Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Queensland v Tapim[2015] QCATA 71

CITATION:

State of Queensland through the Department of Housing and Public Works v Tapim [2015] QCATA 71

PARTIES:

State of Queensland through the Department of Housing and Public Works

(Applicant)

v

Maleta Tapim

(Respondent)

APPLICATION NUMBER:

APL026-15

MATTER TYPE:

Appeal

HEARING DATE:

13 May 2015

HEARD AT:

Brisbane

DECISION OF:

His Honour Judge Horneman-Wren SC, Deputy President

DELIVERED ON:

13 May 2015 (Ex Tempore)

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Leave to Appeal is granted.
  2. The Appeal is allowed.
  3. The decision is set aside and the matter be returned to the Tribunal for reconsideration.

CATCHWORDS:

LANDLORD AND TENANT – ACTION AND CLAIMS FOR USE AND OCCUPATION – where the Respondent had harassed neighbours including assaulting a neighbour – where residents were transferred to another property as a result – where the Department of Housing and Public Works sought a termination order for the tenancy of the Respondent

INTERPRETATION – GENERAL RULES OF CONSTRUCTION OF INSTRUMENTS – GENERAL MATTERS – whether section 297A of the Residential Tenants and Rooming Accommodation Act 2008 (Qld) requires a person who is the subject of a tenant’s conduct to occupy premises at the time proceedings are either commenced or determined – where the statutory language goes towards the status of a person at the time at which offending behaviour occurred

ADMINISTRATIVE LAW – GROUNDS FOR REVIEW – JURISDICTIONAL MATTERS – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – whether the Magistrate acting as a member of the Tribunal had jurisdiction to make a determination – whether the Magistrate held he did not have jurisdiction but made a determination on the proceedings as though he had jurisdiction – where the Magistrate failed to take into account affidavit material – where the Magistrate had jurisdiction – where the Magistrate failed to award natural justice and failed to take into account a relevant consideration

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 146

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

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr Keane of Counsel instructed by Crown Law

RESPONDENT:

Ms Craven of Aboriginal and Torres Strait Islander Legal Services

REASONS FOR DECISION

  1. [1]
    On 22 October 2014, a Magistrate sitting as a member of QCAT dismissed an application brought by the State of Queensland, acting through the Department of Housing and Public Works, under section 297A of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld), by which it sought a termination order from the Tribunal terminating the tenancy of Ms Tapim. The State of Queensland seeks leave to appeal from the Tribunal’s decision.  Leave is required because it was a proceeding in the minor civil disputes jurisdiction of the Tribunal.
  2. [2]
    The proceedings before the Magistrate were conducted on behalf of the department by a Ms Coggan, who is not legally qualified but is a departmental officer.  Ms Tapim appeared for herself, but with the assistance which was permitted of Ms Craven, her solicitor, who appears for her on this application.  Ms Craven was permitted to sit at the bar table with Ms Tapim during course of the hearing before the Magistrate.
  3. [3]
    At the commencement of the proceedings the Magistrate swore both Ms Coggan and Ms Tapim and proceeded to ask Ms Coggan what the department was seeking and why. After indicating the relief which the department was seeking, Ms Coggan raised that Ms Tapim had been found guilty of punching another neighbour in the face and that there had also been consistent harassment from that time as well.
  4. [4]
    That statement was consistent with the grounds for seeking the termination which had been set out in the department’s application filed on 29 September 2014 in which four incidents, said to be confirmed by information received from Queensland police, were listed.  The first of those instances in time was on 9 January 2014, which was the occasion giving rise to the charge of assault which Ms Tapim later faced, pleaded guilty to, and was fined in respect of.
  5. [5]
    The application then listed three further occasions on 5 March, 11 March and 4 April on which the police attended at the premises.  In respect of each of the March events, it was alleged that Ms Tapim was harassing and abusing a neighbour and trying to gain access to that neighbour’s residence.  In respect of the 11th March incident, it was said that Ms Tapim was harassing and abusing neighbours.  In relation to the 4th April incident, it was said that Ms Tapim was verbally abusing a neighbour and making threats to assault her.
  6. [6]
    Ms Coggan raised with the Magistrate that she had two affidavits from the two residents who were at the property which the department had since vacated due to the ongoing harassment and transferred to another property.  Ms Coggan indicated that those persons were actually in the waiting room at the court and available if needed.
  7. [7]
    The Magistrate did not at that point receive the affidavits to which Ms Coggan had referred, but did not refuse their reception either.  Rather, having said “okay”, asked “so far as those two people who have, because of the incidents with Ms Tapim, have been moved to another premises, has there been any other problems with any other tenants?”  Ms Coggan responded:

