subject a child to the situation and has elected not to take on a needy child at this point. She can hear Ms Simonova at all times of the day and night crying and vocalising, whether she is inside or outside her unit. Even when Ms Mills is inside her own home with doors and windows closed, she can hear her voice. Installation of air conditioning in her home has made no difference, and she sleeps in the lounge on the floor or on the couch. She is exhausted. In 2016, she made 27 complaints to the Department.[33] It has affected her health and she has to put up with bad language and screaming and banging through the night. Her evidence was not challenged, and Mr Porter only put to her that perhaps not all possible measures to address the problem had been exhausted.  
  10. [61]
    Similarly, Mr Burkin, primary school teacher at 6 Alba Court, 35 to 40 metres from 3A, loses sleep and due to the length of time “her loud rants go on and on” he finds it difficult to get back to sleep. He helped her bury her dog when it died. He signed a petition to the local member and has made complaints to the Department with no result. His evidence was not challenged.
  11. [62]
    Ms Krzeva sought to persuade the Tribunal that these people were prejudiced against her mother, intolerant and were not only exaggerating in their accounts of her behaviour, but inventing details. She claimed to have regularly slept in her car outside the house overnight and not heard anything of the sort described. She had to be sternly reminded that the courtroom was not her opportunity to make speeches about her discontent with the Department, her frustrations with various agencies and her dislike of the neighbours. She refused to answer Ms Worsfold’s legitimate questions put in cross-examination and appeared to be deliberately evasive, making it difficult to find her evidence reliable. In any case, the evidence of the neighbours who reside in the street, who were not shown under cross-examination to have made their complaints maliciously or frivolously, and indeed expressed concern for Ms Simonova’s well-being alongside their personal frustration at not being able to enjoy their home lives, was consistent with each other and highly persuasive that Ms Simonova consistently displays loud and seemingly aggressive vocalisation (my expression) at all times of the day and night, which causes extreme and constant disruption to the lives of all her neighbours to a severe extent.
  12. [63]
    As I have already observed several times, Mr Porter did not challenge the evidence of any of the nearby residents about the noise, except to unsuccessfully suggest to Ms Mill and Mr Condon that perhaps the sound of the voice they heard was Ms Simonova in conversation. This is not explained by the fact that she lives alone and much of the vocalisation complained of is during the night at all hours.
  13. [64]
    In the circumstances, the extensive evidence of the impact of Ms Simonova’s behaviour on the neighbours, and the substantial adjustments they have had to make to their lives to attempt to ameliorate the effects on themselves, particularly to be able to sleep uninterrupted, is sufficient to satisfy this limb, and her inability to regulate her behaviour is an irrelevant consideration.
  14. [65]
    The case of Lawler v Department of Housing and Public Works, State of Queensland [2017] QCATA 21 confirms that a tenant suffering from a mental illness which has as a feature or symptom, lack of insight into the impact of the condition on others, or the need for medical or allied intervention, cannot in answer to an application for termination for objectionable behaviour, rely on the mental illness as a defence.
  15. [66]
    Equally, the fact that the tenant Dean, in The State of Queensland through the Department of Housing and Public works v Frank Kimmel and Anor,[34] suffered from a psychiatric illness which may have been a reason for the objectionable behaviour complained of, was insufficient to resist the application for termination at first instance.
  16. [67]
    As to the issue of intentional or reckless behaviour,[35] given my interpretation of s297A(1)(c), and that there is no complaint of endangerment of another person at the premises, it is not necessary for me to decide whether Ms Simonova’s behaviour is intentional.   There is ample evidence of serious interference with the peace and comfort of the persons occupying premises nearby, which is sufficient to satisfy this subsection. 
  17. [68]
    Whilst I accept that the level of harassment, intimidation and verbal abuse if taken in isolation would, given the serious consequences for the tenant of termination, be unlikely to warrant a finding of objectionable behaviour such as to justify termination, I am satisfied that the ground of the application is amply made out by the evidence of interference with the reasonable peace, comfort or privacy of the persons occupying premises nearby.

