Simonova v Department of Housing and Public Works
[2018] QCATA 33
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Appeal Determined (QCA)
- Simonova v Department of Housing and Public Works[2018] QCATA 33
- Add to List
Simonova v Department of Housing and Public Works[2018] QCATA 33
Simonova v Department of Housing and Public Works[2018] QCATA 33
CITATION: | Simonova v Department of Housing and Public Works [2018] QCATA 33 |
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: | 8 March 2018 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | THE APPEAL TRIBUNAL ORDERS THAT:
|
CATCHWORDS: | LANDLORD AND TENANT – TERMINATION OF THE TENANCY – GENERALLY – where the applicant was a long-term public housing tenant – where her tenancy was terminated for objectionable behaviour – when the behaviour complained of is involuntary and symptomatic of mental illness – whether the tribunal misapplied or misinterpreted the relevant statute – whether the tribunal made vitiating mistakes of fact EVIDENCE – GENERAL PRINCIPLES – where the applicant sought to adduce fresh evidence on appeal – whether rules applicable in common law courts restricting the introduction of fresh evidence on appeal apply in the tribunal – where the case was argued by both parties on the assumption those rules do apply – where leave is refused because the evidence was reasonably available at first instance Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 28(3), 95(1), 98(1), 147 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 290A(1), 293, 296, 296A, 297, 297A(1), 299, 335(1), 336, 345A, 349A(2) Attorney-General (Vic); Ex Rel Dale v Commonwealth (1945) 71 CLR 237 Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621 Clarey v The Principal and Council of the Women’s College (1953) 90 CLR 170 Clarke v Japan Machines (Aust) Pty Ltd [1984] 1 Qd R 404 Coshott v Crouch [2017] FCAFC 135 Coulton v Holcombe (1986) 162 CLR 1 Dalco v State of Queensland through the Department of Housing and Public Works [2014] QCATA 133 Germanos v Cosgrove & Anor [2013] QCATA 203 House v The King (1936) 55 CLR 499 Lamers v Attewell & Anor [2013] QCATA 136 Lawler v Department of Housing and Public Works, State of Queensland [2017] QCATA 21 Water Board v Moustakas (1988) 180 CLR 491 WJ v Chief Executive Officer, Public Safety Business Agency [2015] QCATA 190 |
APPEARANCES and REPRESENTATION (if any): | |
APPLICANTS/APPELLANTS | KM Hillard of counsel |
RESPONDENT | MH Hindman of Queen’s counsel |
REASONS FOR DECISION
- [1]This is an application for leave to appeal a tribunal decision terminating a tenancy under Residential Tenancies and Rooming Accommodation Act 2008 (Qld).[1]
The context
- [2]The applicant is a long term public housing tenant in her early seventies. She has a dual diagnosis of chronic paranoid schizophrenia and post-traumatic stress disorder complicated by painful arthritis and, since, at least 2014, a vocal chord condition that causes her to talk in “a loud penetrating voice” like a “foghorn”.
- [3]In 2016 the state housing department applied to the tribunal for a lessor’s termination order on objectionable behaviour grounds after ongoing complaints from nearby residents.
The tenancy statute
- [4]
- [5]
- [6]However, the tribunal may order termination for serious breach if the “ground of the application” is made out. This does not appear to authorise an investigation of the underlying breach but merely whether there was a failure to leave after proper service of the Form 12.[9]
- [7]The tribunal has jurisdiction to consider termination for objectionable behaviour only if it is satisfied (that is, believes with reasonable certainty) the applicant is entitled to bring it.[10] There is and was no suggestion that the department was not.
- [8]The term “objectionable behaviour” varies according to the type of premises in question. For private housing it is limited in s 297 to harassment, intimidation, verbal abuse and “serious nuisance” whereas s 297A(1) extends the concept to cover conduct of or allowed by a public housing tenant that –
- (c)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.[11]
- (c)
- [9]Damage or injury to public or community rental premises, by contrast, has to be intentional or reckless to ground a termination application.
- [10]Likewise a serious breach, for any category of housing, is defined in s 290A(1) as including:
- (b)intentionally or recklessly –
- endangering another person;or
- interfering significantly with the reasonable peace, comfort or privacy of another tenant or the appropriate use of their premises.[12]
- (b)
- [11]Intentional conduct is deliberate and the result willed. Recklessness is a state of mind implying foresight of a result even if it was neither desired nor specifically intended. An intended act is freely chosen in full knowledge of the natural or desired consequences. A reckless act is one that due to taking an unjustified risk causes an unforeseen (but not unforeseeable) outcome.