We moved them straightaway when we lodged to the court.  I haven’t heard of anything since, your Honour, but that was on the date that we lodged court that we also moved these tenants.  It was continual right up until that day.

  1. [8]
    Mr Keane of counsel, who appears for the State on this application, has fairly indicated that on his instructions, although the application was filed on 29 September 2014, the tenants were, in fact, moved on 26 September 2014.  That date will become material when I say something further in relation to the affidavit of Ms Stone, the tenant.
  2. [9]
    Immediately following that passage from Ms Coggan to which I have referred, the Magistrate said:

Up until then – yes, yes, Ms Tapim, do you wish to say anything?

  1. [10]
    Ms Tapim then referred to an affidavit which had been filed and then informed the Magistrate that she had gone to court, having been charged in March in relation to the January incident, and said:

I have no thing with her ever since then but I’ve got two of my support letters that I want to give to you.

  1. [11]
    Those support letters seem to have been received. 
  2. [12]
    His Honour then proceeded to hear submissions by Ms Craven on behalf of Ms Tapim, having previously asked Ms Coggan and Ms Tapim if they had any questions for each other. 
  3. [13]
    His Honour did not, however, return to the issue of the affidavits which Ms Coggan had indicated she wished to rely upon.
  4. [14]
    Submissions were then made by Ms Craven concerning the operation of the legislation, particularly that the proper construction of section 297A was such that the Tribunal lacked jurisdiction to deal with the application in circumstances in which the persons who had previously occupied premises nearby had been moved by the department – effectively that they were no longer persons occupying premises as referred to in section 297A.
  5. [15]
    Having heard from Ms Craven, his Honour then asked Ms Coggan what she wanted to say in relation to the matter.  Ms Coggan commenced by repeating that the tenants had been moved because of the fact of continual harassment, and then again referred to the affidavits that she had available, including that the affidavit of the resident of the property stated that there had been ongoing harassment and that she feared for her life and Ms Coggan said that “this was why we moved them on from the property.”
  6. [16]
    Immediately following that Ms Craven raised an issue concerning discretionary considerations under section 435A.  That is, that the moving of the tenants was relevant to that issue as well as the jurisdictional point which she had previously raised.
  7. [17]
    Immediately following that observation by Ms Craven, his Honour then went on to dispose of the application. 
  8. [18]
    His Honour’s reasons were brief and warrant setting out in full.  He said:

Okay.  Well, the situation seems to be, as I understand it from the evidence, that Ms Tapim has been a tenant of the unit block for a period of five years, or over five years, and she – her evidence that apart from the problems in relation to these particular tenants, there have been no problems with any other tenants or even people in the area, and the situation is that, whilst there was, and Ms Tapim has been dealt with in respect of a charge of assault, and has been fined in respect of that offence, Ms Tapim’s evidence is that since they have moved out there is no issues as far as her relationship with any other tenants occupying the unit block, and seeks to stay there.

The situation as far as the applicant’s concerned is that, even after Ms Tapim was charged and dealt with in respect of the charge laid against her, and with the other tenant as the complainant, there was still ongoing issues and they continued up until the time that two things happened.  The complainant in the charge against Ms Tapim was located to another premises and these proceedings were undertaken. 

