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Barker v Department of Communities, Housing and Digital Economy[2023] QCATA 123

Barker v Department of Communities, Housing and Digital Economy[2023] QCATA 123

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Barker v Department of Communities, Housing and Digital Economy [2023] QCATA 123

PARTIES:

David James Barker

(applicant)

v

Department of Communities, Housing and Digital Economy

(respondent)

APPLICATION NO/S:

APL116-22

ORIGINATING APPLICATION NO/S:

MCDT693-22

MATTER TYPE:

Appeals

DELIVERED ON:

18 September 2023

HEARING DATE:

24 May 2023

HEARD AT:

Brisbane

DECISION OF:

Member Carrigan

ORDERS:

The Tribunal Orders that the Application for leave to appeal or appeal filed in the Tribunal by David James Barker on 9 May 2022 is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where applicant applied for leave to appeal – where claim was a minor civil dispute – Application for fresh evidence – where applicant did not attend hearing – where hearing reopened when Applicant attended – where Applicant alleges error of facts occurred – where Applicant alleges errors of law occurred.

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 26, s 28(3)(a), s 92, s 93, s 147, s 142(3)(a)(ii)

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 337

Benson v Ware (2012) QCATA 24 at paragraph 11.

Pickering v MacArthur (2005) QCA 294 at paragraph 3 per Keane JA

Saxer v Hume (2022) QCATA 25 at paragraph 2

Allen v Queensland Building and Construction Commission (2023) QCATA 66.

APPEARANCES & REPRESENTATION:

 

Applicant:

Not-represented at Hearing

Respondent:

Sean Russell of Counsel instructed by Crown Law

REASONS FOR DECISION

  1. [1]
    On 26 April 2022 an Adjudicator ordered that the Residential Tenancy Agreement between the Department of Communities, Housing, and Digital Economy, as Lessor, (the Department) and David James Barker, as the Tenant, be terminated from midnight on 9 May 2022 and a Warrant of Possession issue authorising a police officer to enter the premises leased to the tenant. Other consequential orders were made to give effect to the termination of the Agreement.
  2. [2]
    David James Barker (the Applicant) filed in the Tribunal on 9 May 2022 an Application for leave to appeal or appeal against the order of the Adjudicator made on 26 April 2022.

Background Facts.

