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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Gubier v Queensland Department of Housing and Public Works  QCATA 23
Queensland department of housing and public works
ORIGINATING APPLICATIONS NO:
MCDT1107 of 2017 and
MCDT 1678 of 2017 Brisbane
19 February 2020
14 February 2020
Dr J R Forbes, Member
The application for leave to appeal is refused.
APPEAL – APPLICATION FOR LEAVE TO APPEAL – tenancy agreement – social housing services - application by tenant for rent reduction and compensation – application by Department for termination order – where tenant, without Departmental permission, failed to occupy the subject premises for more than one year – where, in consequence of said absence the tenant ceased to be eligible for public housing assistance – where tenant alleges premises uninhabitable due to infestation of mould - where Department denies premises uninhabitable and moves to terminate tenancy - whether premises rendered uninhabitable by growth of mould – whether action by tenant out of time and barred by section 419 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) barred by section 419 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) – whether appellable errors of law or fact shown – whether leave to appeal should be granted - whether appeal should be allowed
Housing Act 2003 (Qld) s 14
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3
Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 94, s 290, s 416, s 417
Abalos v Australian Postal Commission (1990) 171 CLR 167
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Bourke v Kenjad Rentals  QCATA 81
Caltex Oil (Australia) Pty Ltd v The Dredge `Willemstad’ (1976) 136 CLR 529
Cleak v Hirt  QCATA 321
Daminato v Ingle & Ors  QCATA 233
Davie v Edinburgh Corporation (No 2) (1953) SC 34
Day v Lerch  QCA 224
Devries v Australian National Railways Commission (1993) 177 CLR 472
Durrand & Anor v Karaolis & Anor  QCATA 182
Finance Sector Union of Australia; ex parte Illation Pty Ltd, Re  HCA 30 at , (1992) 66 ALJR 583
Fox v Percy (2003) 214 CLR 118
Gould v Mazheiko & Gill  QCATA 10
Haoui v The Queen (2008) 188 A Crim R 331;  NSWCCA 209
Holtman v Sampson  2 Qd R 472
JRL; ex parte CJL, Re (1986) 161 CLR 342
London Borough of Hounslow v Twickenham Garden Developments Ltd  3 All ER 326
Loveday v Renton and Wellcome Foundation Ltd  1 Med LR 117 (Eng)
McDonald (t/as BE McDonald Transport) v Girkaid Pty Ltd  Aust Torts Reports 81-768;  NSWCA 297
McInnes v Onslow-Faine  2 All ER 211
Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611
Monroe Australia Pty Ltd v Campbell (1995) 65 SASR 16
O'Kelly Holdings Pty Ltd v Dalrymple Holdings Pty Ltd (1993) 45 FCR 145
Parktrent Properties Group & Ors v Hancox  QCATA 90
Pentelow v Bell Lawyers Pty Ltd trading as Bell Lawyers  NSWSC 111
Raymond v Doidge  QCAT 163
Realgo Investments Pty Ltd v Daley  QCATA 211
Roberts v Queensland Building and Construction Commission  QCAT 253
Routley v Philip & Anor  QCATA 119
Singh v Minister for Immigration and Ethnic Affairs  FCA 902
Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71
Waterford v Commonwealth (1987) 163 CLR 54
Appellant: The appellant in person
Respondent: Mr A K Lossberg instructed by Mr Bowman of the Department’s Legal Unit
REASONS FOR DECISION
- This matter involves cross-applications – the first by Ms Gubier for compensation and rent reduction, and the other by the Department of Housing and Public Works for a tenancy termination order. It follows that the Applicant in one action is respondent in the other. However, it will be convenient to refer to Ms Gubier throughout as the Applicant, and the Department as the Respondent.
- In 2007 the Applicant became the Respondent’s public housing tenant of a home unit in Toowoomba (`the premises’).
- In January 2015 the Applicant left the premises and took up residence elsewhere, firmly persuaded that mould infestation made the premises uninhabitable.