As I understand the situation at the time of commencing these proceedings, the tenant against whom Ms Tapim’s objectionable behaviour was directed was still a tenant of the premises.  The situation is at the time of hearing the complainant is no longer a tenant, and on that basis Ms Craven, on behalf of Ms Tapim, says there’s no jurisdiction under section 297A for the applicant to seek the termination of the tenancy.

It is the situation, as I understand it, that at the time of commencing this action there was jurisdiction but it is a case where that no longer applies but also taking into account the fact that Ms Tapim has resided in the premises for over five years and then, apart from this incident, there has not been any ongoing problems.  There’s no suggestion that Ms Tapim, whilst she has had some difficulty as far as her rent goes, is otherwise a person who is not a suitable tenant.

It seems to me that in view of the fact that the person or persons with whom Ms Tapim had issues is no longer living in the unit block, it seems to me that in those circumstances Ms Tapim’s eviction is not justified and I dismiss the application.

  1. [19]
    There is dispute between the parties as to how his Honour’s reasons are to be interpreted.  Mr Keane for the applicant submits that his Honour acceded to the submissions of Ms Craven, that there was no jurisdiction in the Tribunal to exercise in the application under section 297A, and declined to exercise jurisdiction.
  2. [20]
    The further observations which his Honour made, which might be described as going to substantive merit, were not, on Mr Keane’s submission, an exercise by his Honour of jurisdiction to hear and determine the application on its merits.  Mr Keane submits that the absence of any reference to the particular statutory considerations makes good, or demonstrates that point.
  3. [21]
    For her part, Ms Craven, on behalf of the respondent, also contends that his Honour did decide that there was no jurisdiction to entertain the matter, but then went on, effectively, to consider the issues relevant to an exercise of jurisdiction and to indicate as to why it was that the application ought be dismissed in any event.
  4. [22]
    On this application, Ms Craven maintains on behalf of the respondent that on a proper construction of section 297A of the Residential Tenancies and Rooming Accommodation Act there was no jurisdiction in the Tribunal to deal with this application as at the time at which it did, and that the Magistrate committed no error in refusing jurisdiction.
  5. [23]
    The circumstances in which the Tribunal will grant leave to appeal are well recognised and they include that there is a question of general importance that a hearing of the appeal will assist in resolving.  Mr Keane urges, apart from other grounds on which leave to appeal should be granted, that the proper construction of section 297A of the Residential Tenants and Rooming Accommodation Act is a matter of general importance, and on that basis leave ought be granted.  Ms Craven acknowledges that it is a matter of general importance, but says that nonetheless leave ought be refused. 
  6. [24]
    A further reason for which leave may be granted is where there is a reasonably arguable case for error in the primary decision.  In my view, section 297A of the Residential Tenancies and Rooming Accommodation Act is a provision which affects many residents of public and community housing and the circumstances in which it is able to be invoked is a matter of general importance and, on that basis, leave to appeal should be granted.  In my view, there is also a reasonably arguable case for error in the primary decision and leave ought be granted for that reason also.
  7. [25]
    The first issue that then arises on the appeal is the proper construction of section 297A, and particularly on the case advanced by the respondent, whether there is no jurisdiction to exercise powers under section 297A when, as here, the person who had previously occupied premises, who may have been subject to the conduct of the tenant or other person, no longer occupies those premises.
  8. [26]
    As this case has played out, the issue is alive as to whether or not the application can be brought subsequent to the vacating, or subsequent to that person no longer occupying, the premises or whether, the proceedings having been commenced whilst the person occupied the premises, they can be continued and determined if in the intervening period of time the person ceases to occupy the premises.
  9. [27]
    Ms Craven contends that the language used in section 297A by, particularly, its repeated use of the expression “persons occupying premises” speaks in the present tense and therefore requires the person to be occupying the premises at the relevant time, be that the commencement of the proceedings or their determination.
  10. [28]
    Mr Keane on behalf of the State submits that other language used in section 297A speaks in the past tense.  For example, section 297A(1)(a) speaks of circumstances in which the tenant, an occupant, a guest of the tenant, or a person allowed on the premises by the tenant has harassed, intimidated or verbally abused certain persons.  That language is expressed in the past tense.
  11. [29]
    The present tense is introduced by, for example at section 297A(1)(a)(ii), the recipient of the harassment, intimidation or abuse being a person occupying or allowed on premises nearby.  Similarly, in section 297A(1)(b) reference is made to circumstances in which the tenant, occupant, guest or person allowed on the premises by the tenant is causing or has caused a serious nuisance to persons occupying premises nearby.
  12. [30]
    Similarly, in section 297A(1)(c), circumstances are referred to in which the tenant, occupant, guest or person allowed on the premises by the 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.
  13. [31]
    Ms Craven submits that the purpose of section 297A is to enable the department to protect existing tenants.  She says that this is demonstrated by the repeated use of “persons occupying premises.” 
  14. [32]
    In my view, the construction favoured by Ms Craven strains too much the statutory language of section 297A.  For example, on a clear and plain reading of section 297A (1)(a)(i), an application is able to be brought to the Tribunal for the termination of a tenancy:

