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- Unreported Judgment
Kamara v Department of Housing and Public Works QCATA 99
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Kamara v Department of Housing and Public Works  QCATA 99
Department of Housing and Public Works
ORIGINATING APPLICATION NO/S:
28 June 2019
On the papers
Application for leave to appeal refused.
APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – where an application was made to terminate a tenancy on the basis of objectionable behaviour – where documents were handed up by the Department at hearing – where the respondent tenant was allowed time to peruse the document – whether a breach of natural justice
Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 297A, s 345A
Pickering v McArthur  QCA 294
REASONS FOR DECISION
- Mr Kamara was a tenant of a unit at Logan Central. The lessor was the Department of Housing and Public Works. The tenancy was initially for a fixed term starting 30 August 2017 through to 11 August 2018 and after that it continued as a periodic tenancy on the same terms and conditions.
- The Department applied for a termination order in the Tribunal with respect to his tenancy on the grounds of objectionable behaviour. The matter came on for hearing before an adjudicator at Beenleigh on 19 November 2018. The learned Adjudicator ordered that the tenancy be terminated as from 3 December 2018.
- Mr Kamara has applied for leave to appeal that decision.
- Given this is an appeal from a decision made in the Tribunal’s minor civil dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.
- Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice and where there is a reasonable argument that there is an error to be corrected. There may be other relevant considerations, but these are primary.
- The grounds of appeal are that Mr Kamara was not afforded natural justice at the hearing. He says:
"The Tribunal had an obligation to ensure Mr Kamara understood the proceedings and to conduct the proceedings in a way that was responsive to cultural diversity but failed to do so.
He was not afforded sufficient time to consider documents relied on by the Department which were only handed to him at the hearing.
Because of the late production of documents relied on by the Department he was not able to adequately respond at the hearing."
- English is not Mr Kamara’s first language. He came from Africa to Australia as a refugee in 2009. At the hearing he was granted leave to be assisted by another person, Mr Oliver.
- From the transcript of the proceeding it appears Mr Oliver speaks English competently. He understood what was said to him by the learned Adjudicator. He was given the time necessary to make representations on behalf of Mr Kamara.
- The transcript also disclosed that Mr Kamara speaks some English; though hesitantly, he was able to make himself understood when he spoke and he seems to have understood what was being said by both the learned Adjudicator and the representative from the Department.
- The officers from the Department handed up various documents at the start of the hearing. They included a copy of a statement made to police by his neighbour, five statements in the form of statutory declarations or affidavits by other tenants in the block of units where Mr Kamara resided complaining about his behaviour plus two letters from Queensland Police Service detailing numerous complaints made to police of disturbances or disputes or noise complaints occurring at Mr Kamara’s unit and police responses.
- Mr Kamara and Mr Oliver were given a copy of the material. The learned Adjudicator asked Mr Kamara if he read English and he replied yes. The matter was then stood down for some 25 minutes to give Mr Kamara and Mr Oliver time to read the material.
- On resuming the hearing Mr Kamara was asked if he had read all the documents and he replied ‘I read some’. Mr Kamara was then asked why his tenancy should not be terminated. The material from the Department suggested that quite a few people residing near Mr Kamara had suffered significant disturbance for a considerable period of time.
- Mr Oliver then spoke uninterrupted for some time, not disputing the numerous instances of alleged objectionable behaviour against Mr Kamara but laid responsibility for the objectionable behaviour at the feet of Mr Kamara’s cousin and friends of the cousin who visited Mr Kamara on a regular basis.
- The transcript shows Mr Oliver articulated his submissions clearly if in slightly broken English, but generally well, and that Mr Kamara understood what was being said on his behalf. Mr Oliver also suggested Mr Kamara wanted to move from the unit and Mr Kamara reiterated that desire on more than one occasion himself to the learned Adjudicator. The following exchange is recorded:
Mr Oliver: I believe he is a honourable person, and the sooner he get a place far away from…
Mr Kamara: yeah
Mr Oliver: … this area, I think it be better. It will help him to look after his kids. He’s not a harmful person.
Adjudicator: Yes. Anything else Mr Kamara?
Mr Kamara: Just that’s all I’m praying God for.
Adjudicator: Thank you
Mr Kamara: Yeah, to just move me from there, because people come and they do things, and they [indistinct] money, and they [indistinct] on my door, and they stole my car [indistinct] and they went in [indistinct] yesterday. This one I have a photo – day before yesterday – he come and park right to my door [indistinct] I said, But why you would do that to me? I never park my car to your door [indistinct] where I make my garden, they came in park in my garden, and [indistinct] I said come and take it – to [indistinct] – because don’t want to harm nobody, but why they harming me, and doing things to me, what they’re going through [indistinct] innocent victim. That’s all.
Adjudicator: Thank you
Mr Kamara: And I’ve been in this country, I then gave my visa to you, I’m capable person, I will show you my document. I came here, I studied, I work, and I [indistinct] see, I’m looking after my kids. That’s all.