  1. [3]
    On 21 October 2016 the Applicant commenced a tenancy in accordance with a Residential Tenancy Agreement made with the Department for a one (1) bedroom apartment which had been constructed in 1970. The Applicant was the sole tenant of the property.
  2. [4]
    Subsequently the Department filed in the Tribunal proceedings for a Warrant of Possession against the Applicant alleging a breach of the Agreement relating to accumulation of household rubbish and recyclables in and on the surrounds to the leased premises.
  3. [5]
    On 15 April 2021 the Tribunal rejected the Department’s Application for a Warrant of Possession and provided the Applicant with additional time to remove rubbish and to improve the cleanliness and untidy state of the leased property.
  4. [6]
    Subsequently on 3 September 2021 an inspection of the premises by the Department staff deemed the external property condition to be satisfactory.
  5. [7]
    Later, on 14 September 2021 Departmental staff inspected the external property condition of the leased premises and observed that the condition had deteriorated and remained in an unsatisfactory state.
  6. [8]
    In October 2021 the Department received a complaint from the Brisbane City Council and from a neighbour in relation to unsightly materials, rubbish, recyclables at the premises. A subsequent home visit inspection by the Department staff deemed the external property condition to be of an unacceptable standard.
  7. [9]
    Further home visit inspections were made by the Department. A complaint was received from a neighbour requesting immediate removal of rubbish.
  8. [10]
    On 13 October 2021 the Department issued a Notice to Remedy for alleged failure to keep internal and external areas of the premises clean as stated in the Agreement. An interview was sought with Mr Barker but he did not attend the schedule interview.
  9. [11]
    Further complaints were received from a neighbour in November 2021 requesting immediate removal of rubbish. An inspection of the leased premises on 9 November 2021 by Department staff who observed that the condition of the property remained unsatisfactory.
  10. [12]
    Further home visits were made by the Department’s staff who found the premises in an unsatisfactory state. A second Notice to Remedy  dated 16 November was issued for failure to keep internal and external areas of the premises and the inclusions clean as stated in the Agreement.
  11. [13]
    The Department made subsequent home visit inspections on a number of occasions. The condition of the premises remained in an unsatisfactory state.
  12. [14]
    On 17 January 2022 a complaint was received from a neighbour advising that the Applicant’s was using the communal laundry to store rubbish and the property condition is in an extremely bad condition
  13. [15]
    On 2 February 2022 a third Notice to Remedy was issued alleging failure to keep internal and external areas of the premise premises and inclusions clean as required under the Agreement. A further meeting was scheduled for 9 February 2022 which Mr Barker did not attend. The Department communicated with the local community in relation to matters concerned with the condition of the leased premises.
  14. [16]
    On 22 February 2022 a complaint was received from a neighbour advising that the Applicant’s unsatisfactory property condition is attracting rodents and remains unsightly to the public.
  15. [17]
    On 23 February 2023, Departmental staff attended the leased premises and following access to the premises observe the internal conditions of the property was in an unsatisfactory condition.
  16. [18]
    On 23 February 2022 the Department issued to the Applicant a Notice to Leave for Unremedied Breaches in relation to failing to keep the internal and external areas of the premises and inclusions clean as required in the Agreement. That Notice expired on 9 March 2022 with the Applicant remaining in the premises.
  17. [19]
    On 23 March 2022 the Department filed in the Tribunal an Application for minor civil dispute – residential tenancy dispute seeking a Warrant of Possession and Termination in respect of the premises occupied by the Applicant. The Department relied upon the Notice to remedy breach dated 16 November 2021, the Notice dated 2 February 2022 and the Notice to leave dated 23 February 2022.
  18. [20]
    On 25 March 2022 a Notice of Hearing was sent to both parties informing them that the hearing would take place before the Tribunal on 26 April 2022 at 9:30 am.
  19. [21]
    The Application was heard by an Adjudicator in the Tribunal on 26 April 2022. When the hearing commenced at 9:30 am Departmental representatives were present but there was no appearance from the Applicant. The hearing continued in the absence of the Applicant. (The initial hearing). The following orders were made;
    1. the Residential Tenancy Agreement between the parties be terminated as from midnight on 9 May 2022 on the grounds of failure to leave; and
    2. a Warrant of Possession to issue authorising a police officer to enter the premises of the Applicant.

Further orders were made to give effect to the terms of the Warrant of Possession.

  1. [22]
    During the morning of the hearing the Adjudicator caused further enquiries to be made as the whereabouts of the Applicant. He was subsequently contacted and attended at the Tribunal at approximately 10 am. The Adjudicator reopened the proceedings to enable the Applicant to be heard and the Department attended by telephone. (the reopened hearing) At the conclusion of the reopened hearing the Adjudicator in effect confirmed the decision made earlier at the initial hearing.
  2. [23]
    On 9 May 2022 the Applicant filed in the Tribunal an Application for leave to appeal or appeal the Adjudicator’s decision of 26 April 2022 The Application referred to several issues including;
    1. an affidavit used in the proceeding by the Department before the Adjudicator was unsigned and was therefore invalid;
    2. from at least 20 April 2022 the Applicants contact phone number was inactive and not in operation. The Applicant did have a second telephone contact number, but this was not initially notified to the Tribunal. After several unsuccessful attempts to contact the Tribunal, finally at 10:15 am on 26 April 2022 he notified the Tribunal Registry at 259 Queen Street, Brisbane, of his second contact telephone number;
    3. the Tribunal did not follow any of the provisions of clause 23 of Practice Direction number 2 of 2022 when admitting him into the Tribunal hearing room on 26 April 2022;
    4. he says he was not prepared for the hearing on 26 April 2022 as all his documents were still at home. He said he was flustered by events of that morning and was not told in a phone call from the Tribunal at 10:45 pm that the hearing was to proceed upon his arrival;
    5. the Department introduced new evidence in the form of photographs which neither the Adjudicator nor the Applicant had access to and were discussed at length by the Department’s representative. These photographs and submissions on behalf of the Department should have been disregarded by the Adjudicator;
    6. as the Applicant did not have relevant documents but felt obliged to present his case solely from his own knowledge, he regards his defence of these proceedings was severely “injured by this limitation”;
    7. he was not aware of his rights that he could have had a later hearing and the adjudicator did not indicate this to him.

