Niall v Mangrove Housing Association Inc
[2014] QCA 58
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- Unreported Judgment
- Appeal Determined - Special Leave Refused (HCA)
- Niall v Mangrove Housing Association Inc[2014] QCA 58
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Niall v Mangrove Housing Association Inc[2014] QCA 58
Niall v Mangrove Housing Association Inc[2014] QCA 58
SUPREME COURT OF QUEENSLAND
PARTIES: | JOHN CHARLES NIALL |
FILE NO/S: | QCAT No 412 of 2012 QCAT No 1490 of 2012 |
Court of Appeal | |
PROCEEDING: | Application for Leave Queensland Civil and Administrative Tribunal Act |
ORIGINATING COURT: | |
DELIVERED ON: | 28 March 2014 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 21 March 2014 |
JUDGES: | Margaret McMurdo P and Gotterson and Morrison JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDERS: | 1. Application for leave to appeal refused.2. Applicant to pay the respondent’s costs of the application on the standard basis. |
CATCHWORDS: | PROCEDURE – INFERIOR COURTS – QUEENSLAND – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the applicant’s tenancy was terminated by the respondent on the basis of objectionable behaviour – where an adjudicator at QCAT ordered that the tenancy be terminated and issued a warrant of possession – where the applicant sought leave to appeal to the Appeal Tribunal of QCAT and was refused – where in this Court the applicant sought leave to appeal against the Appeal Tribunal’s refusal decision – whether there were reasonable prospects of success Human Rights and Equal Opportunity Commission Act 1986 (Cth) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3), s 150(1), s 150(2), s 150(3) Racial Discrimination Act 1975 (Cth) Underwood v Queensland Department of Communities (State of Queensland) [2013] 1 Qd R 252; [2012] QCA 158, applied |
COUNSEL: | The applicant appeared on his own behalf I Klevansky for the respondent |
SOLICITORS: | The applicant appeared on his own behalf McInnes Wilson for the respondent |
[1] MARGARET McMURDO P: I agree with Gotterson JA's reasons for refusing this application for leave to appeal with costs.
[2] GOTTERSON JA: On 22 April 2013 the Appeal Tribunal of the Queensland Civil and Administrative Tribunal (“QCAT”) refused leave to John Charles Niall (“the applicant”) to apply for leave to appeal to it against a decision of the Tribunal made on 14 November 2012 by Adjudicator Gordon. By that decision, the Tribunal ordered that the residential tenancy agreement between the applicant and Mangrove Housing Association Inc (“the respondent”) be terminated from midnight on 5 December 2012 on the ground of the applicant’s objectionable behaviour. The Tribunal also ordered that a warrant of possession issue for enforcement purposes, to be in effect from 5 December 2012 until 19 December 2012.
[3] The Tribunal’s order was made upon an application which the respondent had filed with QCAT on 26 July 2012. Shortly prior to that, on 9 July 2012, the applicant had filed an application with QCAT against an eviction notice which the respondent had served on him on 6 July 2012. Both applications concerned a minor civil dispute. They were heard together by Adjudicator Gordon on 14 November 2012. In addition to the orders to which I have referred, Adjudicator Gordon also ordered that the applicant’s application be dismissed.
[4] On 29 November 2012, the applicant filed an application for leave to appeal to the Appeal Tribunal pursuant to s 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 (“the Act”). Leave to appeal was sought in respect of the orders made on the respondent’s application only. No leave was sought in respect of the decision dismissing the applicant’s application.
[5] The applicant has filed an affidavit in this Court deposing to his having received a copy of the Appeal Tribunal’s reasons on 9 May 2013. That evidence is unchallenged. I accept it. On 3 June 2013, and within the time allowed by s 151(2)(b) of the Act, the applicant filed an application for leave to appeal to this Court pursuant to s 150(1) of the Act against the Appeal Tribunal’s refusal to grant leave to appeal to it.
[6] Section 150(3) of the Act provides that an appeal against a refusal of leave to appeal to the Appeal Tribunal may be made on a question of law only and only if the party who wishes to appeal has obtained the leave of this Court to appeal. Thus the application currently before this Court is for leave to appeal against the Appeal Tribunal’s refusal decision.
