Lawler v Department of Housing and Public Works, Queensland
[2017] QCATA 21
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- Lawler v Department of Housing and Public Works, Queensland[2017] QCATA 21
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Lawler v Department of Housing and Public Works, Queensland[2017] QCATA 21
Lawler v Department of Housing and Public Works, Queensland[2017] QCATA 21
CITATION: | Lawler v Department of Housing and Public Works, State of Queensland [2017] QCATA 21 |
PARTIES: | Peter Lawler (Applicant/Appellant) |
| v |
| Department of Housing and Public Works, State of Queensland (Respondent) |
APPLICATION NUMBER: | APL272-16 |
MATTER TYPE: | Appeals |
HEARING DATE: | 6 February 2017 |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member O'Callaghan |
DELIVERED ON: | 17 February 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | APPEAL – LEAVE TO APPEAL – TERMINATION OF PUBLIC HOUSING TENANCY – Application made because of objectionable behaviour – whether adjudicator erred in the exercise of the discretion that objectionable behaviour justified termination – whether mental illness taken into account in the exercise of the discretion – whether error of law not to take mental illness into account – whether view that Department had no jurisdiction to deal with the mental illness of the appellant led to an error of law in failing to consider this in the exercise of the discretion PROCEDURE AND EVIDENCE – PROCEDURAL FAIRNESS AND NATURAL JUSTICE – whether relying on hearsay evidence a denial of natural justice – whether appellant denied an opportunity to present all relevant material – role of Tribunal in ensuring all relevant material disclosed Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 12, s 28, s 142, s 146 Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 297A, s 345A, s 349A Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Ericson v Queensland Building and Construction Commission [2014] QCA 297 Kioa v West (1985) 159 CLR 550 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Pickering v McArthur [2005] QCA 294 Underwood v Queensland Department of Communities (State of Queensland) [2012] QCA 158 Veal v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 |
APPEARANCES: |
|
APPLICANT: | Peter Lawler |
RESPONDENT: | Deapertment of Housing and Public Works |
REPRESENTATIVES: |
|
APPLICANT: | Mr Peter Limbers of Ashurst |
RESPONDENT: | Mr CA Baume, Department of Housing and Public Works |
REASONS FOR DECISION
- [1]On 21 June 2016 the Queensland Civil and Administrative Tribunal (the Tribunal) made the following orders:
- The residential tenancy agreement between the parties be terminated as from midnight on the 14 August 2016 on the grounds of objectionable behaviour.
- A warrant of possession to issue authorising a police officer to enter the premises at 4/72 McLean Street, Coolangatta Qld 4225.
- The warrant shall take effect on 15 August 2016 and remain in effect for 14 days, to expire at 6:00pm on 28 August 2016.
- The warrant be executed as soon as reasonably practicable after taking effect.
- Entry under the warrant shall only be between the hours of 8:00am and 6:00pm.
- The counter application filed 7 June 2016 is dismissed.
- [2]On 10 August 2016 an application for leave to appeal was filed which also sought a stay of the warrant until the appeal was heard. An interim order was made suspending the operation of the termination order and warrant on 16 August 2016.
Grounds of Appeal
- [3]The grounds of appeal on which the applicant intends to rely, if successful in his application for leave to appeal, were formulated as follows:
- In ordering that the tenancy of Peter Lawler be terminated under s 345A of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘the Tenancy Act’) the Tribunal erred in finding that the objectionable behaviour justified terminating the tenancy.
- In ordering that the tenancy of Peter Lawler be terminated, the Tribunal erred by failing to ensure that all relevant material was disclosed to the Tribunal to enable it to decide the proceedings with all relevant facts pursuant to s 28(3)(e) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
- [4]The powers of the Appeal Tribunal are dictated by the grounds of appeal, in particular whether the appeal involves a question of law (s 146) or a question of fact or a question of mixed law and fact (s 147). The grounds of appeal are errors of law: ground 1 because it disputes the applicability of the law to the findings of fact and ground 2 because it is a dispute on procedural grounds.