Whether the behaviour justifies the termination

  1. [69]
    Optional considerations:
    1. whether the behaviour was recurrent and, if it was recurrent, the frequency of the recurrences;
  2. [70]
    I am satisfied that the noisy vocalisation during the night, the slamming of doors and windows and banging sounds made by Ms Simonova  are almost a nightly occurrence, on the basis of the unchallenged evidence of Mr Condon, Ms O’Sullivan, Ms Mill, Mr Burkin, Ms Luxmore and Ms Towns.      Additionally I am satisfied that, from the number of recent complaints made since the commencement of this hearing, attached to the affidavit of Jessica Dwyer filed by leave 6 July 2017, the behaviour is not abating.    
    1. for behaviour in the form of harassment, intimidation or verbal abuse - its seriousness;
  3. [71]
    I not am satisfied that the evidence of Ms Luxmore of Ms Simonova harassing her for money and food nor that of Mr Condon of harassment for money for cigarettes, or the limited verbal abuse of him, would in isolation justify the taking of the drastic step of terminating the tenancy. Equally the evidence of Ms O’Sullivan about the “death stare” by Ms Simonova when sitting in the street, is not sufficiently serious.
    1. for behaviour in the form of intentional or reckless endangerment - its seriousness;
  4. [72]
    There is no relevant evidence to support any finding under this head.
    1. for behaviour in the form of interference with a person’s reasonable peace, comfort or privacy - its seriousness.
  5. [73]
    I accept that the four Condon and O’Sullivan children along with the parents have had to substantially and unreasonably change their sleeping and social arrangements. Ms Mill has also had to do that and is now on medication. Ms Luxmore has to sleep with air conditioning on, increasing her power bill. These households are unable to entertain visitors, as they are either unwilling to visit in the circumstances where they have to put up with the noise and harassment, or the householders are too embarrassed to subject them to the behaviour of Ms Simonova. They cannot use their outdoor areas. They cannot congregate in the cul de sac with other neighbours and their children, due to Ms Simonova’s “death stare” which Ms O’Sullivan feels is directed at her children, or her sitting in the gutter staring and yelling at them. The children are frightened and have to be taken inside. They do not understand mental illness. The Condon/O’Sullivan family have even considered moving house but believe they could not sustainably tenant their house with Ms Simonova as neighbour, and cannot afford to sell and move. They not unreasonably fear that the value of their home has been diminished as a result. They suffer sleep deprivation and are unable to properly function respectively in their employment and university placement. The impact on Ms Mill who is a full time worker is the same.
  6. [74]
    Residents are entitled to expect to be able to use their homes as a place of peaceful retreat. The degree of interference in the present case is serous to the point of extreme.
  7. [75]
    Addressing the issue of “reasonable” in connection with the standards for the enjoyment of premises (as opposed to unreasonable when concluding that the test is an objective one) Justice Wilson referred to the remarks of Harris J in Oldham v Lawson (No 1)[36] at [16] in Norbury v Hogan:[37]

What are reasonable standards must be determined by common sense, taking into account relevant factors, including what the Court considers to be the ideas of reasonable people, the general nature of the neighbourhood and the nature of the location at which the alleged nuisance has taken place, and the character, duration and time of occurrence of any noise emitted, and the effect of the noise.

  1. [76]
    His Honour continued at [17]:

In residential areas, the cases show, the principle of ‘give and take, live and let live’ is customarily applied so that the ‘ordinary and accustomed use’ of premises will not be considered a nuisance, even if some inconvenience to a neighbour is caused.