- [12]Thus, a degree of mental fault greater than negligence is an element of both endangerment and interference grounds of termination.
- [13]The tribunal’s discretion to make a termination order is conditional on substantiation of the ground of the application and justification of termination as the least onerous effective remedy having regard to the factors mentioned in the tenancy statute. The tribunal may consider matters including the frequency and seriousness of the behaviour in the form of “interference with … reasonable peace, comfort or privacy”[13] but must take into account:
- any serious and adverse effects on neighbouring residents or others including the likelihood of repetition of the behaviour if the agreement is not terminated;
- any evidence regarding the tenant’s public housing history;
- the department’s responsibility to other tenants; and
- the needs of others waiting for housing assistance.[14]
- [14]The mere fact that the application relates to a public housing tenancy is not a valid basis for refusing to terminate it.[15]
- [15]The current termination application was contested on the basis that:
- the behaviour, even if proven, was not “objectionable” because it was an involuntary symptom of mental illness and therefore beyond the scope of the tribunal’s statutory termination discretion;
- a more preferable order would require the department to take noise mitigation steps or relocate the applicant to a standalone placement where she will not disturb neighbours; and
- making of the order would inevitably and unjustly render the applicant homeless.
- [16]Despite the “intense criticism” of the department’s alleged failure to try hard enough to sustain the tenancy made by the applicant’s daughter and attorney, Ms Krzeva, the tribunal accepted the affidavit evidence of six neighbouring homeowners as “ample evidence of serious interference with the peace and comfort of the persons occupying the premises nearby”[16] and concluded that “termination … (was) the only way to cease the neighbouring residents being subjected to (the) objectionable behaviour”[17] because all available practicable measures to ameliorate the negative impact of the behaviour and abate disturbing noise, especially at night time, had been exhausted.[18]
- [17]Ms Krzeva’s attempt to persuade the tribunal that the residents were “prejudiced against her mother, intolerant of difference and were not only exaggerating in their accounts of her behaviour, but inventing details”[19] was dismissed as inconsistent with its own credit assessment[20] and because there was no challenge to any of their evidence[21] in cross-examination or by contrary testimony from the applicant or any other witness.
- [18]The tribunal also rejected suggestions that termination would spell inevitable homelessness for the applicant and that the department’s case was discriminatory of a person with a disability.[22]
The leave requirement
- [19]Appeals from tenancy decisions are generally reserved for matters warranting the dedication of the tribunal’s finite resources to hear and decide them. Hence the leave requirement is not usually met unless there is good reason for thinking that there has been some error in stating or applying legal principles, tests or criteria or the fact finding process has miscarried in some way vitiating the decision which if not corrected will cause the applicant substantial injustice. However, appeals are sometimes granted where proposed grounds raise wider issues warranting appellate level consideration.
The leave grounds
- [20]The filed Form 39 states 4 grounds.
- [21]Two of the grounds (1 and 3 – misnumbered as 2) raise questions of law and one concerns issues of fact (ground 2).
- [22]Ground 2 was initially confined to a complaint that the substantiation finding was against the weight of the evidence. It was not addressed at all in the first set of written submissions. Directions dated 12 October 2017 were based on the common assumption that only grounds 1 and 3 were live. However, the applicant characterises the omission to file submissions on ground 2 as an oversight and maintains the ground but in a much expanded form. If leave to argue ground 2 is granted the appeal will have to be conducted as a full rehearing on the merits with any additional evidence allowed.
- [23]Ground 4 (misnumbered as 3) reserves the right to supplement the grounds after the publication of reasons. That ground is no longer pursued.
- [24]At the leave hearing counsel for the applicant, Ms Hillard, sought to amend the filed grounds to:
- in ground 1 add specific errors of law in finding that the applicant’s conduct met the description of “objectionable behaviour” in terms of s 297A including –
- (i)statutory misinterpretation;
- (ii)not finding voluntariness a necessary element of liability;
- (iii)considering adverse conduct predating the enactment; and
- (iv)hearing the matter when the State was in breach of its own anti-discrimination legislation;
- (i)
- In ground 2 add as collateral errors of fact –
- (i)failure to properly consider the Karingal evidence;
- (ii)not assessing the suitability or availability of alternative accommodation;
- (iii)inadequately explaining why the evidence of some witnesses was preferred over others; and
- (iv)not investigating the cogency of the matters of fact supporting witness opinions;
- (i)
- in ground 3 add as mixed reasoning errors failure to adequately consider –
- (v)the pre-existing and voluntary nature of the applicant’s behaviour in deciding whether it was capable of being relevantly objectionable; and
- (vi)the applicant’s true state of homelessness.