- [5]Section 146 of the QCAT Act provides that in deciding an appeal against a decision on a question of law only the Appeal Tribunal can confirm or amend the decision; set it aside and make its own decision; set aside the decision and return the matter to the Tribunal for reconsideration, with any directions it considers appropriate; or, make other orders it considers appropriate.
- [6]Section 146 does not entail any re-hearing of the matter, whether on the evidence below or on fresh evidence. For this reason, it is only if the determination of the question of law is capable of resolving the matter in its entirety in favour of the appellant that the Appeal Tribunal will be in a position to substitute its own decision.[1]
Leave to appeal
- [7]
- [8]In determining whether to grant leave under s 142 the Appeal Tribunal has applied the principles in Pickering v McArthur:
Leave will usually be granted only where an appeal is necessary to correct a substantial injustice to the applicant and there is a reasonable argument that there is an error.[4]
- [9]In making it a statutory requirement that leave be obtained to appeal a decision in a minor civil dispute, Parliament clearly intended that the discretion should be favourably exercised only where there was a substantial reason for permitting an appeal.
- [10]With that in mind, we will now set out the substance of each ground and consider each of their merits.
Ground 1 – Tribunal made an error of law in concluding that termination was justified
- [11]The proceeding before the Adjudicator was an application made because of objectionable behaviour.[5]
- [12]The appellant does not dispute that the ground for the application has been established. In other words, the appellant does not dispute that he has engaged in objectionable behaviour. However, the appellant disputes the “finding of law” that the behaviour justifies terminating the tenancy agreement under s 345A(1)(b) of the Tenancy Act.
- [13]Under s 297A of the Tenancy Act, the lessor may apply to a tribunal for a termination order because the tenant:
- has harassed, intimidated or verbally abused the lessor or lessor’s agent or a person occupying or allowed on premises nearby;
- is causing, or has caused, a serious nuisance to persons occupying premises nearby; or
- 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.
- [14]The lessor is the chief executive of the department in which the Housing Act 2003 (Qld) is administered, acting on behalf of the State. Here that is the Department of Housing and Public Works.
- [15]Under s 345A, the Tribunal may make the order if it is satisfied –
- the applicant has established the ground of the application; and
- the behaviour justifies terminating the agreement.
- [16]There are matters the Tribunal must consider in determining whether the tenant’s behaviour justifies termination. These are set out in s 345A(3) and include:
- any serious or adverse effects on neighbouring residents or other persons, including whether neighbouring residents or other persons are likely to be subjected to objectionable behaviour if the agreement is not terminated; and
- any evidence regarding the tenancy history of the tenant; and
- if the tenant is a tenant under a State tenancy agreement -
- (a)the department’s responsibility to other tenants; and
- (b)the needs of persons awaiting housing assistance from the State.
- [17]The Tribunal may, pursuant to s 345A(2), also have regard to:
- (a)whether the behaviour was recurrent and, if it was recurrent, the frequency of the recurrences; and
- (b)for behaviour in the form of harassment, intimidation or verbal abuse—its seriousness; and
- (c)for behaviour in the form of intentional or reckless endangerment—its seriousness; and
- (d)for behaviour in the form of interference with a person's reasonable peace, comfort or privacy—its seriousness.
- (a)
- [18]These factors, both mandatory and optional, are not exhaustive.[6] The Tribunal may therefore have regard to other factors it considers relevant.
- [19]Section 349A(2) provides that the Tribunal must not refuse to terminate the tenancy merely because the tenant is a tenant of the chief executive or a community housing provider.
- [20]The appellant argues that the Adjudicator, in arriving at his conclusion that the objectionable behaviour justified termination, did not take certain relevant factors into account. These factors were as follows:
- Mr Lawler had a mental illness;
- This was a significant contributor to, and explained, the objectionable behaviour;
- A symptom of the mental illness was a lack of insight into his condition;
- The steps he had taken to instigate counselling sessions for his illness; and
- The Gold Coast has very limited resources and a termination order would result in homelessness and lack of assistance for Mr Lawler.