  1. [77]
    I have already commented in relation to the decision in Clarey, that I consider the present facts to be clearly distinguishable from those in that case. The impact on Ms Simonova’s neighbours of her unusual and extreme behaviour in the form of noise generation at all times of the day and particularly the night, is vastly more extreme than the annoyance or inconvenience suffered by the landlord who chose to live in the adjoining rooms to the students in the old weatherboard house, when their activities were normal and the noise simply amplified by the quality of the property.  That is not the case here.
  2. [78]
    The expectations of the neighbours in Alba Court to be able to inhabit their homes without their sleep being disturbed during the night repeatedly by noise made by Ms Simonova, so that they can function normally during the day, without having to abandon their bedrooms and make arrangements to sleep elsewhere in the house, are reasonable, and not the expectations of people with unusual sensitivity.  In the present case, the fact that they have had to substantially and permanently adjust their living arrangements to attempt to cope with Ms Simonova’s noise, and indeed are nevertheless not able to do so, is serious interference with their reasonable peace and comfort. Interference with their privacy is not such a serious issue.
  3. [79]
    This is not a case of intolerance by the neighbours of difference, nor is it a case of discrimination against Ms Simonova.

The mandatory s 345A(3) matters:

  1. any serious or adverse effects on neighbouring residents or other persons, including whether neighbouring residents or other persons are likely to be subjected to objectionable behaviour if the agreement is not terminated;
  1. [80]
    I have already outlined the effects on the neighbouring residents. I am satisfied that if the agreement is not terminated, the behaviour and thus the effects will continue unabated. The evidence of Dr Pamela Hudson Jessup supports this finding. The evidence of Karis Ross, Social Worker, that trauma counselling would help Ms Simonova’s PTSD condition is of very little assistance in this case. She conceded that she was not an expert in trauma counselling but her more relevant experience seems to be in cross-cultural cases. I don’t accept her theory that Ms Simonova’s behaviour is her reaction to the strong history of trauma, and might be addressed by trauma counselling. Clearly she was not briefed with the evidence of Dr Pamela Hudson Jessup that in the case of Ms Simonova, the diagnosis of Chronic Paranoid Schizophrenia means that the usual Cognitive Behavioural Therapy (or psychotherapy) treatment for PTSD would be futile. The evidence of Dr Pamela Hudson Jessup was authoritative that realistically there is no prospect of successful treatment being effective in causing any real reduction in the objectionable behaviour (my precis).
  2. [81]
    I am satisfied that termination of the tenancy is the only way to cease the neighbouring residents being subjected to objectionable behaviour by Ms Simonova.
    1. any evidence regarding the tenancy history of the tenant;
  3. [82]
    Ms Simonova seems to have successfully sustained a public housing tenancy while raising her children in Inala many years ago according to Thelma Black,[38] who sees her and her daughters annually.  Ms Black was a respite carer for the 12-year-old girls when their mother was hospitalised for 2 weeks. She fondly recalls the family and their struggles. Her evidence is of no assistance in the present proceedings. Of far greater relevance is the fact that Ms Simonova was housed in a unit at Verney St in Caloundra before she entered the current tenancy, alongside other public housing tenants, and had to be re-housed in the present premises due to the hostility of those neighbours who were agitated by her behaviour.[39]
  4. [83]
    At this point it is also relevant in my view, to deal with the evidence of Ms Dolores Timms[40] who was an aged care nurse on staff at Karingal aged care facility working 25 to 30 hours per week including two overnights per week when Ms Simonova received residential aged respite care there for six months in 2010. Ms Timms well recalled her getting up at night for a cigarette on the verandah. She”does talk very loudly and with a heavy accent”. “Some of the other Karingal residents found it very annoying and reacted to it negatively. Some were extremely rude to her, telling her to quiet down, or ‘do you have to make so much noise’ (sic)”.  Whilst Ms Timm said in her affidavit she would not like to see her “go into a close community type accommodation like Karingal again as I know it would be an unhappy situation for her”, the effect of her oral evidence was that Ms Simonova seemed particularly reassured by the presence of staff at night. She kept the light on and had a call button. Being in the larger group at mealtimes could get stressful for her and she was a “loner”. Staff would take her to her room into her own space. Negative comments by other residents were not tolerated. “She didn’t experience more criticism than anybody else”. 
  5. [84]
    Mr Porter urged the Tribunal not to place significant weight on this evidence (which was called by him on behalf of Ms Simonova), and Ms Krzeva insisted that it was not a successful placement. I was impressed by Ms Timms’ evidence, and am satisfied that whilst Ms Krzeva insists that her mother would not tolerate residential aged care, and that she should have her wish to live independently in the community, living in the group setting where she could be supported by properly trained staff may well be a reasonable option, although not that preferred by her daughter and herself.   The availability or otherwise of suitable accommodation is however in my view in no way determinative of this application.
  6. [85]
    I accept that Ms Simonova keeps her home clean and tidy and her rent and bills are paid promptly. I accept also that her preference and indeed strong wish is to remain living independently with the assistance of appropriate necessary supports, in the community.
  7. [86]
    Ms Jessica Dwyer, Client Service Manager at Maroochydore Housing Service Centre detailed both the history of complaints received during the tenancy, and the steps taken by her office including initiated by her, to link Ms Simonova with relevant support services/agencies, and to liaise with those agencies, in an effort to sustain the tenancy. I am satisfied that the Department did not initiate the present application for termination lightly, nor without undertaking extensive steps to avoid the necessity of making the application, and delayed formal action, to the extent that the Ombudsman intervened to criticise the Department, and effectively considered the strategy of delay adopted by the Department to be unacceptable, and that it amounted to ignoring the complaints by the neighbours.
  8. [87]
    Ms Krzeva suggested that the Department had failed to properly maintain the property, and that the old fittings and fixtures were the cause of banging and noisy closing of windows by her mother. Ms Dwyer revealed that there had been no requests for maintenance by or on behalf of Ms Simonova[41] and she produced records of maintenance and repairs and upgrades (including kitchen for $9,268 on 10/08/2015) to the property.[42]
    1. if the tenant is a tenant under a State tenancy agreement
    1. the department's responsibility to other tenants;
  9. [88]
    The Department has conveniently and in the circumstances, perhaps wisely, dealt with this issue by granting a tenancy of the adjoining duplex to hearing-impaired tenants whose evidence is that to date they are not bothered by Ms Simonova’s behaviour. It is true that no evidence has been called by the Department from the previous tenants at 3B, apart from the reference to an earlier tenant moved in 2014 due to the impact on his mental health of the noise, nor is there any explanation of whether the most recent tenants before Ms Orr, chose to vacate voluntarily or were requested to do so. There is no current complaint against Ms Simonova by other Departmental tenants and given the particular characteristics of her very new hearing-impaired neighbours and the short time they have been in residence, I do not find the evidence of Ms Janette Orr of any assistance in the determination of this matter, despite Mr Porter’s urging that it is material. 
    1. the department's responsibility to other tenants;
  10. [89]
    It was not disputed that the list of persons seeking public housing of the style at 3A Alba Court is very long (according to Ms Dwyer, it was 114 persons as at 8.2.2017 in the Caloundra area).