- (v)
- [25]Leave is justified here on all the amended grounds according to Ms Hillard, because:
- a ruling on the meaning of s 297A and 345A and their interaction is of general public importance;
- potentially, the tenancy statute has unintended adverse implications for mentally ill tenants and there is no objective standard for assisting the s 345A assessment; and
- the prospects of success on appeal are reasonable.
- [26]Although cast in a variety of slightly different ways, the applicant’s legal argument in grounds 1 and 3 seems to boil down to the proposition that the department can never evict a tenant with a known mental illness which manifests itself in uncontrollable and unintended noise of such a level, duration and frequency that it interferes with the reasonable enjoyment of neighbouring land, and accordingly, the tribunal could not reasonably have considered termination to be a “fair and equitable” resolution of the dispute within s 13(1) QCAT Act.
- [27]The department does not oppose ground 1 and 3 in their original form but asserts that ground 2 has been abandoned, at least by implication, and objects to it being resurrected and amended by stealth. The proposed sub-grounds 1(i), (iii), (iv) and all of the additions to grounds 2 and 3 are also opposed to on the basis that they impermissibly exceed the scope of the stated appeal grounds, raise new issues (including some of fact) without leave and have not been properly responded to.
- [28]Ms Hillard, also applied to adduce additional affidavit evidence[23] in support of proposed ground 2(i) and (ii) about:
- problems for the applicant in reapplying for new housing and other support;[24]
- her positive interaction with a psychologist, gardener and shop owners;
- why the applicant cannot live with her daughter and did not meet the requirements of an involuntary treatment order or to live in an aged care home.
- [29]Facts appeals governed by s 147 QCAT Act, as one based on ground 2 would be, must be disposed of by way of rehearing, with or without, additional evidence supporting or strengthening the appellant’s case “as decided by the tribunal”.
- [30]Statements in Germanos v Cosgrove & Anor[25] to the effect that special circumstances were required uncritically adopted or adapted the principles applied by common law courts.[26] The procedure for a QCAT proceeding (including an appeal and application for leave[27]) is not confined by adversarial practices and is at the unfettered discretion of the tribunal subject to the statutory objects (especially ss 3 and 4), the substantial merits of the case, fairness considerations and the overall interests of justice.
- [31]In conducting proceedings generally the appeal tribunal must ensure, so far as is practicable, that all relevant material is disclosed to enable it to decide a dispute with all the relevant facts[28] and must allow a party a reasonable opportunity to present evidence and make submissions.[29] The hearing power includes authority to call or examine witnesses itself about relevant matters.[30]
- [32]The cumulative effect of these provisions strongly suggests that the statutory discretion to admit additional evidence is to be exercised case by case solely or substantially on merit-based considerations and not by blind adherence to the stricter approach historically taken by regular courts for their own policy reasons.[31]
- [33]The persuasive value of Germanos, therefore, is dubious but as the application was argued by parties represented by experienced barristers on the basis of the standard tests set out in Clarke v Japan Machines (Aust) Pty Ltd[32] it will be decided as if they apply.
- [34]The department met the defence the applicant ran at the hearing. The tribunal analysed the evidence on the basis of that case not the substantially different one the applicant now wants to run on appeal.
- [35]Senior Counsel for the department, Ms Hindman QC, objects to the receipt of any new material in support of ground 2 because:
…not only was all of that evidence available to Simonova at the time of the original hearing so that there is no proper justification for further evidence being permitted, the only piece of that evidence that might (marginally) be relevant to ground 2 as contained in the application is that contained in [75] (and perhaps [76]) as to Mr Porter considering the noise from Simonova (assumedly during the day on two occasions when he was next door), was no worse than a television. It could not be reasonably concluded that such evidence, which was available before the conclusion of the hearing, could possibly overcome the weight of evidence about the conduct of Simonova having taken place. The evidence of the (hearing) neighbours, particularly as to Simonova’s conduct during the night, was consistent and overwhelming. Member Tonkin was provided with many audio-video recordings which were the best objective evidence of the vocalisations.