The Applicant contends that he was not provided with a fair and equitable opportunity at the hearing contrary to s 28(3)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). (QCAT Act)

Leave to Appeal a decision of the Tribunal of 26 April 2022,

  1. [24]
    The Applicant requires the Tribunal’s leave to appeal because he is appealing from a decision about a minor civil dispute and he does not have any automatic right of appeal to the Tribunal.[1]
  2. [25]
    In Benson v Ware the Tribunal considered an application for leave to appeal or appeal. Member Howard (and which the Deputy President agreed) referred to the following considerations in respect of a grant of leave to appeal;[2]

Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?

  1. [26]
    The Department’s submissions refer to the following statement in Pickering v MacArthur which sets out the requirements for the grant of leave to appeal;[3]

Leave will usually be granted only where an appeal is necessary to correct a substantial injustice to the applicant, or there is a reasonable argument that there is an error to be corrected.

  1. [27]
    More recently in Saxer v Hume the relevant tests to be satisfied for a grant of leave to appeal were stated as follows;[4]

As a general proposition, when leave to appeal to the Appeal Tribunal is required, it will be granted only where there is a reasonable argument that the decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error, or where the appeal raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage. In deciding whether grounds for leave to appeal have been shown, it is relevant to consider that the proceeding was a minor civil dispute, and the obligation on the Tribunal was to make orders it considered to be fair and equitable to the parties to the proceedings in order to resolve the dispute.

The Applicant did not attend the Hearing of the Appeal in the Appeal Tribunal

  1. [28]
    On 29 March 2023 the Tribunal gave the parties written notice that the Application for leave to appeal or appeal would be heard by the Tribunal at 1:30 pm on 24 May 2023 at Level 10, 259 Queen Street, Brisbane.[5]
  2. [29]
    On 9 May 2023 the Applicant filed in the Tribunal an Application to stay the Adjudicator’s decision[6] as well as filing various Submissions.[7]
  3. [30]
    On 24 May 2023 when these proceedings came on for the hearing in the Tribunal the Applicant did not attend that hearing. The Department was represented at the hearing by its legal representatives.[8]
  4. [31]
    The Applicant’s name was called three times outside of the hearing room in the foyer/reception area of the Tribunal. The security staff had no record of the Applicant having attended for the hearing. Attempts to contact the Applicant by the Tribunal once the hearing had commenced were unsuccessful.
  5. [32]
    The Tribunal was satisfied that the Applicant had been given a Notice of Hearing in accordance with section 92 of the Queensland Civil and Administrative Act 2009 (Qld) (QCAT Act) and decided to hear the Application for leave to appeal or appeal in the absence of the Applicant.[9]
  6. [33]
    The hearing of the Applicant’s Application then proceeded, in his absence, and the decision in the proceedings was reserved. This is the reserved decision below.
  7. [34]
    On 25 May 2023 the Applicant filed in the Tribunal an Application for miscellaneous matters to submit oral evidence or to make submissions in writing to the Tribunal because of the Applicants failure to attend the hearing on 24 May 2023. In that Application the Applicant stated;

I have this morning learned that the oral hearing for the above matter was scheduled for yesterday 24 May 2023 and not tomorrow 26 May 2023, as I believed.

I wish to convey my deepest apologies for this error and wish to seek advice from the Tribunal on the way forward from here. I have two representatives who were planning to submit oral evidence at the hearing. If it pleases the Tribunal, these submissions can be made in writing. Alternatively, we will be available for an oral hearing at another time.

Again, I apologise for my oversight. It is extremely out of character for me to miss an appointment, but I am not infallible.

I look forward to receiving further directions from you in due course.

  1. [35]
    On 31 May 2023 the Applicant filed in the Tribunal a number of documents which included a letter in support and reports from a Clinical Neuropsychologist and an Occupational Therapist.
  2. [36]
    On 13 June 2023 the Tribunal made directions for the Applicant to give a copy of the Application for miscellaneous matters to the Department and for the Applicant to file in the Tribunal written submissions, if any, referred to in the letter attached to the Application dated 25 May 2023 by 4 pm on 23 June 2023. An opportunity was given to the Department to file any submissions in reply by 5 July 2023.
  3. [37]
    The Applicant filed in the Tribunal no further material other than the documents previously filed on 31 May 2023.