Other Discretionary Factors

Have all possible interventions been exhausted

  1. [90]
    Mr Porter conducted the case on behalf of Ms Simonova, on the additional basis that all possible measures to ameliorate the impact of Ms Simonova’s behaviour, had not been exhausted, whether noise reduction strategies, or therapeutic interventions.
  2. [91]
    The hearing had the benefit of a wide range of evidence from service providers called by both parties, detailing the support services and interventions either trialled or in place to support Ms Simonova to live independently in the community.
  3. [92]
    Ms Deb Blakeney CEO of Lions In Place, spoke of the involvement of KEIHS in 2014. At that time, the social worker spent a lot of time with Ms Krzeva and Ms Simonova as a result of the neighbourhood complaints, to work out the source of the issues and the stressors in play. She was exited from the service, as the interventions/strategies they devised in relation to her finances and funding her cigarettes, budgeting, and the services implemented, did not result in changes to her night behaviours that gave rise to the complaints. I gleaned from her evidence that Ms Simonova’s behaviours might be seen as potentially part of a vicious circle, where her normally loud behaviour triggers a response from the disturbed neighbours, which may operate as a stressor, triggering in her memories of trauma, and thus a behavioural reaction, which she cannot regulate and in the absence of a calming presence, her behaviour increases and that in turn causes increased upset in the neighbourhood. 
  4. [93]
    Fiona Jarrett, Senior Clinician and Service Integration Coordinator with Sunshine Coast Mental Health Services spoke of the partnership between Mental Health and Housing. Agencies are often the subject of legitimate criticism for failing to work in partnership. Ms Jarrett described her role, once Housing advised that it was proceeding to QCAT to seek termination of the tenancy, as being to check with Older Persons Mental Health Service, whether they had had ample opportunity to give help, treatment and support to the tenant. She works between services and treating teams, and had some years earlier been made aware of problem behaviours of this tenant (as she had with other patients of concern).  She was aware that Ms Krzeva was advocating strongly for Ms Simonova to live independently, while the Older Persons Mental Health Service was aware that she had done well in Karingal with the higher level of support available to her there. I am not satisfied that the intense criticism levelled at her by Ms Krzeva[43] and reinforced in cross-examination by Mr Porter was justified. She was in a perfect position to author a letter of support relied on by the Department, that in her view the Department had not failed to explore any available options to sustain the tenancy.

