Foster v Horizon Housing Company
[2016] QCATA 75
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- Unreported Judgment
- Foster v Horizon Housing Company[2016] QCATA 75
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Foster v Horizon Housing Company[2016] QCATA 75
Foster v Horizon Housing Company[2016] QCATA 75
CITATION: | Foster v Horizon Housing Company [2016] QCATA 75 |
PARTIES: | David Foster (Applicant/Appellant) v Horizon Housing Company (Respondent) |
APPLICATION NUMBER: | APL389 -15 |
MATTER TYPE: | Appeals |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Stilgoe OAM |
DELIVERED ON: | 20 May 2016 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
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CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCIES – where tenant parked in no parking zone – where repeated breaches – where tenancy terminated for repeated breaches – where new issue raised on appeal – whether grounds for leave to appeal House v The King (1936) 55 CLR 499 University of Wollongong v. Metwally (No. 2) [1985] HCA 28 at p 71 Pickering v McArthur [2005] QCA 294 Till & Anor v Rose [2016] QCA 127 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
- [1]David Foster lives in a rental unit a Labrador managed by Horizon Housing Company. The complex has no on-site parking. Mr Foster repeatedly parked his car in a spot outside the common room, obstructing a fire escape, and in a spot clearly marked “no parking”. Horizon breached Mr Foster six times. Eventually, it filed a claim in the tribunal for a termination order. The tribunal did terminate Mr Foster’s tenancy on the basis of repeated breaches.
- [2]Mr Foster wants to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]
- [3]Mr Foster says the tribunal did not give appropriate consideration to the impact of his medical condition on his need to park close to his unit. He says that the tribunal did not give appropriate consideration to the fact that he did not park in the prohibited area all the time but only when his medical condition required him to do so. He says the tribunal did not give appropriate consideration to his evidence that he did not “with malevolent intent” disregard the no parking condition but did so only when compliance with the bylaw would have resulted in humiliation and an assault on his dignity. He says the tribunal did not consider that the relevant bylaw was discriminatory.
Did the tribunal give appropriate consideration to Mr Foster’s medical condition?
- [4]Mr Foster says that the tribunal was aware that he suffered from prostate cancer. There is no written evidence on this file that supports such a finding. During the hearing, Mr Foster did not refer to his condition. He did not argue that the condition was discriminatory. He did not argue that he needed to park in that spot because of his condition. Instead, he argued that the lack of parking was a planning and management issue.[3] He argued that he only intended to park in the spot for a short time but he “forgot”.[4] At the last minute, Mr Foster told the tribunal he was a “poor sick pensioner”[5] but that is not the same as specific evidence that his medical condition meant he had to park in this spot.
- [5]In deciding an application for termination for repeated breaches, the tribunal must have regard to:[6] the seriousness of the breach; how long the tenancy has existed; the period in which the breaches occurred; the remaining term of the tenancy; and any other thing the tribunal considers relevant.
- [6]The tribunal must exercise its discretion in making a decision to terminate. When there is an appeal against the exercise of a discretion, the Appeal Tribunal will not interfere unless it can be shown that the tribunal acted upon a wrong principle, or made mistakes of fact which affected the decision, or was influenced by irrelevant matters.[7] Just because the Appeal Tribunal might have exercised the discretion differently is not a basis for changing the decision: it must be shown that the decision is plainly unjust or unreasonable, and involved a clear misapplication of the discretion.[8]
- [7]The tribunal said:[9]
… it does seem excessive, in some respects, to actually remove – I’m assuming an otherwise good tenant from their property on this basis; but given the number of breaches, it’s difficult for me to deny the application.
- [8]The tribunal took into account that fact that Mr Foster parked in the no parking area six times.[10] The tribunal took into account that it was dangerous for Mr Foster to park in that particular spot.[11] It took into account that this was not an accidental breach.[12] The tribunal offered Mr Foster a longer period to find alternative accommodation but he did not engage with the tribunal on that issue until after the order was made.[13] The transcript shows that the tribunal exercised its discretion appropriately. The decision is not, in the circumstances, unjust or unreasonable and I can find no reason to set aside the tribunal’s exercise of its discretion.
Discrimination under the Disability Discrimination Act 1992 (Cth)
- [9]In his submissions on appeal, Mr Foster raised the issue that the termination was discriminatory under the Disability Discrimination Act.
- [10]As I have observed, Mr Foster did not raise this argument at the hearing. Generally, a party is bound by the case put to the tribunal below. It is contrary to general principles, and the objectives of the tribunal[14] to allow a party to raise a new argument on appeal except in an exceptional case.[15]
- [11]The issues raised by this submission are complex, would require fresh evidence and submissions and is more properly dealt with by the Human Rights Commission or the Queensland Anti-Discrimination Commission. To allow Mr Foster to rely on this submission, at such a late stage of the proceeding, would be contrary to the general principle that parties should be bound by their case at trial and that finality of litigation is appropriate.
- [12]There is no reasonably arguable case that the tribunal was in error. Leave to appeal should be refused. The stay granted on 14 October 2015 is vacated and a warrant of possession should be reissued.
Footnotes
[1]QCAT Act, s 142(3)(a)(i).
[2] Pickering v McArthur [2005] QCA 294 at [3].
[3]Transcript page 1-5, lines 36 – 38, page 1-9, lines 36 – 39.
[4]Transcript page 1-5, lines 45 – 47; page 1-6, lines 22 – 24; page 1-8, lines 46- 47; page 1-10, lines 7 – 8.
[5]Transcript page 1-11, line 7.
[6]Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 347(2).
[7]House v The King (1936) 55 CLR 499, at 504.
[8] Lovell v Lovell (1950) 81 CLR 513.
[9]Transcript page 1-11, lines 35 – 39.
[10]Transcript page 1-12, lines 10 – 12; lines 33 – 34.
[11]Transcript page 1-13, line 41.
[12]Transcript page 1-13, line 45.
[13]Transcript page 1-15, lines 41 – 45.
[14]QCAT Act ss 3(b), 4(c).
[15]University of Wollongong v. Metwally (No. 2) [1985] HCA 28 at p 71; Till & Anor v Rose [2016] QCA 127.