…because the tenant, an occupant, a guest of the tenant or a person allowed on the premises by the tenant has harassed, intimidated or verbally abused the lessor or lessor’s agent.

  1. [33]
    In those circumstances, it cannot be said that the purpose of section 297A is to protect tenants at all, let alone existing tenants.  In my view, the expression “persons occupying premises” speaks in the present tense only in the sense that it speaks of what the status of that person was at the time at which the offending behaviour of the tenant, occupant, guest, etcetera occurred. That is, at the time at which the person was harassed, intimidated or verbally abused they were occupying premises, or at the time at which serious nuisance was caused to them they were occupying premises. 
  2. [34]
    Of course, if the conduct is ongoing such that it is, for example under section 297A(1)(b), causing in the present tense serious nuisance to persons who at that time are in occupation of premises, then it will apply equally in those circumstances.
  3. [35]
    In my view, such a construction as that which I favour is supported by the extrinsic material to which reference is able to be had pursuant to section 14A of the Acts Interpretation Act 1954 (Qld).
  4. [36]
    The section 297A was introduced by the Residential Tenancies and Rooming Accommodation and Other Legislation Amendments Bill 2013.  The objects of that bill included to amend the Residential Tenancies and Rooming Accommodation Act to, amongst other things, support the implementation of the government’s new antisocial behaviour policy.
  5. [37]
    In respect of clause 13 of the Bill which introduced new section 297A, the following was said:

Clause 13 inserts new 297A.  Section 297A is wider than section 297 but the section 297A allows the lessor, here the State or a community housing provider, to apply to QCAT for a termination order where objectionable behaviour as defined in the section is engaged in by the tenant, an occupant, guest or a person the tenant allows on the premises. 

Section 297A also broadens the scope of objectionable behaviour to include situations where the tenant, an occupant or a guest or a person allowed on the premises by the tenant

and then sets out the provisions of section 297A subsection (1).

  1. [38]
    The explanatory note goes on to say:

In this section, a lessor means the chief executive of the department in which the Housing Act 2003 is administered acting on behalf of the State or community housing provider.  Section 297A is intended to be wider than section 297 because the Department of Housing and Public Works has encountered many cases of antisocial behaviour in public housing properties.  It is considered that the tenant must take responsibility for the behaviour referred to in section 297A