Mitigation of noise

  1. [94]
    Nicholas Smith[44] is an Occupational Therapist with 14 years’ service at the Department of Housing and Public Works, with the specific role of assessing the needs of Public Housing tenants and applicants with disabilities or medical conditions or age-related conditions in the Sunshine Coast Area. He has worked on Ms Simonova’s case since 2013, when she was to be transitioned to Alba Court after the tenancy in the one bedroom unit in the high density seniors complex in Verney St broke down due to repeated noise complaints. He advised on possible strategies with knowledge of her medical conditions and her habits, the nature of the complaints by neighbours, and in consultation with her daughter Ms Krzeva.
  2. [95]
    He made referrals to services to access culturally appropriate counselling services to address past trauma, referred her to physiotherapy to investigate improvement of pain management, and noted later that she had been encouraged to use a walking stick and access a pain clinic. He arranged home modifications to accommodate her physical disability.
  3. [96]
    The following factors led him to conclude that none of the physical modification measures available for consideration were practicable, either in 2013, during the course of the tenancy, or now:
    1. Ms Simonova’s habitual behaviours of opening and closing the windows and doors, and enjoying spending time in the garden and she smokes heavily. Installation of double glazed windows (she became distressed when modification of the windows was raised) and increased insulation as noise reduction strategies (a costly option requiring her to vacate the premises during works) becomes immediately ineffective once the barrier is breached by opening a door or window. She is highly mobile.
    2. The most likely effective noise barrier would involve the construction of a very high block wall (against Council regulations and very expensive) around the perimeter of the property to create a prison-like structure, which would be unsightly, and increase her social isolation.
    3. Her diagnoses, lack of insight and emotional dysregulation make it impracticable to assist/encourage her to learn to modify her habits and behaviours to e.g. stay inside and keep all windows and doors sealed up.
    4. A reduction in noise of 6 decibels using a vegetation barrier requires planting of a barrier of bushes of 30 to 40 metres width. This is not available on the narrow block occupied by the duplex at 3 Alba St.
    5. Double paling the fence would not create an effective noise barrier.  Interrupting the neighbours’ line of sight with plantings and fences would be psychologically ineffective in this neighbourhood, where the neighbours have been exposed to the source of the noise for so long.
    6. Installation of air conditioning at her cost would be unlikely to be effective and the operating cost to her would be financially unsustainable. This is particularly obvious, given that she suffers increased distress and increased emotional dysregulation in off-pension weeks when she runs out of cigarettes. Her habit of going outside and opening the windows for ventilation would defeat any benefit of the closed air conditioned space.
    7. Only once in his 20 years’ experience had he seen a case where air conditioning and sealing of a premises was effective as a noise barrier. The resident received 24/7 care and was confined to a bedroom. 
  4. [97]
    Mr Michael Maire[45] is an Occupational Therapist called by Mr Porter for Ms Simonova. There was no evidence that he had been briefed with the most challenging aspects of Ms Simonova’s diagnoses, nor the particulars of the complaints. He focussed his ameliorative suggestions on reducing line of sight between the neighbours and Ms Simonova’s home and its exits and entrances: “All I am trying to do is lessen her proximity to the neighbours”. This is based on the principle, also referenced by Mr Smith, that if the source of the noise is not visible then it may be less psychologically distressing.
  5. [98]
    He suggested that Ms Simonova might learn some breathing techniques to calm herself, but conceded that it would take many hours of repetition to teach her this behaviour management technique. He was unaware of Dr Hudson Jessup’s evidence, from which I infer that such therapy would not be effective or practicable. His recommendations were made after a two-hour consultation with Ms Simonova and a brief chat to some of her mental health team at Sunshine Coast to understand their involvement with her. He was unaware that she is the subject of an Involuntary Treatment Order.  He made the broad statement in his evidence in chief that “she has the capacity to be able to complete lots of tasks and to learn things and change her routines and habits” but conceded that “she is set in her ways” and “a creature of habit” and that “there are lots of things we can’t change about her behaviour or things she had happen to her”. He conceded that it was not possible to administer the Allens Cognitive Screening test to objectively assess her capacity to change. 
  6. [99]
    The evidence of Mr Smith was highly persuasive and significantly more authoritative than that which Mr Maire was able to offer. I am not satisfied that there exist practical options to modify the property to create an effective sound barrier to relieve the transmission of sound that is impacting so severely on the residents of neighbouring properties in the neighbourhood of 3A Alba Court.