- [36]Appeal proceedings are not the “main arena” for settling civil disputes and trials are not a mere “preliminary skirmish”.
- [37]While the proposed evidence is no doubt credible it is controversial and was probably reasonably available to the applicant for use at first instance. It does not qualify, therefore, for admission according to the line of cases referred to by counsel. In any case, even if leave to amend to add ground 2 was granted, conducting a full rehearing of new and much broader issues hinging largely on fresh contestable facts would prejudice the department (especially when one important deponent is unavailable), is incompatible with the stated objects of the QCAT Act and not a justified use of finite appeal resources.
- [38]For these reasons the application is refused. The overall implications of this for the leave application in relation to this proposed ground and amended ground 3 will emerge shortly.
Ground 1
- [39]Leave to appeal is granted for sub grounds (i) and (ii) and to the extent they overlap with proposed ground 3(i) because they involve a question of statutory interpretation not previously considered by the appeal tribunal and have potential consequences beyond the immediate interests of the parties.
- [40]Ground 1(iii) raises procedural questions of relevance and weight. In any case, the termination order is adequately justified on the basis of facts that postdate the insertion of s 297A and s 345A in 2013.
- [41]As to ground 1(iv) the applicant contends that attribute conditions caused the “objectionable behaviour” underpinning the termination order and that the tribunal should not have embarked on hearing the chief executive’s eviction application in view of the discriminatory effect of ss 297A and 345A.
- [42]The objection is that the tribunal proceeded to hear the termination application even though the chief executive was, in effect, acting in breach of the State’s own anti-discrimination legislation. As to this two matters should be noted. First, no preliminary application was made for the hearing to be stayed or struck out for that reason. Second, an alleged (but unproven) breach of the anti-discrimination legislation is not an absolute jurisdictional bar and the tribunal was not asked to investigate the constitutional validity of s 297A or 345A.
- [43]Discrimination complaints are dealt with by the tribunal in its original jurisdiction on referral. The question whether s 297A or s 345A are discriminatory in effect depends on a finding that they are overridden by the Anti-Discrimination Act 1991 (Qld) because they indiscriminately treat the applicant as if she was able to meet public tenancy conditions that, as the chief executive well knows, are much more onerous (if not practically impossible) for her than most others.
- [44]The termination grounds may be harsher in their operation for mentally ill tenants than others without the same disability but that doesn’t necessarily make it the statutory provision beyond power or discriminatory in effect.
- [45]Unless and until a competent body decides otherwise, the appeal court acts on the presumption that parliament does not legislate beyond its constitutional power and, accordingly, the tenancy act is intra vires.[33]
- [46]The appeal tribunal refuses to allow the applicant to enlarge the scope of the appeal to include direct or indirect discrimination claims.
Sub-grounds (i) and (ii)
- [47]The key question of law raised is whether or not for objectionable behaviour within s 297A(1)(c) the expression intentionally or recklessly is intended to quantify interference as well as endangerment as ss 290A(1) and 296A(1) do for “serious breach” and “damage or injury” respectively.
- [48]The tribunal ruled that on a plain reading interference with the reasonable peace of a neighbour was capable of being objectionable behaviour within s 297A(1)(c) even if it was neither intentional nor reckless[34] and that the applicant’s inability to regulate her behaviour because of her psychiatric illness[35] and the “availability or otherwise of (alternative) suitable accommodation”[36] were irrelevant or non-decisive characterisation considerations. In other words, although the applicant was morally blameless[37] the unreasonable interference is a purely objective question[38] and any relief form termination was purely discretionary under s 345A.
- [49]The applicant submits that s 297A impliedly distributes the fault element over both the endangerment and interference categories of “objectionable behaviour” and can be contrasted in this respect with s 345A which explicitly differentiates in (2)(c) and (d) between behaviour in the form of “intentional or reckless endangerment” on the one hand, and in the form of “interference” on the other at the justification stage of the termination process.
- [50]On the basis of this construction the tenancy should not have been terminated because the tribunal accepted medical evidence to the effect that the applicant does not have the capacity to control her actions and was, therefore, acting involuntarily and without intent (or recklessness) so as to take the noises she made outside the notion of “objectionable behaviour” for s 345A orders.
- [51]Ms Hillard draws support for her alternative construction from the fact that s 290A(1) requires a reasonable belief of either intentional or reckless endangerment or interference[39] as a precondition to issuing a serious breach notice.