Leave to File Fresh Evidence by the Applicant.

  1. [38]
    The Applicant seeks the Tribunal’s leave to rely on fresh evidence in the appeal proceedings. That fresh evidence consists of the following documents;
    1. a letter from Dr Paul Carver, Psychologist, dated 14 May 2022;
    2. an email exchange with Dr Carver, Psychologist, dated 28 April 2022;
    3. letter from Michael Berkman MP to Leanne Enoch, the relevant State Minister for the Department dated 29 June 2022;
    4. photographs showing the condition of the property on 29 June 2022;
    5. report by Dr Sarah Hanson and Dr Bryony Porter of the University of East Anglia on Hoarding Behaviours in Norwich City Council Managed Homes, dated November 2021; and
    6. copies of email correspondence between the Applicant and his Community worker dated 18 November 2021 and 22 April 2022.
  2. [39]
    The Applicant’s submissions do not explain any basis on which the Tribunal should grant leave to rely on fresh evidence. The Applicant merely identifies the documents about which leave is sought but provides no explanation to the Tribunal as to why leave should be granted.
  3. [40]
    The Department submits that the application to adduce further evidence should be refused. It says that the Tribunal has the discretion to admit additional evidence[10] but submits that to rely on fresh evidence on the appeal the Applicant should establish that;[11]
    1. the evidence could not have been obtained with reasonable diligence for use at the hearing before the Adjudicator;
    2. the evidence, if allowed, would probably have an important impact on the result of the case; and
    3. the evidence was credible though it need not be incontrovertible.
  4. [41]
    The Tribunal may decide the appeal by way of rehearing with or without the hearing of additional evidence as decided by the Appeal Tribunal.[12] The operation of s 147(2) of the QCAT Act was recently discussed in Allen v Queensland Building and Construction Commission where Judicial Member McGill SC said that the Appeal Tribunal proceeds on the basis that the usual tests for fresh evidence, as set out in Clarke v Japan Machines (Australia) Pty Ltd must be met for such evidence to be admitted on appeal[13] and then went on to state the following;[14]

The reason why additional evidence on appeal is confined as set out in Clarke (supra) in cases where there has already been the opportunity to put forward evidence at first instance is that otherwise the significance of the first proceeding is diminished, and it becomes a preliminary to an appeal, where the full range of evidence is mounted. That is contrary to the efficient use of resources, and the principle that there should be an end to litigation, both of which apply as much to the Tribunal as to a Court. So parties to a proceeding in the Tribunal are expected to put forward full evidence at a hearing on the merits, and it is appropriate that the discretion in s 147(2) be exercised in accordance with the fresh evidence rules in such cases. So far as this appeal is concerned, I propose to apply the fresh evidence rules to the additional evidence sought to be relied upon by the appellants.