- [21]Further to this, it was argued that the Adjudicator was mistaken in his view that the Department had no obligation or “jurisdiction” to deal with Mr Lawler’s mental illness. This, it was argued, had led to a failure by the Adjudicator to take into account the inaction of the Department in this respect as a relevant factor in determining whether Mr Lawler’s behaviour justified termination.
- [22]It was submitted on behalf of the appellant that these factors, taken together, illustrated Mr Lawler’s vulnerability and that the Tribunal was in error in not taking them into account or in not giving them sufficient weight.
Did the Adjudicator err in failing to take certain matters into account
- [23]It is an error of law to fail to take into account a relevant consideration or to take an irrelevant consideration into account. The issue here is whether the adjudicator was bound to take into account one or more of the factors nominated by the appellant.
- [24]The considerations that a decision-maker is bound to consider in making a decision are determined by construction of the statute conferring the discretion.[7] A statute may expressly state the considerations to be taken into account or ignored. If it does not, they must be determined by implication from the subject matter, scope and purpose of the statute.[8] Apart from considerations the decision-maker must and must not have regard to are matters which a decision-maker may have regard to if, in the decision-maker’s judgment and discretion, it thinks it right to do so.[9]
- [25]It has been held, in the context of judicial review, that in determining the issue as to whether relevant or irrelevant considerations were taken into account by a decision-maker, care must be taken to ensure the review does not trespass into the merits.[10]
- [26]The appellant argued that because the Adjudicator referred expressly to the mandatory and discretionary factors in s 345A(3) and (2) respectively, that he did not appreciate other matters could be taken into account pursuant to s 345A(4). We do not think that the record evidences this. In fact, the Adjudicator did take factors other than those in s 345A(2) and (3) into account. He did not need to reference the sub-section in order to do it.
- [27]We also disagree with the assertion that the Adjudicator did not take the matters listed in para [20] into account.
- [28]Mental illness: In arguing Mr Lawler’s mental illness was not taken into account, the appellant’s legal representative referred to the Adjudicator’s statement, to the effect, that while the applicant had a mental illness, this did not excuse his behaviour. The fact the mental illness did not “excuse” the behaviour was said to indicate the mental illness had not been taken into account. We disagree with that proposition. To the contrary, in our view, the Adjudicator considered the applicant’s mental illness but came to the conclusion that it was not a sufficient reason to displace his view that the objectionable behaviour justified termination.
- [29]Contributor to behaviour: The Adjudicator also acknowledged on multiple occasions that mental illness was the reason for the applicant’s behaviour. He said:
…it’s clear to me that Mr Lawler…does have a major psychiatric illness, which explains the conduct, but it’s not a lawful excuse or defence to an application such as this, to terminate a lease for objectionable behaviour.[11] (emphasis added).
- [30]Insight: Further, the Adjudicator also took into account that a feature of Mr Lawler’s mental illness was his lack of insight into his condition:
Mr Lawler’s response is…to point the finger of blame to all but himself…and that’s understandable because it is entirely consistent with his psychiatric condition…but ..it nevertheless does not excuse the behaviour.[12]
- [31]And, further:
…Mr Lawler does not have an appreciation…of the consequences of his behaviour for others and his need for intensive medical assistance, in his own interests.
…And I understand why he doesn’t, it’s the condition. The condition explains the conduct. But in having regard to those compulsory criteria under subsection (3) of 345A, unpleasant, though, my task is in this respect, I must act on the evidence overall as it has presented and I must, in the exercise of my discretion, give the matters which the applicant complains of and the evidence, in that regard, due weight.[13]
- [32]Counselling: The Adjudicator, contrary to the assertion by the appellant, also took into account the counselling session attended by Mr Lawler. He took it into account but said that, “it’s really too little too late at one midnight to midnight”.[14] He elaborates on his reason for this by saying that, given the history and pattern of behaviour, he had no confidence Mr Lawler would follow through with the required medical assistance if he was to obtain a referral from the psychologist.[15]
- [33]Consequences of termination: Finally, it is also clear the Adjudicator took into account the consequence for the applicant of a termination order. The Adjudicator simply did not accept that it was inevitable the applicant would be homeless. He was instead optimistic that, with the assistance of the Department, alternative accommodation arrangements could be made.[16] This is not an error of law. It is a finding of fact that the Adjudicator was entitled to come to.