- [52]It would be inconsistent for the law, she says, not to demand at least the same degree of fault for objectionable behaviour in a termination application brought under s 335(1)(e) without notice.
- [53]Likewise, the applicant claims that if common law private nuisance requires an element of personal responsibility then lower level “interferences” logically would too, especially in the context of a regime designed to evict bad rather than blameless tenants.
- [54]Perhaps the most compelling reason for accepting her interpretation, the applicant says, is that dispensing with any subjective mental element would lead to the absurd and unjust result that the noise of a baby with uncontrollable colic would be “objectionable behaviour” for termination purposes.
- [55]Also the applicant contends that not only did the tribunal misconstrue the statutory provisions but also wrongly relied on Lawler v Department of Housing and Public Works, State of Queensland[40] for the proposition that behaving badly due to mental illness is no defence to a objectionable interference claim.
- [56]Lawler does not assist in ascertaining the meaning and effect of s 297A. The alleged error there was wrongly finding that the objectionable behaviour justified termination based on a failure to consider mental illness at the justification stage as an explanation under s 345A(4).[41] There was no substantiation or characterisation issue.
- [57]The appeal failed at the leave stage, that is, before it even began, because although mental illness was accepted as a condition that explained (but did not excuse) the offending conduct it was not of itself a sufficient reason not to terminate.
- [58]Likewise for another case the tribunal followed, The State of Queensland through the Department of Housing and Public Works v Frank Kimmel and Anor,[42] an adjudication at first instance. Also, unlike the situation here, there was no evidence in Kimmel that the behaviour at issue was physically uncontrollable.
- [59]The noise consisted of frequent excessively loud arguments, yelling and screaming between the tenants one of whom had a mental problem but refused to engage in any remediation.
- [60]Ms Hindman QC, supports the correctness of the tribunal’s construction of s 297A(1)(c) and argues that any apparent ambiguity is resolved when regard is had to the terms of s 345A(2)(c) and (d) which explicitly discriminate between “intentional or reckless endangerment” on the one hand and “interference” on the other. This would be odd if s 297A(1)(c) means what the applicant says it does.
- [61]The requirement in s 296A(1) for both damage or injury caused “intentionally or recklessly” to qualify as a ground of termination for a lessor does not import the same conditions into the concept of objectionable behaviour in s 297A(1)(c), she says, because a mental element in that former situation “can hardly be surprising”.
- [62]Also, Ms Hindman QC denies that s 290A provides any indirect support for the applicant’s interpretation of s 297A(1)(c) because it appears in subdivision 2 which is concerned with notices to leave premises, while s 297A, by contrast, appears in subdivision 3 which is concerned with the entirely different topic of termination applications.
- [63]She goes on at [15] to say:
… it is not surprising that although similar issues might arise under each of those subdivisions, that the tests to be satisfied under each … is different. There would be no or little need for subdivision 3, if subdivision 2 covered the field. And it makes sense that the legislation requires an order from a tribunal where the conduct in question is (perhaps) less serious (like unintentional interference as distinct from intentional interference). A comparison between ss 290A (in subdivision 2) and 299 (in subdivision 3) make good that point. Section 290A allows a notice to leave to be given for serious breach, whereas s 299 allows for an application to the tribunal for repeated (not necessarily serious) breaches.
- [64]Finally, Ms Hindman QC rejects the applicant’s colicky baby example as absurd because the qualification of peace, comfort or privacy by the word “reasonable” would not encompass protection from baby sounds and the submission completely ignores the discretion in s 345A.
- [65]The tribunal’s interpretation of s 297A(1)(c) is reasonably open and entirely in line with the structure of the section, its text and context as well as the stated policy purposes.
- [66]It makes perfect sense for the chief executive’s right to apply for a termination order for property damage or personal injury in s 296A(1)(a) and (b) and for physical endangerment in s 297A(1)(c) to be limited to intentional or reckless causes while those based on (a) failure to leave for any reason including serious breach under s 290A after due notice; and (b) harassment, intimidation, verbal abuse, serious nuisance under s 297A(1)(a)-(b) or interference with the reasonable peace, comfort or privacy under s 297A(1)(c), are not.