  1. [42]
    The fresh evidence relied upon by the Applicant contains documents which were in existence at the date of the hearing on 26 April 2022. They include the Report from the University of East Anglia and the email correspondence between the Applicant and his Community workers. There is no explanation from the Applicant as to why these documents could not have been available at the date of the hearing. Nor does the Applicant provide any submission or information relating to what important impact on the result of the case these documents would have, apart from referring to specific paragraphs of those documents. The Tribunal refuses to grant leave for the introduction of these documents and rejects that part of the Application relating to these documents.
  2. [43]
    The fresh evidence relied upon by the Applicant contains letter and email exchanges with the Applicant’s psychologist, Dr Paul Carver dated 14 May 2022 and 28 April 2022 respectively. The Applicant had been a patient of Dr Paul Carver for some considerable time. There is no explanation from the Applicant as to why this letter or the contents of the emails sent subsequent to the date of the hearing, could not have been available to the Adjudicator at the time of the hearing. There is no explanation from the Applicant as to why these documents could not have been available at the date of the hearing given that the Applicant is a long-standing patient of Dr Carver and could have obtained the documents or information ahead of the hearing before the Adjudicator. Nor does the Applicant provide any submission or information relating to what important impact on the result of the case these documents would have on the proceedings. The Tribunal refuses the Application for leave for the Applicant to rely on these documents in the appeal proceedings.
  3. [44]
    The fresh evidence relied upon the Applicant contains a letter from Michael Berkman MP to Leanne Enoch 29 June 2022 which makes representations on behalf of the Applicant to the Minister for the Department to formally withdraw the Termination Notice and the Warrant of Possession. The letter is from a member of Parliament making representations to the Minister to exercise the ministerial discretion to discontinue termination proceedings against Applicant. The letter does not deal with the substantive issues that were before the Adjudicator as to whether certain Notices identified any breach and whether, or not, the breach justified termination. The Tribunal refuses to grant leave for the Applicant to rely on these documents.
  4. [45]
    For these reasons, the Tribunal refuses to grant leave to the Applicant to rely on that evidence in these appeal proceedings. The Tribunal dismisses the Applicant’s Application for miscellaneous matters.
  5. [46]
    However, that is not the end of the issue of fresh evidence from the Applicant. As has already been referred to, the Applicant filed additional documents in the Tribunal on 31 May 2023. This followed the Applicants explanation in the letter of 25 May 2003 explaining his absence from the Hearing of the appeal on 24 May 2023. The Tribunal made directions on 13 June 2003 for the Applicant to file any further documents referred to in his letter of 25 May 2003 and to provide written submissions stating the relevance of any of the submissions or documents to any of the issues in his Application for leave to appeal or appeal. The Applicant provided no submissions stating the relevance of any of the documents filed on 31 May 2023. The Tribunal will consider each of those documents filed on that date in accordance with the principles stated above relating to fresh evidence on an appeal.
  6. [47]
    The first of those documents is a letter in support dated 31 May 2023 from Gabrielle Doran, Case Manager, of the organisation Communify. The letter sets out that the author commenced weekly appointments with the Applicant on 27 July 2022 and recites a chronological history of that association to the date of the letter. It supports the Applicants appeal and urges the Tribunal to consider the Applicants limited insight into his disability and access to appropriate support. As previously stated the Applicant is provided no submissions as to why this document is relevant to the appeal proceedings. Further, no explanation has been provided by the Applicant as to why this document could not have been provided prior to the hearing on 24 May 2023. The letter contains factual matters and also reference to other reports but when considered in terms of the issues that are before the Tribunal in this appeal, the letter is of limited, if any, assistance.
  7. [48]
    The second document is a Neuropsychological Report dated 5 April 2023 from Caitlin Knight. That Report was requested by Gabrielle Doran, for confirmation of diagnosis regarding concerns of hoarding-like behaviours and health and safety concerns in the home in which the Applicant resides. The Report was to provide diagnostic clarity, characterise the Applicant’s current level of function to inform eligibility access to NDIS and make recommendations for future management. The Report recommended the Applicant undergo further evaluation with an occupational therapist and appropriate medical clinician to determine specific support needs and interventions. Again no submission was received from the Applicant as to the relevance of this Report nor was there in excavation as to why this report could not have been filed at an earlier date well before the Hearing on 24 May 2023. In terms of the issues to be considered on this appeal, the report provides limited, if any, assistance to the Tribunal.
  8. [49]
    The third document is an Occupational Therapy Report dated 30 May 2023 from Justin Wang. The Report says that the Applicant was referred on 15 May 2023 for a functional capacity assessment to review the Applicants support needs in his current home and community environment. That assessment was required as “he is at risk of losing his accommodation regarding the health and safety concerns raised by the Department”. The functional assessment was to highlight the Applicants overall support needs. The Report considered the Applicants current situation and relevant history but redacted any discussion relating to the “Home environment”. The report made recommendations relating to his daily living activities and risk factors which were stated as follows;

If not receiving additional support, David would likely not be able to maintain his current tenancy or in the future if any opportunity comes up. David is currently receiving support from Communify for sustaining his tenancies. However, this is not enough for him to mitigate the risk of being evicted. David’s home is extremely cluttered and he is not able to process the constant inflow of recycling items. He is aware of the consequences of this but is not able to make a sound judgement to improve his situation. The Report concluded with recommendations relating to the Applicant to improve health and safety, improve independence, increase social engagement and enhance the opportunity to build life skills. Apart from the discussion relating to risk factors, the contents of the Report do not appear to be directed towards issues in these proceedings other than providing health welfare and other background facts and matters related to the Applicant. Again the Applicant supplied no submissions as to the relevance of this Report to the proceedings in the Tribunal or an explanation as to why a similar report could not have been obtained and ahead of the hearing in the Tribunal on 24 May 2023. In these circumstances the Report is of little, if any, assistance to the Tribunal.