  1. [39]
    In circumstances in which an occupant or a guest or a person allowed on the premises by the tenant has engaged in the various forms of antisocial behaviour, it may well be that such a person themself is no longer at the premises of the tenant, yet it would seem clear that the intention is that an application for termination may be made under section 297A in respect of conduct by those persons. 
  2. [40]
    If the conduct by those persons was in the past, it might still be directed to persons who remain occupying other premises.  However, the protected purpose advanced by Ms Craven would not seem to arise;  that is, it  would not be the tenant themself but another person who had engaged in the conduct, yet it is the intent of the legislation that the tenancy could be terminated for that conduct. 
  3. [41]
    As Mr Keane also submits, under section 297A(1)(a)(ii), the person who was harassed, intimidated or verbally abused may only be a person who had been allowed on nearby premises.  In those circumstances, continued occupancy is quite clearly not requisite. 
  4. [42]
    It would also seem an odd construction in that it would require the department to first establish ongoing occupancy by the person subject to the antisocial behaviour before the application could be made under section 297A. 
  5. [43]
    For those reasons, I am of the view that the Tribunal did have jurisdiction under section 297A to deal with the application before it.  The question remains whether the learned Magistrate sitting as a member of the Tribunal refused or declined jurisdiction, or in fact exercised it. 
  6. [44]
    As I have noted, both parties effectively contend that his Honour found a lack of jurisdiction.  However, in my view, reading his Honour’s reasons in full and in context, his Honour, having made observations about jurisdiction, to the extent that he could be said to have refused it, only does so in saying that:

As I understand it, that at the time of the commencing of this action, there was jurisdiction, but it is a case where that no longer applies. 

  1. [45]
    Immediately following that, however, his Honour went on to make the observations about the substantive merit to which I have referred before.  Particularly, his Honour concluded with the observation that in the circumstances which he had set out, Ms Tapim’s eviction was not justified. 
  2. [46]
    The expression used by his Honour is of some import, in my view, because it is an adoption of the statutory language of section 345A.  Section 345A provides that if an application is made to the Tribunal for a termination order because of objectionable behaviour, the Tribunal may make the order if it is satisfied (a) that the applicant has established the ground of the application and (b) the behaviour justifies terminating the agreement. 
  3. [47]
    In my view, his Honour was clearly turning his mind to the statutory language of section 345A in concluding that the eviction was not justified immediately before he dismissed the application. 
  4. [48]
    In the consideration of the substantive issues before that, his Honour had also referred to the fact that Ms Tapim had resided in the premises for over five years and apart from what he described as “this incident”, there had not been any ongoing problems. He referred then also to her situation with rental and the view that she was a suitable tenant.
  5. [49]
    In my view, those are considerations which may fairly be described as matters relating to Ms Tapim’s tenancy history, which is a matter to which regard must be had in determining whether or not the Tribunal was satisfied that the behaviour justified terminating the agreement as required by section 345A(3)(b) of the Act. 
  6. [50]
    His Honour also considered the circumstances of the other tenants no longer living in the unit block.  That, in my view, was a consideration relevant to whether neighbouring residents or other persons were likely to be subjected to objectionable behaviour if the agreement was not terminated, which is a consideration to which regard must be had in forming a view as to whether the termination of the tenancy was justified pursuant to section 345A(3)(a).
  7. [51]
    It is true, as Mr Keane submits, that his Honour did not directly relate those matters to which he had referred to those statutory provisions; but in the discharge of a busy jurisdiction such as this, I would accept that a fair reading of his Honour’s reasons would conclude that he did turn his mind to those matters and take them into consideration. 
  8. [52]
    On the appeal, the applicant submits that the learned Magistrate erred in not admitting into evidence and considering the affidavits which Ms Coggan had sought to tender.  As I have already observed, no ruling was made by his Honour in relation to that and no reasons are exposed in his Honour’s brief disposition of the matter as to why that course wasn’t followed;  that is, the course of permitting Ms Coggan to rely upon those affidavits. 
  9. [53]
    Ms Craven submits that at no stage did Ms Coggan formally seek to tender the affidavits into evidence, having indicated that she had them there.  With respect, that criticism is somewhat harsh of a person who is not a lawyer and who had raised on two occasions that she had the affidavits there and made it apparent that she wished to rely upon them and on the first of those occasions, made it known that the deponents were available if required.  Ms Craven submits that it is not for the Tribunal member to direct the applicant as to what material the applicant should seek to place before them. 
  10. [54]
    It is to be borne in mind that section 28 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) provides at subsection (1) that: 

The procedure for a proceeding is at the discretion of the Tribunal. 