- [34]Department’s conduct: The more nuanced argument, developed during the hearing before the Appeal Tribunal, was that the Adjudicator failed to take into account the Department’s failure to take an integrated and holistic response to Mr Lawler’s predicament in view of his mental illness. This was, it was argued, due to the mistaken view of the Adjudicator that the Department had no duty in this regard.
- [35]The issue was explored by the Adjudicator. He concluded however that the Department had done what it could and that Mr Lawler had refused to engage with the Department.[17] He says:
To my mind... the Department has, I find, done all that it could reasonably be expected of it to assist Mr Lawler. It’s not for the applicant in this case to intervene and direct a tenant to seek medical assistance where, as in this case, it is entirely appropriate and warranted. Those are private matters. The Department would, to my view, be acting outside of its jurisdiction if, for example, it had said to Mr Lawler, “Look, here, you need to go and see a psychiatrist and get treatment”.
- [36]The Adjudicator then referred to the steps taken by the Department in attempting to resolve the problems surrounding the tenancy by attending the premises on 16 April 2015 and again on 29 September 2015. On both occasions Mr Lawler did not want to engage with the Department.
- [37]The appellant argued that this response was not adequate and, when pressed to explain in the appeal hearing what could or should have been done, said that the Department should have made it clear that the continuation of Mr Lawler’s tenancy was conditional on him seeking medical assistance.
- [38]We do not agree. The Department acted reasonably and the Adjudicator was not in error in so concluding. Further, in our view, the Adjudicator took into account the steps the Department had taken in an attempt to resolve Mr Lawler’s behavioural issues as they related to his tenancy.
- [39]In conclusion, we do not find that any of the matters identified by the appellant were not taken into account. We are also of the view that it was matter of discretion as to whether, and if so, what weight was to be attributed to each of those factors. The adjudicator, in our view, did not err in the exercise of this discretion in circumstances where the conduct of the appellant was serious, had been going on for at least 12 months, had led to over 70 complaints and multiple calls to police and was unlikely to be abated.
Ground 2 – Denial of natural justice
- [40]The appellant submits that s 345A(1)(b) and s 345A(4) of the Tenancy Act, when read with s 28 of the QCAT Act, place an onus on the Tribunal to ensure all relevant material has been disclosed and considered. The appellant submits that the Tribunal failed to do this and therefore erred in finding the termination was justified.
- [41]The natural justice ground comprises two issues:
- a failure to consider certain relevant material; and
- reliance on hearsay evidence.
- [42]In relation to the failure to consider relevant material it was argued the Tribunal failed to consider:
- Mr Lawler’s claims regarding his protracted dispute with his neighbour and the likely impact of the neighbour’s behaviour considering his mental illness (neighbour dispute);
- The photograph of the neighbour’s door which contained provocative notes directed at Mr Lawler (photograph of neighbour’s door).
- [43]The hearsay evidence issue involves complaints allegedly made by other neighbours. In relation to the evidence led of these complaints it was argued:
- Evidence of the complaints were contained in an affidavit by Ms Nichols of the Department of Housing and was therefore hearsay evidence;
- The appellant was entitled to disclosure of the names of the complainants; and
- The appellant was entitled to test their evidence.
Natural justice - failure to ensure all relevant material has been considered
- [44]Section 28 of the QCAT Act provides
28 Conducting proceedings generally
- The procedure for a proceeding is at the discretion of the tribunal, subject to this Act, an enabling Act and the rules.
- In all proceedings, the tribunal must act fairly and according to the substantial merits of the case.