Mr Oliver: And what happened a few weeks ago, the boys that comes to that compound, I think the policeman report them, they got – they were arrested [indistinct]
- The learned Adjudicator then took submissions from the officers from the Department who said they would not transfer Mr Kamara to other Department housing because there had been ongoing problems with Mr Kamara’s tenancy and ongoing problems associated with visitors to his unit. Transferring him to other Departmental housing would, they submitted, simply transfer the problem to another group of State tenants.
- The learned Adjudicator proceeded to terminate Mr Kamara’s tenancy and gave reasons for making that order. He said he had listened to Mr Oliver and Mr Kamara carefully but concluded the evidence of objectionable behaviour was made out. He did not accept that Mr Kamara played an entirely passive role in the many incidents detailed in the letters from police and the written complaints from other occupants of the unit complex. He said there had been ongoing disturbances at the unit complex caused by the occupants of Mr Kamara’s premises and also by Mr Kamara. He was not satisfied, as suggested by Mr Oliver, that things would change and he was cognisant of the Department’s obligations with respect to other residents in the complex and aware of the other people awaiting housing assistance from the State.
- The learned Adjudicator referred to the relevant provisions in s 345A of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘the Act’), objectionable behaviour in public or community housing, and he was satisfied the grounds of objectionable behaviour were established and Mr Kamara’s behaviour justified termination.
- Following the making of the order terminating Mr Kamara’s tenancy, Mr Oliver suggested the order was harsh, that Mr Kamara would struggle to find alternate accommodation and that he was not currently working. He said Mr Kamara would not be able to afford a property ‘in the market’.
- Mr Kamara offers no explanation as to how it is claimed the Tribunal’s conduct of the proceedings was not responsive to cultural diversity. By s 143(2)(b) of the QCAT Act, an application for leave to appeal must state the reasons for the application. How the proceedings should have been different to respond to cultural diversity is left unexplained and is not readily identifiable from a perusal of the transcript. Such broad brush complaint without particulars is no ground of appeal.
- Mr Oliver was allowed to represent Mr Kamara and both were given adequate opportunity to speak and both given an adequate opportunity to read the documents handed up to the Tribunal by the Department at the hearing. The matter was stood down for that purpose.
- The evidence of disruptive and objectionable behaviour founding the application for termination was strong however and was not challenged other than to suggest it was Mr Kamara’s visitors, not him, causing problems for the other residents. Even if that had been accepted by the Tribunal (which it was not), by s 297A of the Act, the lessor may apply for a termination order if a tenant, an occupant, a guest of the tenant or a person allowed onto the premises by the tenant harasses intimidates or verbally abuses a person occupying premises nearby or causes a serious nuisance to people occupying premises nearby.
- The minor civil dispute list is a very busy list. Hard working adjudicators labour to hear and finalise on average 11 matters each day. The objects of the QCAT Act include having the Tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick. There are no pleadings in the Tribunal, parties are expected to represent themselves, and it is not unusual for parties to tender their evidence at the hearing and provide a copy to the other party on the day of hearing only, not before. Whether that is fair in the circumstances must be assessed on a case-by-case basis, however the heavy workload of the Tribunal in the minor civil dispute list and the objects under the QCAT of informal, quick and economical justice generally permits and even requires such course of conduct.
- I note in his application for leave to appeal that Mr Kamara sought, amongst other things, leave to file fresh evidence at the appeal, in particular, documents he claimed he would have presented at the hearing below to respond to the claims of the Department had he understood the Tribunal’s process. The parties were directed to file any application for leave to adduce fresh evidence by a certain date but no applications and no fresh evidence has been filed. It is therefore questionable whether Mr Kamara was disadvantaged as claimed concerning having an opportunity to hand up documents on the day of the hearing.
- I am satisfied Mr Kamara understood the proceedings and he was afforded sufficient time to peruse the documents relied upon by the Department. He understood what the proceedings were about. He had been given notice to remedy breach (interfering with the reasonable peace, comfort or privacy of neighbours) more than two months before the hearing and then after he failed to remedy the breach, given notice to leave. Those notices were unnecessary under the Act given the basis of termination was objectionable behaviour. The Department could simply have applied straight to the Tribunal for a termination order. Given those notices however, he well knew there was an issue concerning his conduct and the conduct of his visitors at the unit and he knew he faced termination of his tenancy because of his behaviour and the conduct of his visitors. In the initial application filed by the Department the Department stated quite clearly that it intended to rely on affidavits that would only be handed up at the hearing. Mr Kamara was not taken by surprise at the hearing.
- I conclude Mr Kamara was afforded procedural fairness and there was no error in the conduct of the matter in the Tribunal below that should be corrected.
- The application for leave to appeal is refused.
- Published Case Name:
Kamara v Department of Housing and Public Works
- Shortened Case Name:
Kamara v Department of Housing and Public Works
 QCATA 99
28 Jun 2019