And at subsection (2) that:

In all proceedings, the Tribunal must act fairly in accordance with the substantial merits of the case. 

And by subsection (3), that: 

In conducting the proceeding, the Tribunal must observe the rules of natural justice. 

By subsection (c): 

May inform itself in any way it considers appropriate. 

And by subsection (d): 

Must act with as little formality and technicality and with as much speed as the requirements of the Act, any enabling Act or the rules and a proper consideration of the matters before the Tribunal permit. 

  1. [55]
    Subsection (3)(e) also requires the Tribunal to ensure so far as is practicable that all relevant material is disclosed to the Tribunal to enable it to decide the proceeding with all the relevant facts. 
  2. [56]
    Subsection (4) of section 28 provides that: 

The Tribunal may admit into evidence the contents of any document despite the non-compliance with any time limit or other requirement under the Act or enabling Act or the rules relating to the document or its service.

  1. [57]
    Bearing those matters in mind, it is to take too much of a formal view to say that Ms Coggan did not formally seek to tender the affidavits.  In my view, having raised, twice, the desire to rely upon the affidavits, the Magistrate ought to have entertained at least the placing of that evidence before the Tribunal. I say entertained because other matters which Ms Craven raises include that the affidavits themselves were sworn on 26 September 2014, but were not filed with the application on 29 September 2014.  She says that no explanation has been provided, even now, as to why those affidavits were not previously filed and suggests that there may have been a denial of natural justice occasioned to her client in those circumstances. 
  2. [58]
    Regrettably, the hearing before the Magistrate never progressed to the stage where those issues may have been ventilated and whether any prejudice that may have been suffered by Ms Tapim by the reception of the evidence at that point in time may have been debated.  It may have been that if there was such prejudice, it could have been ameliorated by an adjournment of the proceedings; but as I say, the proceedings simply never reached that point. 
  3. [59]
    It is to be equally observed in so far as formality is concerned, that no indication was given by Ms Craven that objection would be taken to the affidavits at either time at which is Ms Coggan raised her desire to rely upon them. 
  4. [60]
    I noted earlier in these reasons that the significance of the date of the tenants having been moved on the 26th of September 2014 was something to which I would would return.  That is the date upon which Ms Stone swore her affidavit.  In that affidavit, which was ultimately not before the Magistrate, Ms Stone expressed her concerns for her own personal safety and for that of her children.  In those circumstances, it is perhaps understandable as to the timing by which Ms Stone and her family were moved from their accommodation. 
  5. [61]
    It is also to be noted in so far as the criticism that the affidavits were not filed with the application on 29 September, that an affidavit of Ms Coggan which was filed in support of the application referred at, paragraph 9, to her having received two further affidavits completed by the complainant and another witness.  So the existence of the affidavits was disclosed in the material which was filed in support of the application.  Ms Coggan’s affidavit was sworn on the date of filing; that is, the 29th of September 2014.  Had it been received by the Magistrate, the affidavit of Ms Stone would have rendered contentious certain of the limited evidence which had been given by Ms Tapim. 
  6. [62]
    Ms Tapim, in the passage of evidence I quoted earlier, referred to having no thing with Ms Stone ever since she was charged for it in March, or went to court, depending on the interpretation of her evidence.  Had Ms Stone’s affidavit been received and considered, it may have been that contention around those issues, particularly in light of the grounds set out in the application, may have been exposed. 
  7. [63]