- [67]As already noted the tribunal’s power to make a termination order because of damage or injury under s 296A and objectionable behaviour under s 297A depends on the ground of the application being established (i.e. the specified behaviour) and termination being justified[43] where as the only proof required for termination for serious breach under s 290A is that 7 days notice was given.[44]
- [68]It is true that as a matter of principle humans are not held morally accountable for unwilled acts or accidental events but, subject to the constitution and traditional protections from unwarranted state intrusion in our lives, a statute may validly fix absolute or strict liability on a person for purely involuntary actions they are powerless to stop or unintended consequences of events outside their control or a state of affairs which is not of their own doing. This is what s 297A does. It provides for tribunal termination of a state tenancy agreement for purely physical acts and defined consequences without requiring any subjective mental or personal fault element; that is, for objective breaches of the tenancy by either the occupant or any for whom the tenant is deemed responsible to protect the vulnerable property and enjoyment interests of neighbouring residents from outside interference. Social control laws are self-evidently made for the peace, order and good government of Queensland even if they are a blunt instrument with unfortunate differential effects.
- [69]The imposition of strict (if not absolute) liability for public tenants is not contrary to moral law-making nor is it inconsistent with the protection prescribed by the principle of legality against statutory erosion of basic rights and freedoms. It understandably shifts the responsibility for any category of objectionable behaviour in public housing onto the tenant.
- [70]In any case, as Ms Hindman QC points out the shared functional purpose of the justification requirement and the broad criteria mentioned in s 345A(2), (3) and (4) is to safeguard against any hardship that might be caused if a termination order was made arbitrarily or solely on the basis of the established ground such as in the case of mental illness or a colicky baby.
- [71]The “fair and equitable” condition in s 13(1) QCAT Act is also intended to have a moderating role in cases of forced evictions of tenants.
Ground 2
- [72]The first proposition is that if mental illness is not relevant to either substantiating the objectionable conduct ground under s 297A or considering whether termination is justified under s 345A then all of the mental health opinion evidence was irrelevant to any fact in issue and wrongly used to justify the tribunal finding that the applicant would be better off in a home or with a full-time carer.
- [73]Next, the long-term suitability of Karingal, an assisted living respite centre where the applicant once stayed, was an irrelevant consideration because it was closed after the applicant left.
- [74]Thirdly, it is said the tribunal’s conclusion that the conduct would continue at the same level of intensity indefinitely[45] was inconsistent with the evidence that ongoing reduction in symptoms over time is possible if medication is consistently given over 6 – 12 months.
- [75]Finally, the tribunal allegedly ignored or underrated (a) evidence of neighbours who were happy for the applicant to stay if the issues were addressed; and (b) the aggravating effect on the applicant’s mental health of the department’s constant threat of eviction dating back to 2013/2014.
- [76]The jurisdiction being exercised is appellate, not original, and as such the function is to correct identified discretionary or factual error.
- [77]The High Court has “firmly maintained” the principle that where evidence could “by any possibility” have prevented a point from succeeding below the amendment powers on appeal will not be exercised in a way that allows it to be taken afterwards.[46]
- [78]It is only where all the facts “…have been established beyond controversy or where the point is one of construction or law” that it may be entertained for the first time on appeal.[47]
- [79]Despite implied criticisms of the way he conducted the case, the applicant is bound by the forensic decisions taken on her behalf by her legal representative even if he was acting pro bono.
- [80]Placing reliance on appeal on un-litigated facts and raising new issues of fact and degree is contrary to standard appeal principles.[48]
- [81]Leave for the applicant to argue this ground is not granted because the first proposition assumes that mental health is not a s 345A justification factor when subsection (4) substantially expands the range of non-specific relevant criteria. In any case, there is no reason for thinking that the mental health opinion evidence was not taken into account as relevant or adequately considered by the tribunal at the justification stage. It clearly just was not a decisive discretionary factor. None one of the other points were taken below.
Ground 3
- [82]Ground 3(i) asserts a failure of the justification discretion based on a principle derived from Clarey v The Principal and Council of the Women’s College[49] to the effect that loud noise is “incidental to the occupation of premises as a dwelling” and termination for undue interference is not justified in relation to any behaviour (including the applicant’s known propensities) contemplated (or reasonably anticipated) by the parties at the time the tenancy began, at least, where the applicant is not in breach of any duty to mitigate it. This argument is addressed to discretionary justification not factual substantiation.