  1. [50]
    The statements already made above in relation to Clarke v Japan Machines (Australia) Pty Ltd and in Allen v Queensland Building and Construction Commission apply to the fresh evidence sought to be relied upon by the Applicant filed on 31 May 2023. The Applicant has already had an opportunity to put forward the evidence on which he intends to rely and should have provided the full range of that evidence earlier in these proceedings. The Tribunal is mindful that the Applicants continued reliance on fresh evidence and additional issues which is not in accordance with the principle that there should be an end to litigation. The Tribunal proposes to exercise its discretion in s 147(2) by refusing to allow the fresh evidence filed by the Applicant on 31 May 2023.

The Hearing of the Application for Leave to Appeal or Appeal

  1. [51]
    The Applicant in addition to filing an Application for leave to appeal or appeal also filed a number of Submissions. His submissions filed in the Tribunal on 21 July 2022 related to the Application for leave to appeal or appeal. The Tribunal, in the absence of the Applicant, made the Application and the Submissions part of the record of the proceedings to be considered as part of the evidence for the Tribunal’s determination.[15]
  2. [52]
    The    Applicants material filed in the Tribunal  raise these  issues;
    1. the Applicant submits that the Tribunal’s decision contained the following errors of law;
      1. failure to provide adequate reasons;
      2. failure to afford natural justice; and
      3. failure to exercise discretion or perform duties.
    2. the Applicant submits that the Tribunal’s decision contained the following errors of fact;
      1. the condition of the property on the date of the hearing and steps taken by  the Applicant to remedy the breach; (section 337(3)(b));
      2. the history of engagement with the Department;
      3. frequency of previous breaches and attendances before QCAT; (s 337(3)(d)); and
      4. availability of alternative accommodation.

Failure to Provide Adequate Reasons.

  1. [53]
    The Applicant’s Submissions state that he was provided by the Adjudicator with a summary of the reasons for decision given in the initial hearing which he did not attend and asserts that the reasons were not adequate as those reasons;
    1. only referred to evidence and submissions made by the Department;
    2. did not refer to or consider any evidence and submissions of the Applicant; and
    3. failed to identify or apply the relevant law in s 337 of the Residential Tenancies Act and in doing so failed to take into account relevant circumstances.
  2. [54]
    The Department submits that while the Applicant did not appear or have any representation when the matter came on for the initial hearing earlier in the day, the Adjudicator later that same day allowed the Applicant to reopen the proceedings and he was provided with a hearing and determination which is taken to be part of the earlier proceedings.[16] In those circumstances it submits the Adjudicator may decide to confirm its original decision made earlier that day[17] It also submits that adequate reasons for a decision do not require lengthy or elaborate reasons and it is only necessary to provide a basic explanation of the fundamental reasons which lead the decision maker to the conclusion[18] It says that the Adjudicator gave brief oral reasons at the initial hearing and when the proceedings were reopened and after hearing the Applicant's primary argument that his breaches had been remedied and the property was in a satisfactory state rejected that argument and found that it was too little too late.[19]
  3. [55]
    The question to be determined by the Adjudicator was whether there had been a failure by the Applicant to leave the premises because of an unremedied breach.[20] Specifically, for that question to be determined it depended on whether there was evidence of a failure to leave and whether a notice to leave was given because of an unremedied breach.[21] The Adjudicator found that both of those matters were established by the Department’s filing in the Tribunal it’s application on 23 March 2022 accompanied by the notices of default and the notice to leave.
  4. [56]
    The discretion of the Adjudicator whether to make an order was dependent upon being satisfied;[22]
    1. the Department had established the ground of the Application and notice to leave; and
    2. the Applicant committed the breach of the agreement stated in the notice to remedy breach about which the notice to leave was given; and
    3. the breach justifies terminating the agreement.

To be satisfied that the breach justifies the termination of the agreement the Adjudicator may have regard to a number of specified matters which include the seriousness of the breach, any steps taken by the tenant to remedy the breach and any other issues the Tribunal considers appropriate.[23] The Department makes the submission that the only issue raised by the Applicant in his Application for leave to appeal or appeal is whether the breach justifies terminating the Agreement.