Overnight emotional support

  1. [100]
    I am satisfied that the most disturbing sounds of emotional distress that disturb the neighbours in Alba Court, occur at night, to disturb their sleep. 
  2. [101]
    The evidence is that whilst an inpatient in Nambour Hospital earlier this year, and while residing in Karingal Aged Care facility in 2010, despite her close physical proximity to other residents, and the reduced independence necessitated by the living arrangements in those facilities, Ms Simonova did not demonstrate the emotional distress and dysregulation that results in her vocalising and disturbing those around her. Lynn Maree Roberts[46] gave evidence that she was so expertly supported at Karingal, to address the particular difficulties with stress that she experienced during twilight/night time, with 24/7 care, that she no longer needed mental health specialist support. This report is supported by Fiona Jarrett, Senior Clinician and Service Integration Coordinator with Sunshine Coast Mental Health Services. She was surprised at how well she did in the crowded noisy environment, despite difficulties with her co-patients. Unfortunately, Karingal closed down. Carla Piggott personally observed that she appeared to be very comfortable in the Acute ward at Nambour General Hospital during her week-long stay there earlier this year. Deb Blakeney speaking of her 2014 experience at KEIHS unsurprisingly surmised that the presence of somebody with Ms Simonova at night may be of assistance.[47] There is no such on-hand support available to her in her own home.
  3. [102]
    It is worthy of note that the opinions as to the success of Ms Simonova’s placement in Karingal in 2010 appear to be largely split along party lines, that is to say, the witnesses for the Department consider it to have been a success, and those called by Mr Porter are of the contrary opinion, Ms Evans reporting it as “traumatic and not a positive experience”.[48] She however did not commence work with the family until 2014. Ms Krzeva certainly has a negative view of the experience describing it as “disastrous”.[49] Ms Timms, who actually personally cared for Ms Simonova at Karingal however, as discussed earlier in these reasons, volunteered under cross-examination that Ms Simonova responded well to the supportive reassurance she was able to offer her when she showed signs of distress at Karingal.
  4. [103]
    I am satisfied that the availability of staff in hospital and in Karingal aged care  to offer Ms Simonova emotional support and reassurance, before her behaviour escalated to the point it does when she is alone overnight in her home, is the factor that is not available to her at home. It is clearly valuable in preventing her behaviour escalating, and giving rise to the regular disturbances experienced by her neighbours.
  5. [104]
    Consideration has been given to the possibility of supporting her overnight in her home, to minimise the emotional distress she experiences, and thus the noise.  
  6. [105]
    Helen Evans[50] of Arcare Home Care confirmed that Ms Simonova is now eligible for Level 4 Home Care, which increases the number of hours weekly available for in home support from 8 or 9[51] to 12 or 13 hours.  Capacity might be identified to trial overnight support, however this would be unsustainable as there is no source of funding that would pay for it on any long term basis. Her current ACAT assessment does not support her eligibility for permanent residential care, however another assessment could be sourced in 8 to 12 weeks.  Ms Evans sees her only once every 2-3 months and supports her desire to live independently in the community. She thought other interventions and modifications should be trialled before the tenancy is terminated. She however volunteered no innovative suggestions beyond what Mr Smith had already considered and rejected.