- [83]In the department’s submission, the findings of the member in applying the relevant criteria to the exercise of the termination discretion were well inside the realm of a reasonable and legitimate value judgment or choice between rival possibilities and there is no basis for disturbing the justification finding because of:
…the established principle that, “in respect of decisions involving discretionary judgment… there is a strong presumption in favour of the correctness of the decision appealed from…”[50]
…
And “… It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion.”[51]
- [84]Clarey is restricted to its unique facts. There is no evidence supporting any rational inference against the department that it took the known risk on behalf of neighbouring residents of placing the applicant in unsuitable premises when it reasonably should have foreseen that the noise the applicant made was likely to interfere with the quiet enjoyment or privacy of other property owners to the degree that it did.
- [85]Even though there is strictly no presumption in favour of the correctness of the discretion’s exercise by administrative bodies as there is with judicial bodies the termination order is not so unjust so as to imply some unidentifiable process error. Nor is there any sign of a failure to adequately consider any mandatory or other relevant considerations in the reasoning to the result or unreasonableness vitiating it so as to justify appellate interference.
- [86]Leave to appeal on grounds 1(iii)-(iv), 2 and (3)(ii) is refused. Leave is granted to appeal on grounds 1(i)-(ii) and 3(i) but the appeal is dismissed.
Footnotes
[1]Unless otherwise stated all sections mentioned in the body of the text are to this Act referred to throughout these reasons as the tenancy statute.
[2]s 293.
[3]ss 296 (private), 296A (public).
[4]s 290A.
[5]ss 297 (private), 297A (public).
[6]s 299.
[7]ss 296(1), 297(1), 335(1)(c)-(e).
[8]s 293.
[9]ss 340(1)(b)(ix), 340(2) but cf. State of Queensland Through the Department of Housing and Public Works v Turnbull [2014] QCAT 442.
[10]ss 335(1)(e), 336, 345A.
[11]Ms Hindman QC suggests the reason for the discrepancy lies in the explanatory notes to the amendment bill introducing s 297A and 345A in 2013 which make it clear that Parliament was intent on holding public tenants to a higher standard of responsibility for the anti-social behaviour of their guests, children and visitors than s 297(1)(b) does for their private counterparts.
[12]s 290A(1)(b)(i)-(iii).
[13]s 345A(2)(a), (d).
[14]s 345A(3)(a)-(c).
[15]s 349A(2).
[16]Reasons at [67]-[68].
[17]Reasons at [81].
[18]Reasons at [99].
[19]Reasons at [62].
[20]Reasons at [41], [43], [47], [49].
[21]Reasons at [64].
[22]Reasons at [79].
[23]Deposed by Robert Walton sworn 12 December 2017, Vicki Saun sworn 12 December 2017, Benedict Coyne sworn 13 December 2017, Julian Porter sworn 16 November 2017, and Antonetta Krzeva affirmed 16 November 2017.
[24]Reasons at [105].
[25][2013] QCATA 203 [16]. See also Lamers v Attewell & Anor [2013] QCATA 136 [15]-[16].
[26]QCAT Act s 28(3)(b).
[27]QCAT Act s 8, sch 3.
[28]QCAT Act s 28(3)(e).
[29]QCAT Act s 95(1).
[30]QCAT Act s 98(1).
[31]cf. WJ v Chief Executive Officer, Public Safety Business Agency [2015] QCATA 190 [54].
[32][1984] 1 Qd R 404. See also Dalco v State of Queensland through the Department of Housing and Public Works [2014] QCATA 133 [5] (Thomas J).
[33]Acts Interpretation Act 1954 (Qld); Attorney-General (Vic); Ex Rel Dale v Commonwealth (1945) 71 CLR 237, 267.
[34]Reasons at [52]-[55], [67].
[35]Reasons at [64]-[66].
[36]Reasons at [84].
[37]Reasons at [17].
[38]Reasons at [40], [41], [47], but cf. [33] and [51].
[39]s 290A(1)(b)(ii)-(iii).
[40][2017] QCATA 21.
[41]Lawler at [20].
[42][2017] QCAT (MCDT705/17) (26 April 2017).
[43] ss 344, 345A.
[44]ss 290A, 329(2)(ia), 340(1)(b)(ix), 340(2).
[45]Reasons at [80].
[46]Coulton v Holcombe (1986) 162 CLR 1, 7-8.
[47]Water Board v Moustakas (1988) 180 CLR 491, 497.
[48]Coulton v Holcombe (1986) 162 CLR 1, 7; Coshott v Crouch [2017] FCAFC 135, [51]-[54].
[49](1953) 90 CLR 170.
[50]Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621, 627.
[51]House v The King (1936) 55 CLR 499.