    Perhaps more importantly, however, is that one of the matters to which regard must be had under section 345A(3)(a) is any serious or adverse effects on neighbouring residents or other persons. In my view, the information contained in Ms Stone’s affidavit relating to her concern for her own safety and that of her children is a matter relevant to the issue of serious or adverse effects to which regard was required to be had by the Magistrate.  It is clear from the words “on neighbouring residents or other persons”, as used in subsection (3)(a) of section 345A, that such serious or adverse effects are not limited to those persons who are, or remain, neighbouring residents or occupants of nearby premises.  It is true that the Magistrate went on to consider the issue of whether such persons were likely to be subjected to objectionable behaviour if the agreement wasn’t terminated by his consideration of the fact that Ms Stone and her family had been moved;  however, he did so in the absence of knowledge of the extent of any serious or adverse effects which they may have suffered, which, even in circumstances of their having moved, remained relevant considerations to which regard was required to be had.
  8. [64]
    For those reasons, I am of the view that there has been a denial of natural justice to the Department and that the learned Magistrate erred in law in that regard.  That denial of natural justice led to a failure to consider a matter required to be considered in the exercise of the jurisdiction under section 345A(1)(b), by operation of section 345A(3)(a), which also is an error in the exercise of the jurisdiction. 
  9. [65]
    To the extent that his Honour’s findings may be that he declined to exercise jurisdiction under section 297A, I would find that his Honour erred in that regard, such that it would be jurisdictional error to decline jurisdiction.  If, however, as I consider his Honour did, he went on to exercise jurisdiction in considering the application, notwithstanding the reservations about jurisdiction which he had expressed, I am of the view that he erred in the exercise of that jurisdiction, and the appeal, for those reasons, ought be allowed.
  10. [66]
    The question remains as to what should happen in terms of section 146 of the Queensland Civil Administrative Tribunal Act in disposition of the appeal.  Whilst, in its written submissions, the State submitted that the Appeal Tribunal might substitute its own decision in this matter, in oral submissions before me, Mr Keane has submitted that the more appropriate course would be for the matter to be remitted to the Tribunal.  Ms Craven agrees that that is the more appropriate course. 
  11. [67]
    I too agree, particularly because one of the matters to which regard must be had under section 345A(3)(b) is the tenancy history of the tenant.  That tenancy history has now continued since 22 October 2014, and, for the Tribunal to substitute a decision now would, in my view, be to deny Ms Tapim the opportunity to give evidence, which she may choose to, in relation to that issue.
  12. [68]
    In my view, the appropriate course is to set aside the decision and return the matter to the Tribunal, differently constituted, for reconsideration. 
  13. [69]
    Section 146(c)(i) permits the Appeal Tribunal to return the matter for reconsideration with or without the hearing of additional evidence as directed by the Appeal Tribunal. I would direct that, on the reconsideration of the matter, the Tribunal hear the additional evidence contained in the affidavits of Emily Eileen Stone sworn 26 September 2014, Ashley Douglas Robertson sworn 26 September 2014, and Julian Coggan sworn 21 January 2015.  I would also direct that the Tribunal hear any additional evidence which Ms Tapim may wish to adduce by affidavit concerning the mandatory grounds set out in section 345A(3) of the Residential Tenancies and Rooming Accommodation Act 2008 and any of the discretionary grounds set out in section 345A(2).
  14. [70]
    The directions which I have given concerning the further hearing of evidence extend to hearing any cross-examination by the parties on any of that affidavit material.  I would direct that Ms Tapim file and serve and further affidavit material within 28 days of the publication of the written reasons, which will be published very shortly, and I would direct that the further hearing of the matter be listed for a date not before 21 days after the filing of any further affidavit material by Ms Tapim.
Close

Editorial Notes

  • Published Case Name:

    State of Queensland through the Department of Housing and Public Works v Maleta Tapim

  • Shortened Case Name:

    Queensland v Tapim

  • MNC:

    [2015] QCATA 71

  • Court:

    QCATA

  • Judge(s):

    Horneman-Wren DP

  • Date:

    13 May 2015

Appeal Status

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

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.