- In conducting a proceeding, the tribunal—
- must observe the rules of natural justice; and
- is not bound by the rules of evidence, or any practices or procedures applying to courts of record, other than to the extent the tribunal adopts the rules, practices or procedures; and
- may inform itself in any way it considers appropriate; and
- must act with as little formality and technicality and with as much speed as the requirements of this Act, an enabling Act or the rules and a proper consideration of the matters before the tribunal permit; and
- must 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.
- Without limiting subsection (3)(b), the tribunal may admit into evidence the contents of any document despite the noncompliance with any time limit or other requirement under this Act, an enabling Act or the rules relating to the document or the service of it.
- [45]It is apparent from s 28 that the Tribunal has a broad discretion as to how to conduct proceedings. In exercising that discretion a balance must be struck between retaining as much flexibility regarding the admission of evidence as practicable while at the same time seeking to ensure that rules of natural justice are observed.
- [46]The Tribunal is to ensure as “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.[18] The Tribunal is also required to “take all reasonable steps” to ensure each party to a proceeding understands the practices and procedures of the Tribunal and the nature, and legal implications, of any assertions made in the proceeding.[19]
- [47]In addition, the Tribunal must also take all reasonable steps to understand the actions, expressed views and assertions of a party to the proceeding, having regard to any disability the party may have.[20] Further, the Tribunal must ensure proceedings are conducted in a way that recognises and is responsive to the needs of a party with impaired capacity.[21]
- [48]These matters go to questions of procedural fairness, but, as Mason J observed in Kioa v West,[22] the requirements of procedural fairness must be adjusted to the statutory framework governing the Tribunal in question. It follows that the requirements of natural justice are flexible and vary depending on the circumstances.[23] At its core is a requirement to act fairly in all of the circumstances.[24]
- [49]The application before the Tribunal was a minor civil dispute.[25] The Tribunal is required by s 4 of the QCAT Act to ensure proceedings are conducted in an informal way that minimises costs and “is as quick as is consistent with achieving justice”. The procedural framework and objectives set out in s 28 are all in aid of the objectives of the QCAT Act, which as they relate to minor civil disputes, may be stated to be the delivery of justice speedily, cheaply and informally.[26]
- [50]It was argued on behalf of the appellant that insufficient weight was given to the evidence of Mr Lawler, his mother (Mrs Campbell) and Ms Whittle who all said, in effect, that there was no problem until the issues started with the neighbour downstairs. In particular, it was argued that there was no consideration of the fact that the Department had removed Mr Lawler’s carpet which had made noise issues worse, that the neighbour downstairs was a “cranky person” and that the stress of confrontations with that neighbour was a trigger for Mr Lawler’s mental illness. There was also a suggestion that the Tribunal did not do enough to investigate the dispute with the neighbour.
- [51]It is, in our view, evident that the Adjudicator did take the dispute with the neighbour into account. He refers to the “substantial conflict” between Mr Lawler and his neighbour below a number of times.[27] The Adjudicator considered all the evidence but found that it was a situation where Mr Lawler did not get along with other people in the block.[28] In our view, this shows that he is satisfied the issues were not confined to a dispute with the neighbour below.
- [52]In relation to whether the dispute was the root cause of the objectionable behaviour overall, we find that it is implicit in the Adjudicator’s reasoning that, even assuming this to be the case, Mr Lawler had not taken any steps to resolve the issue. In particular, he refused offers to engage in dispute resolution and that his “harassment” of the neighbour below, principally by playing loud music over extended periods, was not likely to stop.