Was the application to QCAT made hastily?

  1. [106]
    Ms Jessica Dwyer addressed the issue of whether the Department had acted hastily in making the present application, in her affidavit filed 8 February 2017. Exhibit E summarises the history of the Department’s actions in response to tenant complaints about Ms Simonova.  I am satisfied that there is ample evidence that the Department acted with sensitivity and conservatively in the present case, having regard to the special needs of the tenant and in conformity with the Fair Expectation of Behaviour Policy,[52] as follows:
    1. Seeking out appropriate agencies to offer additional support.
    2. Encouraging neighbours making complaints to be more tolerant,[53] to the extent that the Department received feedback from the Ombudsman[54] that it should apologise to Ms Mills for its failure to address her complaints appropriately.
    3. Putting the tenant on notice by the issue of warning letters several times that the behaviour would jeopardise the tenancy.
    4. Conferring with support agencies about how they might collaborate to sustain the tenancy.
    5. Investigating the possible efficacy and practicality of modifications to the premises to mitigate the effects of noise on the neighbouring residents.
    6. Seeking to communicate with Ms Krzeva about the complaints to try to address them, without success, given Ms Krzeva’s hostility and suspicion that the Department was determined to evict her mother.
  2. [107]
    I accept that there may have been a breakdown in the strict application of the policy when the application was finally made to QCAT, in that Ms Krzeva may not have been sent notices in her capacity as the Attorney of Ms Simonova, although I am satisfied that Ms Krzeva was made aware of the application. Any failure by the Department in this regard was rectified by the stay of the order, and in the present proceedings she has been accorded every opportunity for fair representation and presentation of her case. Ms Krzeva in any case presented a significant challenge to the Department in trying to negotiate any resolution to the complaints by the neighbours. She was hostile and not prepared to engage. I accept that she would have suffered extreme stress given the responsibility she has undertaken to ensure her mother lives out her days in comfort and peace, and the challenges that presents.
  3. [108]
    Ms Blakeney expressed the view unsurprisingly that the current circumstances of Ms Simonova’s tenancy in the Alba St neighbourhood are untenable and not able to be rectified. In the case of a fresh tenancy in social housing, and if KEIHS were involved, the provision of night time support would enhance the opportunity to sustain the new tenancy, was her advice.

Conclusion 

  1. [109]
    I am satisfied on the balance of probabilities that the Department has proved that the tenant’s behaviour is objectionable and justifies terminating the agreement.
  2. [110]
    I accordingly confirm the order made by me on 20 July 2017:
    1. That the tenancy of the premises at 3A Alba Court Currimundi be terminated as of 10 August 2017, on the basis of objectionable behaviour.
    2. That a Warrant of Possession issue authorising a police officer to enter the premises, the warrant to take effect on 15 August 2017 and to have effect for a period of 14 days, to expire at 4pm on 29 August 2017. 
    3. The warrant is to be executed as soon as reasonably practicable after taking effect with entry to be made between 8am and 4pm.

Footnotes

[1]  All references in this decision to legislative provisions refer to the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (as amended) (“the Act”) unless otherwise indicated.

[2]  S 349A(2).

[3]  Affidavit of Debbie Davis sworn 23 November 2016.

[4]  Oral evidence Dr Pamela Hudson Jessup, treating psychiatrist.

