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Simonova v Department of Housing and Public Works (No 1)[2017] QCATA 143

Simonova v Department of Housing and Public Works (No 1)[2017] QCATA 143

CITATION:

Simonova v Department of Housing and Public Works (No 1) [2017] QCATA 143

PARTIES:

MILKA SIMONOVA

(Applicant/Appellant)

v

DEPARTMENT OF HOUSING AND PUBLIC WORKS

(Respondent)

APPLICATION NUMBER:

APL259-17

MATTER TYPE:

Application and Appeals

HEARING DATE:

1 December 2017

HEARD AT:

Brisbane 

DECISION OF:

Justice Carmody

DELIVERED ON:

6 December 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

THE APPEAL TRIBUNAL ORDERS THAT:

  1. The application for a stay is dismissed.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL  – PRACTICE AND PROCEDURE – STAY OF PROCEEDINGS – where the applicant has appealed against a tribunal decision terminating her tenancy – where the applicant seeks to stay the determination of the appeal pending finalisation of related discrimination complaints – whether a stay should be granted in the circumstances 

Anti-Discrimination Act 1991 (Qld) s 209(1)

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 58, 59

Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 350

APPEARANCES and REPRESENTATION (if any):

APPLICANTS/APPELLANTS

KM Hillard of counsel

RESPONDENT

MH Hindman of counsel 

REASONS FOR DECISION

  1. [1]
    The application is to stay the hearing of any appeal against the tribunal decision to terminate the applicant’s public housing tenancy for objectionable behaviour (excessive noise) pending finalisation of the applicant’s own as yet unlisted discrimination complaint arising out of the same facts.
  2. [2]
    The purpose of the appeal is to decide whether there was any vitiating error in issuing the warrant of possession.
  3. [3]
    The proposed grounds of appeal in the tenancy matter raise questions about whether the law was properly applied to the facts open on the evidence, including whether or not intent is a relevant fault element. If, as seems likely, leave to appeal is granted the applicant also proposes to argue that the discriminatory effect of the termination was a valid discretionary factor that was wrongly ignored (even though it was not raised) which overlaps with the discrimination complaint. The discrimination complaint alleges discriminatory treatment by the Department in taking steps to evict the applicant for objectionable behaviour when being noisy is an involuntary characteristic of her disability.
  4. [4]
    In these circumstances the balance of convenience is said to favour a stay because loss on appeal before the discrimination complaint is heard will probably see the respondent evicted and homeless and nullify the benefit of any relief available to the discrimination tribunal such as orders against the Department for noise mitigation measures or providing alternative, more suitable, accommodation.
  5. [5]
    The question of whether or not to grant a stay involves a choice within a permissible range of rival options. There are no mandatory or stated considerations. Exceptional circumstances are not demanded but the power is not routinely invoked.
  6. [6]
    Considerations informing the exercise of the discretion include whether:
  • granting a stay is more consistent with achieving the tribunal’s objects than denying it is;
  • the disadvantages of refusal to the applicant are no greater than those already faced;
  • granting the application will cause more than temporary loss or inconvenience to the respondent than an undertaking as to damages can cover;
  • allowing the stay will unfairly deny the respondent the fruits of success so far in the decided proceeding;
  • refusing the stay will incurably prejudice the applicant’s position upon finalisation of the pending proceeding.
  1. [7]
    Bringing about the applicant’s eviction will only be discrimination by the Department if it amounts to less favourable treatment compared to a tenant without the respondent’s characteristics of her attribute of multiple impairments.
  2. [8]
    If even temporary homelessness really is an inevitable or likely consequence for the applicant of a failed appeal the balance of convenience would strongly favour her. However, I am far from satisfied that it is and delay is a major concern where rival rights of equal status are at stake (for example, for the respondent not to be discriminated out of the only home she has and her neighbours not to be unduly bothered or vexed by her symptoms) and the basis of the discrimination complaint is less than compelling.
  3. [9]
    The applicant’s homelessness case is based on the propositions that she cannot live with her daughter if she loses the appeal and the Department recovers possession of her rented premises and she does not qualify for aged care accommodation either.
  4. [10]
    The reasons the daughter gives for not being able to accommodate the applicant even on an interim basis are:
  • travels three weeks out of every four away from the house, so living with me does not assist Mum greatly;[1]
  • my house is on a small block of land, and if any noise from mum (which I have always disputed is a disturbance) is a problem for my neighbours, the same issues may arise for me;[2]
  • I cannot afford to move to a house on a larger block of land;[3]
  • mum cannot live with me long term – when mum lived with me in the past, she refused to pay rent, she did not like to live with me, and she smoked very heavily. These were tensions which were not resolvable. Moreover, in any case, she is an independent person, and in my view, is entitled to live independently if she so wishes.[4]
  1. [11]
    In my opinion, homelessness is not a demonstrated probability if the appeal succeeds. The state has a limited responsibility for the applicant’s welfare. Her family has the primary responsibility which goes well beyond mere inconvenience.
  2. [12]
    There are no good reasons other than an unacceptable risk of homelessness justifying a stay of the appeal if leave is granted because:
  • of the stated tribunal’s objects, specifically ss 3(b), 4(b) and (c) QCAT Act;
  • the applicant is the appellant;
  • the decision under appeal was made four months ago and granting the stay will delay the appeal hearing indefinitely while in the meantime, the problem continues unabated.
  1. [13]
    I accept the Department’s submissions that the stay application is pre-emptive and is best deferred until the appeal has been decided because it will either be redundant if the termination order is overturned or, conversely, can either be made to the appeal tribunal itself if the appeal fails,[5]or, to the discrimination tribunal at any time in aid of the relief available under s 209(1)(a) and (c) of the Anti-Discrimination Act 1991 (Qld).
  2. [14]
    The warrant of possession has now lapsed and it will need to be reissued if the appeal is dismissed.[6] The appeal tribunal could be asked to authorise the chief executive (in lieu of the police) to execute the warrant on just protective conditions.
  3. [15]
    The discrimination tribunal also has ample power to stay the execution of the warrant of possession after it is issued and before the discrimination matter is decided to effectively preserve the applicant’s rights until they are finally determined.
  4. [16]
    The overall interests of justice do not support the stay. Instead they require the appeal to be heard and decided as quickly as a full consideration of its merits allows.
  5. [17]
    The application is dismissed.

Footnotes

[1] Affidavit of Antoneta Krzeva, sworn 16 November 2017, [16](l).

[2]Affidavit of Antoneta Krzeva, sworn 16 November 2017, [16](m).

[3] Affidavit of Antoneta Krzeva, sworn 16 November 2017, [16](p).

[4] Affidavit of Antoneta Krzeva, sworn 16 November 2017, [16](q).

[5] Under Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 58, 59.

[6] Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 350.

Close

Editorial Notes

  • Published Case Name:

    Simonova v Department of Housing and Public Works (No 1)

  • Shortened Case Name:

    Simonova v Department of Housing and Public Works (No 1)

  • MNC:

    [2017] QCATA 143

  • Court:

    QCATA

  • Judge(s):

    Justice Carmody

  • Date:

    06 Dec 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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