- [53]The Adjudicator states he has taken the evidence of Mr Lawler and Mrs Campbell into account but that where there is a conflict with the evidence as presented in the applicant’s affidavits, that he prefers the evidence of the applicant.[29] The Adjudicator refers to the affidavit of Mrs Campbell and states:
It does not seem to me that Mrs Campbell’s affidavit sworn the 7th of June 2016 advances Mr Lawler’s defence in any meaningful way. I empathise with and accept Mrs Campbell’s statements as mother of Peter Lawler, and, no doubt, the anguish that the events will have caused her, particularly given that she is currently afflicted also with Parkinson’s disease. Mrs Campbell refers in her affidavit to the undesirability of homelessness, given Mr Lawler’s medical issues, and I concur with that undesirability, however, Mrs Campbell really does not address, and nor is she in a position to, the overwhelming weight of the evidence in support of the applicant’s case for termination on grounds of objectionable behaviour of her son.[30]
- [54]In our view, it is clear that Mrs Campbell’s evidence, which included reference to the dispute with the neighbour below, was taken into account but that, in arriving at his conclusion, that factor did not outweigh the “overwhelming” evidence of objectionable behaviour. The Adjudicator acknowledges the behaviour is “to a degree – aggravated by conflict with others, including his downstairs neighbour.”[31] However he concludes:
But the behaviour, in turn, has aggravated those in tenancies around and near to him where, in consequence, people are apprehensive; where their quiet and peaceful enjoyment of their own tenancies is violated.[32]
- [55]The Adjudicator considers but does not accept the proposition that the neighbour’s conduct was the cause of the behaviour. He finds:
I just don’t see that I can look at this in terms of its effects solely as something triggered by a dispute with the neighbour below. It’s much more complex than that.[33]
- [56]In short, it seems the conflict with the neighbour was taken into account, but that the Adjudicator was of the view it was not sufficient to displace the justification for termination of the tenancy given the seriousness of the conduct, the likelihood it would continue and the significant impact of the conduct on others living nearby. It is also noted that the requirement to ensure all relevant material is disclosed in s 28(1)(3)(e) of the QCAT Act does not equate to an obligation to investigate matters not put before the Tribunal.
- [57]A reference was made by Ms Whittle in the proceeding before the Adjudicator to a photograph she had seen but not brought in. The photograph showed messages and letters on the door about Mr Lawler which, it was argued, “painted the picture that there actually is some kind of a problem, but we don’t see any evidence that the Department has explored that beyond referring Peter to dispute resolution”.[34]
- [58]While the Adjudicator was prepared to admit into evidence the evidence of Mr Lawler’s sister, Mary Limbers, received by email on the morning of the hearing, he was not prepared to admit the evidence as to the photograph on the basis it was hearsay, late and that there had to be a limit to the introduction of further evidence.[35]
- [59]In any event, the Adjudicator said that he had “little doubt that there is antipathy between neighbours and Mr Lawler”.[36]
- [60]In light of the acknowledgment by the Adjudicator that there was a serious and ongoing dispute with the neighbour below, the admission of the photograph would not, in our view, have added anything and there has been no injustice to the respondent as a result.
- [61]We find that the Adjudicator complied with the obligation in s 28(3)(e) of the QCAT Act in ensuring the matter was decided with all relevant material, as far as was practicable in the circumstances. This obligation must be balanced against the obligation to ensure the Tribunal observes the rules of natural justice which may not be the case if fresh material, previously undisclosed to the other party, is adduced at the hearing. The critical fresh evidence was the affidavit of Mr Lawler’s sister and this was admitted late by the Tribunal after the commencement of the hearing.
Natural justice - reliance on hearsay evidence
- [62]It was argued that the Adjudicator denied the appellant natural justice by relying on one affidavit within which were contained extracts from five other affidavits of neighbours complaining of Mr Lawler’s behaviour. The extracts were hearsay evidence and was unable to be tested by the appellant. It was argued that no objection had been taken to the evidence at the hearing because Mr Lawler was not represented by a lawyer.