  1. [57]
    At the initial hearing when the Applicant was absent, the Adjudicator proceeded to ascertain if there was evidence of the grounds of the Application and whether a failure to leave had been established.[24] In giving reasons in that hearing, the Adjudicator was satisfied that the grounds for the Application had been established and there had been a failure by the Applicant to leave the premises.[25] The reasons for decision proceed on the basis that the Applicant was in breach of the Agreement as provided in the Notices to Breach and the Notice to Leave.[26] The Adjudicator found that the breach relating to failure to keep the premises clean was established and referred to the evidence in these terms;[27]

the property is catastrophic inside and out. It is full – actually beyond. It goes to the footpath and common areas.

  1. [58]
    The Adjudicator’s reasons also found that the ground based upon the term of the Agreement not to cause a nuisance by use of the rental premises or interfere with the reasonable peace, privacy or comfort of a neighbour of the tenant was established by stating; [28]

It goes to the footpath and common areas. I note that this is part of a community scheme. That is, there are other people who have to live in this property and the extent of the filth is intolerable.

  1. [59]
    Those reasons had regard to a number of additional matters including the seriousness of the breach,[29] the fact that the breach was recurrent,[30] the detriment caused, or likely to be caused, to the Department,[31] the actions of the Department and whether they have been reasonable,[32] as well as other issues concerning the Applicants and neighbours in the community scheme.[33]
  2. [60]
    When the Adjudicator later that morning reopened the proceedings as the Applicant was now present at the Tribunal, the Adjudicator dealt with the Notices of Breach of the Agreement[34] and the Notice to Leave that had been issued,[35] and the allegation that the Applicant was in breach of the Agreement and had refused to leave the premises.[36] The Adjudicator gave the Applicant several opportunities to deal with these issues and any other matters he wished to raise in the resumed hearing. In the further reasons given by the Adjudicator at the conclusion of the resumed hearing with both parties present, the Adjudicator did not accept the evidence given by the Applicant.[37] Also in the resumed hearing the Adjudicator addressed other matters to which regard can be made under s 337 of the Tenancy Act including any steps taken by the Applicant to remedy the breach. In his reasons at this hearing the Adjudicator took into account “the history of the matter and the extent”[38] of the evidence at both hearings that day. The Adjudicator then in effect confirmed the reasons and orders made in the initial proceedings by stating “I’ll leave the order as it was this morning”.[39]
  3. [61]
    The first ground relied upon by the Applicant to argue the reasons were inadequate is that the Adjudicator’s reasons only referred to evidence and submissions made by the Department. While this may have been the case for the initial Hearing at which the Applicant did not attend, the transcript makes it abundantly clear that the Adjudicator in arriving at his decisions had regard to not only the Department’s evidence and submissions but also the additional evidence provided by the Applicant in the resumed hearings. This additional evidence was taken into account in deciding what orders should be made when the Adjudicator confirmed the earlier decision from the initial hearing. The Applicant’s first ground is selective and does not take into account the whole of the proceedings constituted by both hearings which demonstrated that when the final decision was made the Adjudicator had the evidence and the oral submissions of both parties. The Applicant has not demonstrated that there was any error in the Adjudicator’s decision which accepted the evidence of the Departmental representatives and in effect rejected the evidence of the Applicant. The Tribunal rejects the first ground relied upon by the Applicant and accepts the submissions of the Department.
  4. [62]
    The second ground relied upon by the Applicant is that the Adjudicator’s reasons were inadequate is that they did not refer to or consider any evidence and submissions of the Applicant. Again, even if that was the case in the initial hearing, the Adjudicator reopened the proceedings and allowed the Applicant to give further evidence and to make oral submissions. This evidence and submissions were in effect rejected by the Adjudicator.[40] The Applicant was given a number of opportunities in the resumed hearing to state his case and to provide any evidence or submissions which he wished to rely before the final decision was made to confirm the earlier reasons and decisions given in the initial hearing. The Tribunal rejects the second ground relied upon by the Applicant and accepts the submissions of the Department.
  5. [63]
    The third ground relied upon by the Applicant is that the Adjudicator’s reasons were inadequate in that the reasons failed to identify or apply the relevant law in section 337 of the Tenancy Act and in doing so, failed to take into account relevant circumstances. As has already been pointed out in the initial hearing the reasons dealt with a number of the matters referred to in s 337(3) of the Tenancy Act. In the resumed Hearing the Adjudicator had evidence from the Applicant where he argued he had remedied, or at least remedied in part, the breaches of the Agreement. The fact that the Applicant had not cleaned the “inside” of the premises was uncontroversial.[41] That was a relevant matter under section 337(3)(b). The problem for the Applicant is that his evidence on this issue was not accepted to the extent claimed by the Applicant. Other issues considered by the Adjudicator related to whether an adjournment would assist the parties to the dispute, but in the end the adjournment was refused. There was evidence from the Applicant of assistance from Community support workers but the evidence from the Departmental was accepted that the Applicant failed to engage with these support workers.  The issue whether the Applicant would be rendered homeless was considered during the evidence that alternative housing arrangements with support for the Applicant would be provided in the event the Applicant could no longer remain in the current premises. These considerations by the Adjudicator are further matters relevant to s 337(3) of the Tenancy Act which were part of the decision in the resumed hearing to confirm the earlier reasons and orders. The Tribunal rejects the third ground relied upon by the Applicant and accepts the submissions of the Department.
  6. [64]
    The Applicant has contended that the Adjudicator failed to give adequate reasons for the decision, but a consideration of those reasons and matters to which the Adjudicator had regard in the transcript of both hearings do not establish any failure to give adequate reasons. It follows that the Applicant’s Application for leave to appeal on this ground must fail.

