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- Unreported Judgment
Johnson v Anglicare Central Queensland QCATA 195
Johnson v Anglicare Central Queensland  QCATA 195
Anglicare Central Queensland
On the papers
6 December 2016
IT IS THE DECISION OF THE APPEAL TRIBUNAL THAT:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – IN GENERAL – where the tribunal terminated the tenancy between the parties – where the tribunal terminated on the grounds that the applicant had seriously harassed, intimidated and abused representatives of the respondent – where the applicant alleges that the tribunal made errors of fact – where the applicant seeks to adduce new evidence – whether the findings of fact are glaringly improbable or contrary to compelling inferences
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – DENIAL OF NATURAL JUSTICE – where the Queensland Civil and Administrative Tribunal Act 2009 (Qld) provides for tribunal procedure in dealing with certain litigants and witnesses – whether the applicant was afforded procedural fairness
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 29, 95, 98, 99, 147
Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 297A, 345A
Chambers v Jobling (1986) 7 NSWLR 1
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Kioa v West (1985) 159 CLR 550
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
APPEARANCES and REPRESENTATION:
This matter was heard and determined on the papers without the attendance of either party in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
- The applicant is a public or community housing tenant with a severe mental health condition and complicating chronic physical disabilities. The tribunal terminated her tenancy with Anglicare Central Queensland (Anglicare) on 10 March 2016 for objectionable behaviour under s 297A Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act).
- Anglicare relied on the application and supporting evidence as well as additional information filed on 3 March 2016.
- The appeal is proposed on multiple grounds, most relevantly including:
- failure to consider (either at all or adequately) Anglicare’s breach of its quiet enjoyment obligations as landlord;
- error of fact in finding she had been “aggressive and abusive” in dealings with Anglicare representatives;
- non-compliance with the ‘special person’ provisions of ss 98-99 QCAT Act;
- disadvantaging her as a witness by not allowing her a reasonable opportunity to call or give evidence contradicting “exaggerated and falsified” evidence that the tribunal wrongly preferred over hers;
- giving too much weight to inconsistencies and not enough to her vulnerability under pressure; and
- the eviction order is unjust in the circumstances due to its adverse consequences for her own health and that of her pets.
- The applicant requests a rehearing or reopening, if necessary, to rectify the procedural unfairness but, ‘predominantly’, asks the appeal tribunal to set aside the termination order with costs.
- She tenders additional evidence for deciding the appeal by way of rehearing, such as:
- proof of her feuding neighbour’s conviction for wilful damage to her property in 2015;
- a 2016 protection order issued in her favour against her neighbour;
- a letter to Anglicare in 2015 from her treating psychiatrist about the impact of ongoing harassment by neighbours on her mental condition; and
- a Facebook conversation with her local Member of Parliament in February 2016.
- Leave to appeal is granted to applicants who can demonstrate a reasonably arguable case of error or that it would be, for some reason, unjust to allow the orders at issue to stand. The appeal tribunal does not interfere with the outcome of a tribunal proceeding conducted according to law to remedy alleged factual errors unless the findings in question are unsupported by any evidence at all are contrary to compelling inferences or glaringly improbable.
- The tribunal has a discretion to order termination of a tenancy if it is satisfied that a statutory ground is established and the behaviour justifies termination including having regard to its repetition, frequency, seriousness, past and ongoing effects, the tenancy history and any public responsibility to other existing and prospective tenants.
- The key finding of fact is in the transcript at 1-20: 5-10, to the effect that the applicant’s alleged behaviour amounts to serious harassment, intimidation and abuse of the Anglicare representatives and neighbours which is likely to continue if a termination order is not made. That finding was well and truly open to the tribunal on the evidence.
- A finding of fact is not wrong just because it is adverse to the applicant’s case or could reasonably have been made the other way. Courts and tribunals are human and, therefore, by nature, fallible institutions. Their findings are not susceptible to scientific proof. There will always be room for debate about their accuracy, but this does not make them legally suspect or invalid. On the contrary, the law treats contestable findings of fact as being unassailable on appeal unless there is reason to believe otherwise. A mere difference of opinion does not justify appellate intervention to alter evidence and probability-based findings of fact.
“A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there was no logical connection between the evidence and the inferences or conclusions drawn.”
- The subject decision does not meet any of these descriptions and, therefore, the appeal tribunal has no authority in principle to disturb them.
- There can be an overlap between not taking account of or giving excessive weight to facts and procedural fairness requirements. For example, facts should not allowed to create an adverse effect unless the party affected has had a proper change to respond. The tribunal’s core duty to hear and determine a dispute fairly is a flexible one involving the adoption of practices and procedures that are appropriate and adapted to the circumstances of the particular case in light of the interests and characteristics of the party or witness concerned.
- The tribunal must also take all reasonable steps to ensure a party or witness understands and addresses the issues and their potential legal implications and that they are not forensically disadvantaged because of mental impairment, emotional trauma or intimidation. A review of the objective record does not reveal an unfairness connected with the applicant’s disability or vulnerabilities. The proceedings were conducted in a way that was, legally, fair enough in the circumstances. By that, I mean nothing that could reasonably have been expected to be done was omitted.
- Subjectively, the applicant is clearly aggrieved by the process, but fairness is not an absolute concept. It is approximate only and must be judged objectively. The duty is met if by those measures the applicant received a hearing that was as fair as could be reasonably expected in the circumstances.
- Finally, in deciding facts appeals the appeal tribunal’s power to hear additional evidence is constrained by the public interest in finality. Whatever else may be demanded for the reception of evidence on appeal, it must at least be relevant, credible and probative of the issues. None of the documents the applicant seeks to introduce have that quality and they are not likely to have resulted in a different or more favourable decision on the merits from the applicant’s perspective.
- The applicant has failed to demonstrate a reasonably arguable case of error that she could make good on appeal if granted leave. Accordingly, leave to appeal is refused.
 Dearman v Dearman (1908) 7 CLR 549, 561; Fox v Percy (2003) 214 CLR 118, 125-126; Chambers v Jobling (1986) 7 NSWLR 1, 10.
 RTRA Act s 297A.
 Ibid s 345A.
 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
 (2010) 240 CLR 611 .
 Kioa v West (1985) 159 CLR 550; QCAT Act s 95(1).
 QCAT Act s 29(1).
 Ibid s 99.
 QCAT Act s 147.
- Published Case Name:
Johnson v Anglicare Central Queensland
- Shortened Case Name:
Johnson v Anglicare Central Queensland
 QCATA 195
06 Dec 2016