- [63]As we have noted, s 28 of the QCAT Act requires the Tribunal to act fairly and according to the substantial merits of the case. The Tribunal is not bound by the rules of evidence “or any practices or procedures applying to courts of record, other than to the extent the Tribunal adopts the rules, practices and procedures”.[37] The Tribunal may inform itself in any way it considers appropriate.[38] The Tribunal is also required to act with as little formality and technicality and with as much speed as a proper consideration of the matters before it permit.[39]
- [64]In Veal v Minister for Immigration and Multicultural and Indigenous Affairs[40] the High Court held that a decision-maker is required to disclose the substance of allegations against the individual[41] but that the rules of procedural fairness do not, generally, require the decision-maker to provide the individual with the identity of the complainant.[42]
- [65]The Adjudicator referred to the anonymity of the complainants and said he was satisfied there was good reason, given the history of objectionable behaviour and the severity of Mr Lawler’s psychiatric condition, for the Department not to divulge the identity of the deponents. He continued:
I’m satisfied that Mr Lawler was given every opportunity this afternoon at my direction to have an opportunity to respond to the allegations against him and the affidavits and to take account of what Mrs Limbers said, amongst others, in her affidavit.[43]
- [66]We find that the rules of procedural fairness as they applied in this case, did not require the Adjudicator to provide the appellant with the identity of the complainants. The Adjudicator was required to provide the appellant an opportunity to respond to the substance of the allegations against him, which he did.
- [67]In conclusion the reliance on the material in the affidavits was acceptable given the circumstances and, in particular, given the perceived threat to the safety of the deponents were their identity to be disclosed. We also note that no objection was taken to the evidence during the Hearing. In our view, it is no answer that Mr Lawler was not legally represented. He had the opportunity to be legally represented but elected to be represented by Ms Whittle, who was not a lawyer. The reliance on hearsay evidence does not, in these circumstances, amount to a breach of natural justice by the Adjudicator.
Conclusion
- [68]There was no error by the Tribunal in finding the objectionable behaviour justified terminating the tenancy nor was there a denial of natural justice.
- [69]The application for leave to appeal should be refused. The interim order made on 16 August 2016 should be lifted. Given the original warrant has expired, it is necessary to re-issue the warrant to take effect 14 days from the date of this decision.
Footnotes
[1] Ericson v Queensland Building and Construction Commission [2014] QCA 297.
[2] QCAT Act, s 142(3)(a)(i).
[3] Ibid, s 143(3).
[4] [2005] QCA 294, [3], per Keane J (with whose reasons the other members of the court agreed) in relation to whether to grant leave under s 118(3) of the District Court of Queensland Act 1967 (Qld).
[5]Tenancy Act, s 297A(2).
[6] Tenancy Act, s 345A(4).
[7] Hon Justice Brian Preston, Judicial Review of illegality and irrationality of administrative decisions in Australia, (2006) 28 Aust Bar Rev 17.
[8] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40; Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 228.
[9] Sean Investments Pty Ltd v Mackellar (1981) 38 ALR 363 at 375.
[10] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40.
[11] Ibid, 33, line 15. See also at 36, line 25.
[12] Ibid, 37, line 40.
[13] Ibid, 39 line 30-35.
[14] Ibid, 39 at line 20.
[15] Ibid 39, lines 20-25.
[16] Ibid 44, line 25.
[17] Ibid, 42, line 35-40.
[18] QCAT Act, s 28(3)(e).
[19] QCAT Act, s 29.
[20] QCAT Act, s 29(1)(b).
[21] QCAT Act, s 29(1)(c)(ii).
[22] (1985) 159 CLR 550.
[23] Ibid.
[24] Ibid.
[25] QCAT Act, s 12.
[26] QCAT Act, s 3; Underwood v Queensland Department of Communities (State of Queensland) [2012] QCA 158, [42] per Muir JA (Dalton J agreeing).
[27] Transcript, 41, line 10.
[28] Transcript, 41 at [10].
[29] Transcript, 41 at line 30.
[30] Ibid, 43, line 25-35.
[31] Ibid, 36, line 30.
[32] Ibid.
[33] Ibid, 34, line 10.
[34] Ibid 34, line 15.
[35] Ibid, 34, line 30.
[36] Ibid, 34, line 40.
[37] QCAT Act, s 28(3)(b).
[38] QCAT Act, s 28(3)(c).
[39] QCAT Act, s 28(3)(d).
[40] (2005) 225 CLR 88.
[41] Ibid at 99.
[42] Ibid at 98-100.
[43] Ibid, 43, line 10-15.