[7] The very structure of s 150(3) forcefully implies, first, that leave to appeal may be given only with respect to a question or questions of law and, secondly, that in considering the exercise of the discretion to grant leave to appeal, this Court will have high regard for the prospects of success that the applicant for leave has of demonstrating error on the part of the Appeal Tribunal with respect to the question or questions of law concerned. There must be reasonable prospects of success to warrant a grant of leave.[1]
[8] The applicant’s affidavit has exhibited to it a proposed notice of appeal. This document sets out one ground of appeal only, namely:
“QCAT has denied me procedural fairness as I was not given the opportunity to present or discuss my evidence. I do seek the indulgence of the court to properly present my evidence.”
[9] At the hearing of the application, the Court directed the applicant’s attention on several occasions to the Appeal Record which contained both a transcript of the hearing before the Appeal Tribunal and the reasons of the Appeal Tribunal for its decision. Notwithstanding requests from the Court that he do so, the applicant neither identified any aspect of the proceedings before the Appeal Tribunal which he wished to contend were procedurally unfair. He did not refer to either the transcript or the reasons in order to demonstrate any procedural unfairness to him in these proceedings.
[10] A generous reading of the proposed ground of appeal is that it is intended to embrace also a contention that the Appeal Tribunal erred in law in failing to find that there had been a denial of procedural fairness to the applicant on the part of Adjudicator Gordon. During the course of oral argument in this Court, the applicant who appeared unrepresented, referred in various passages in the transcript of the proceedings before the adjudicator and in the adjudicator’s reasons which also were before this Court. The applicant did so in order to illustrate alleged denials of procedural fairness in several respects.
[11] Firstly, it was said that procedural fairness was denied to him because he is a person with health issue disabilities and he was evicted. References were made by him to the Racial Discrimination Act 1975 (Cth) and the Human Rights and Equal Opportunity Commission Act 1986 (Cth). How the eviction offended either statute was unexplained by reference to legal principle or authority. No less significantly, no argument was advanced as to how the termination of his tenancy or the issue of the warrant of possession by the Tribunal amounted to procedural unfairness in ordinary legal concepts.
[12] It may be noted that the Appeal Tribunal in its reasons dealt comprehensively with an allied point made by the applicant that he was denied procedural fairness with respect to the production of evidence to the adjudicator concerning his ill health. No error of law was demonstrated by the applicant with respect to this reasoning.
[13] Secondly, it was said that a termination of the tenancy for objectionable behaviour infringed his constitutional right to free speech. The argument advanced by the applicant for this is quite misplaced. It is plainly wrong as the reasons of the Appeal Tribunal devoted to it explain. In any event, a finding of objectionable behaviour could not, of itself, constitute procedural unfairness.
[14] Thirdly, the applicant suggested procedural unfairness on the part of the adjudicator in accepting evidence of his neighbours concerning his behaviour. According to this evidence, the behaviour included exhibiting an offensive sign as well as verbal aggression and physical intimidation towards them and their family members. It was plainly open to the adjudicator to accept this evidence and to make findings consistent with it, notwithstanding that the applicant may have contested the evidence. To do so was not a denial of procedural fairness.
[15] In summary, the applicant has failed to demonstrate a lack of procedural fairness on the part of either the adjudicator or the Appeal Tribunal. The proposed ground of appeal has no reasonable prospect of success. Accordingly, the application for leave to appeal to this Court must be dismissed. The applicant must pay the respondent’s costs. Whilst the respondent has sought costs on an indemnity basis, given the applicant’s health circumstances and their influence on his behaviour, I do not consider this to be a case for making an order of that kind.
Orders
[16] I would propose the following orders:
1. Application for leave to appeal refused.
2. Applicant to pay the respondent’s costs of the application on the standard basis.
[17] MORRISON JA: I have read the reasons of Gotterson JA and agree with his Honour and the orders he proposes.
Footnotes
[1] Underwood v Queensland Department of Communities (State of Queensland) [2012] QCA 158 at [18] and [68].