[5]  Exhibits B and C.

[6]  Affidavit of Karis Ross sworn 6 April 2017.

[7]  Affidavit of Antoneta Krzeva sworn 5 March 2017, [23].

[8]  Exhibit E, p2 of 7 Review Summary – HARU REFC1609-016.

[9]  Exhibit E, p4 of 7 Review Summary – HARU REFC1609-016.

[10]  Affidavit of Karis Ross sworn 6 April 2017.

[11] Lawler v Department of Housing and Public Works, State of Queensland [2017] QCATA 21; The State of Queensland through the Department of Housing and Public works v Frank Kimmel and Anor, unreported, QCAT, MCDT705/17, 26 April 2017.

[12]  Affidavits of Christine Town, William Noel Laverty, Susan Mill, Nicole O’Sullivan, Irene Luxmore and Russell Burkin.

[13]  Affidavits of Jessica Dwyer filed 8 February 2017 and filed by leave 6 July 2017.

[14]  Affidavit of Nicole O’Sullivan sworn 14 November 2017.

[15]  Both residents of No 2 Alba Court, immediate neighbours of Ms Simonova.

[16]  Email Nikki O’Sullivan 20 October 2016 11.10am to [email protected], [email protected], annexed to Affidavit of Gregory Martin Condon filed 29 March 2017.

[17]  Affidavit of Irene Luxmore filed 29 March 2017.

[18]  Affidavit of Gregory Martin Condon filed 29 March 2017.

[19]  (1972) 1 NSWLR 466.

[20]  Ibid, 468.

[21]  Ibid, 470.

[22]  (1982) 149 CLR 480.

[23]  [1940] 3 All ER 349.

[24]  Ibid, 360.

[25]  [2010] QCATA 27.

[26]  P 1 of 7.

[27]  Affidavit sworn 7 April 2017.

[28]  Affidavit filed 31 March 2017.

[29]  Affidavit sworn 7 April 2017.

[30]  [4].

[31]  Carla Piggott, [5].

[32]  (1953) 90 CLR 170.

[33]  Exhibit A.

[34] The State of Queensland through the Department of Housing and Public works v Frank Kimmel and Anor, unreported, QCAT, MCDT705/17, 26 April 2017.

[35]  “intentionally or recklessly”, s 297A(1)(c).

[36]  (1976) VR 654, 655.

[37]  [2010] QCATA 27.

[38]  Affidavit of Thelma Black filed 31 March 2017.

[39]  Affidavit of Jessica Dwyer filed 8 Feb 2017, [9].

[40]  Affidavit of Dolores Timms sworn 3 April 2017 and oral evidence.

[41]  Affidavit of Jessica Dwyer sworn 20 April 2017 in answer to Paragraph 30 of Affidavit of Antoneta Krzeva.

[42]  Exhibit JD-01 to Affidavit of Jessica Dwyer sworn 20 April 2017.

[43]  Affidavit sworn 5 March 2017, [10].

[44]  Affidavit filed 1 March 2017.

[45]  Affidavit of Michael Maire sworn 6 April 2017.

[46]  Service Integration Coordinator for the local Mental Health Service.

[47]  This is not available via KEIHS, but they would assist in any necessary coordination with a night time service.

[48]  Affidavit filed 30 March 2017, [30].

[49]  Affidavit sworn 5 March 2017, [19].

[50]  Registered Nurse and Care Consultant.

[51]  On Level 3 package.

[52]  Exhibit D.

[53]  Exhibit A Departmental correspondence quoted in email dated 5 July 2016 from Bruce Hatchman to Jessica Dwyer.

[54]  Exhibit E.

Close

Editorial Notes

  • Published Case Name:

    State of Queensland through the Department of Housing and Public Works v Milka Simonova

  • Shortened Case Name:

    Department of Housing and Public Works v Simonova

  • MNC:

    [2017] QCAT 328

  • Court:

    QCAT

  • Judge(s):

    Magistrate Tonkin

  • Date:

    30 Aug 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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