- It was not until February 2016, some 13 months after vacating the premises, that the Appellant informed the Respondent that she had done so.
- It is the Respondent’s policy, legislatively supported, that public housing tenants shall not leave their premises vacant for more than 8 weeks in any one year without the Respondent’s permission. At the material times the Applicant had no such permission. This rule is known as the `fair absence policy’. A tenant in breach of that policy is no longer eligible for assisted accommodation, and is liable to termination of a public housing tenancy.
- On 24 January 2017, the Appellant lodged a dispute resolution request with the Residential Tenancies Authority, seeking rent relief and compensation for the alleged ill-effects of mould upon her person and property.
- No resolution was achieved, and on 24 April 2017 the Applicant commenced her proceedings in the Tribunal. For the purposes of section 419 of the Act, those proceedings are deemed to have commenced on 24 January 2017.
- It follows that two years elapsed between January 2015, when the Applicant clearly became aware of the defects complained of, and January 2017. As the Respondent submits, that time lapse is well in excess of the six months’ limitation imposed by section 419 of the Act, which states inter alia:
This section applies if [a tenant] claim[s] there has been a breach of a term of a residential tenancy agreement ... The ... tenant ... may apply to the tribunal for an order about the breach. The application must be made within 6 months after the ... tenant ... becomes aware of the breach. (Emphasis added)
- This is a mandatory provision; the Tribunal has no power to vary it.
- It follows that the Applicant’s action for compensation is statute barred. There is no reasonable prospect of a successful appeal against that ruling. Therefore, so far as the application for leave to appeal relates to that claim, leave must be refused.
- The claim for rent reduction is considered below.
- I decided in 2013, in a ruling recently approved by Daubney J, that a claim for rent reduction is not subject to the 6-year limit imposed by section 419. Therefore it remains necessary to deal with the merits of that claim. For that reason it remains necessary to examine the facts found and conclusions drawn by the primary Tribunal.
- If, as the Applicant contends, the premises were at all material times `unliveable’, there would be a total failure of consideration and no rent would properly be payable.
- On the other hand, if the premises became unliveable at some time during the tenancy, the Applicant would have the task of proving that, at some point or points during the tenancy the premises gradually became completely or partly unfit to inhabit, without any breach of the agreement on her part.
- However, as just noted, the Applicant has elected to plead that the premises were unliveable throughout her tenancy.
- That being so, her claim to a refund of rent depends on persuading the Tribunal to accept that allegation. If the Tribunal is not so satisfied, her rental claim falls to the ground.
- In the event, the Adjudicator dismissed the Applicant’s claim:
[I]t has not been established that the property was ever unliveable ... it could have been lived in at all points.... [A]s I have found that property was and is liveable, the claim for a rent increase [sic] must fail. Ms Gubier had previously acknowledged that her claim is premised on establishing that the property is unliveable ... on [that] I have found against her.
- Plainly, the word `increase’ in this passage should read `reduction’.
- It followed from the finding of liveability that –
The ground of the [Respondent’s] application [for termination] and notice to leave have been clearly established. The tenant has not lived in the property for almost four years. Her application for an extension of absence ... was refused in April 2017. At the hearing of 12 September, Ms Gubier confirmed she had received the notice to leave and was not questioning it.
- Accordingly a termination order was made.
- Essentially that decision turns on a preference for the evidence of the Respondent’s expert, Dr Wesley Black, over that of the Applicant’s expert, Dr Neumeister-Kemp (`Kemp’). The Adjudicator made a careful and detailed comparison of the Kemp and Black reports. She noted that Kemp did not visit the premises, but relied on data collected by a Mr Saunders and processed by a laboratory. Of her own report Kemp wrote:
This is a very limited report, with only two samples to say is mould present, yes or no. This is not a comprehensive indoor air quality inspection report where we moisture map the entire premises.
- On the other hand, Black made a personal inspection of the premises. The Applicant sought to discredit his evidence, as she was entitled to do, but these attempts consisted mainly of evidence from the Bar table which – as the Adjudicator observed – was purported expert evidence that she was not qualified to give. In response to these efforts to discredit his evidence Black gave unchallenged evidence that he -
... routinely attended properties and performed environmental assessments, specifically of mould [and] moisture. He also confirmed that he was recognised as a professional microbiologist even before he did a PhD and had years of experience in this type of work, having written about 1000 reports and given evidence in many courts ... on mould issues.
- The Adjudicator concluded: `I have no doubt that Dr Black is eminently qualified to give evidence as an expert ... in these proceedings.’
- That is a decision that the Adjudicator, as judge of fact and credit, was entitled to make. Certainly it is not an appellable error to prefer one witness to another, provided that there is evidence upon which the finding may rationally be made. That is clearly the case here. It is not enough to allege errors of fact; such errors, if any, are not errors of law unless there is no evidence to support the findings in question. The Applicant has not identified any such error.
- Likewise, it must be recognised that within the limits of rationality, the weight and choice of expert evidence is a matter for the primary judge of fact. A helpful guide to the assessment of expert evidence appears in Loveday v Renton and Wellcome Foundation Ltd. That report is relatively inaccessible, but it is conveniently summarised in a decision of this Tribunal. Desirable indicia include cogency of reasons, internal consistency, the degree of care apparently taken in preparing the opinion, precision of thought and manifest independence.
Nature and limits of application for leave
- It must be emphasised that an application for leave to appeal is not an opportunity to re-run the trial, or to `second guess’ the trial judge on matters that are his or her prerogative, namely question of fact or credit. Nor it an occasion or to reiterate evidence that was tried and found wanting at first instance. It is not an opportunity to raise pleas or defences that could have been raised at the trial, but were not. Primary decisions of the Tribunal are normally expected to be final – hence the preliminary hurdle of leave before the substantive appeal is considered. Primary findings of fact are seldom disturbed on appeal. Before that is done, it must be shown that the decision in question is `glaringly improbable’ or contrary to compelling evidence. That cannot be said in this case. In our adversary system courts are often obliged to act on evidence that in an ideal world may be less than perfect.
- It is not appellable error to prefer one version of the facts to another, or to give less weight to a party’s case than he or she thinks it deserves. Even if there are two reasonable views, a preference for one view over the other is not a ground of appeal.
[N]o error of law occurs simply because the judge prefers one version of evidence to another or one set of inferences to another. This is his function. ... Even if the evidence is strongly one way the Appeal Court may not intervene simply because it reaches a different conclusion and this [is so] even if it regards the conclusion of the trial judge as against the weight of evidence.
- The Adjudicator’s preference for Black’s evidence is not a decision that this appeal Tribunal is entitled to disturb.
- Finally, the Applicant seeks solace in natural justice. In order to succeed, such a plea must amount to more than an expression of disappointment or dissatisfaction about an adverse result. According to a distinguished English judge, natural justice should be `not be allowed to run wild’. It should not be allowed to excite unrealistic expectations or to impose undue burdens.
- Natural justice requires an adequate hearing by a tribunal open to persuasion. Its demands vary according to the circumstances of the decision-making process. Here the relevant context is a tribunal dealing with minor civil disputes, working with heavy lists and demanding timelines, and designed to proceed informally, economically and speedily. Momentary impatience due to repetition, interruption or irrelevance is not bias. The practical requirements of natural justice `will be influenced by the nature, function and composition of the particular tribunal’. Allowance should also be made for a litigant’s provocative conduct.
- I have carefully read and re-read the transcript of the hearing on 22 August 2018 and I am unable to detect any unfairness or impatience on the Adjudicator’s part that could fairly be described as a denial of natural justice or departure from due process. On the contrary the Adjudicator bore irrelevance, inadmissible questions to witnesses, repetition and interruptions with admirable courtesy and patience. In a hearing that lasted two hours the Applicant was permitted to cross-examine the witness Black ad libitum for some 45 minutes. Then, and at other stages of the hearing, the Applicant sought to put scientific material in evidence without expert evidence to introduce or explain it; as the Adjudicator noted, the Applicant herself had no relevant expertise.
- There is no substance in the natural justice argument and it is rejected.
- All in all, I discern no grounds for a reasonable finding of appellable error. The application for leave to appeal must be refused.
The application for leave to appeal is refused.
Housing Act 2003 (Qld) s 14(3), Social Housing Eligibility Criteria (Dept of Housing and Public Works paragraph 4.3: `... [T]enants need to continue to demonstrate an ongoing household need for their home ... The provider must review a household’s circumstances annually to ensure that the property matches ... best use of the provider’s portfolio, including management of under-occupancy and unreasonable tenant absences ... to determine the continued need for social housing.’ (Emphasis added}.
Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (`the Act’) s 290.
 Section 416 of the Act.
 Section 417 of the Act; Raymond v Doidge  QCAT 163 at . Parktrent Properties Group & Ors v Hancox  QCATA 90 at , Routley v Philip & Anor  QCATA 119 at .
 Tribunal rulings to this effect, including judgments of judicial members, are legion. See e.g. Bourke v Kenjad Rentals  QCATA 81 at , Cleak v Hirt  QCATA 321at  (Deputy President), Daminato v Ingle & Ors  QCATA 233 at , Realgo Investments Pty Ltd v Daley  QCATA 211 at . Durrand & Anor v Karaolis & Anor  QCATA 182 at  (Wilson J, President).
Gould v Mazheiko & Gill  QCATA 10 at -.
 The Act s 94(1)(a).
 As the Adjudicator observed: Transcript of hearing on 31 October 2018 (delivery of primary decision) (`TD’) page 12 lines 34-36.
 TD page 12 lines 31-36.
 TD page 14 lines 4-8.
 TD page 16 lines 7-18.
 TD page 14 lines 34-36.
 TD page 6 lines 5-7.
 TD page 7 lines 18-21, page 8 lines 29-31.
 TD page 8 line 3.
 TD page 9 lines 10-16.
 TD page 9 lines 17-18.
Waterford v Commonwealth (1987) 163 CLR 54 at 77 per Brennan J; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 341; Pentelow v Bell Lawyers Pty Ltd trading as Bell Lawyers  NSWSC 111 at .
Monroe Australia Pty Ltd v Campbell (1995) 65 SASR 16; Davie v Edinburgh Corporation (No 2) (1953) SC 34; O'Kelly Holdings Pty Ltd v Dalrymple Holdings Pty Ltd (1993) 45 FCR 145 at 155-156; Holtman v Sampson  2 Qd R 472 at 474; McDonald (t/as BE McDonald Transport) v Girkaid Pty Ltd  Aust Torts Reports 81-768;  NSWCA 297; Haoui v The Queen (2008) 188 A Crim R 331;  NSWCCA 209 at .
  1 Med LR 117 (Eng) per Stuart-Smith LJ.
Roberts v Queensland Building and Construction Commission  QCAT 253 at .
Fox v Percy (2003) 214 CLR 118 at -; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178-179.
Caltex Oil (Australia) Pty Ltd v The Dredge `Willemstad’ (1976) 136 CLR 529 at 582-583.
 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at .
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151 per Kirby P.
London Borough of Hounslow v Twickenham Garden Developments Ltd  3 All ER 326 at 347-348 (Megarry J).
McInnes v Onslow-Faine  2 All ER 211 at 223.
 QCAT Act s 3.
Singh v Minister for Immigration and Ethnic Affairs  FCA 902; Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 123.
Re JRL; ex parte CJL (1986) 161 CLR 342 at 350 per Mason CJ; Re Finance Sector Unionof Australia; ex parte Illation Pty Ltd  HCA 30 at , (1992) 66 ALJR 583.
 Day v Lerch  QCA 224.
- Published Case Name:
Gubier v Queensland Department of Housing and Public Works
- Shortened Case Name:
Gubier v Queensland Department of Housing and Public Works
 QCATA 23
Dr J R Forbes, Member
19 Feb 2020