Failure to Afford Natural Justice and Bias by the Adjudicator

  1. [65]
    The Applicant submits that he was denied natural justice, or procedural fairness, as he was either not given an opportunity to be heard before a decision was made affecting his interest and that the decision maker should be impartial and not prejudge the decision (bias) in the proceedings.
  2. [66]
    The basis on which it is submitted that the Applicant was not afforded an opportunity to be heard before a decision was;
    1. the Adjudicator made findings about the Applicant’s mental health and an alleged diagnosis supporting a disorder, and drawing inferences about the reasons for the alleged breaches;
    2. allowing the Department to introduce new evidence in the form of photographs taken 21 April 2022;
    3. the Adjudicator did not inform the Applicant of relevant issues so that he was not afforded a reasonable opportunity to present his case.
  3. [67]
    The basis of the bias allegations against the Adjudicator can be summarised as follows;
    1. the Adjudicator’s conduct would lead a reasonable observer to believe that he had prejudged the matter as;
      1. the Adjudicator disclosed he had asked or made arrangements to be assigned this matter for future hearings;
      2. the Adjudicator prejudged the outcome by heavily relying upon his memory of the previous hearing rather than asking questions about current circumstances;
      3. a reasonable observer listening to the resumed proceedings would form the view that the Adjudicator had prejudge the decision.
  4. [68]
    The Applicant does not support the submissions with any additional factual matters arising from the proceedings. The Department submits this ground of appeal is a little difficult to discern.[42]

Failure to provide Natural Justice or Procedural Fairness.

  1. [69]
    The Applicant refers to number of matters alleging he was not provided with natural justice or procedural fairness in the proceedings before the Adjudicator. These will be referred to separately below.
  2. [70]
    The Department submits that while there is an obligation to provide natural justice and procedural fairness that is satisfied where a party is entitled to know the case against him is given a reasonable opportunity to respond.[43]
  3. [71]
    The Applicant says he did not have prior notice that a decision was made that may affect his interest. Presumably, this is a reference to the initial hearing at which the Applicant did not attend and was not contactable by the Tribunal as he had provided a telephone number which was not in operation at the time. The Applicant took steps to notify the Tribunal of his correct contact details but it appeared that this arrived at the Tribunal too late to be made available to the Adjudicator at the commencement of the initial hearing. There was evidence before the Adjudicator that the Applicant was aware of the proceedings as he had already been sent a Notice of Hearing in accordance with the QCAT Act. In those circumstances the Adjudicator was entitled to proceed with the hearing in the absence of the Applicant.[44] The evidence is that the Applicant did have prior notice of the hearing and would have known, or ought to have known, that in the absence of attending the Tribunal or being available by telephone, that a decision would be made in his absence. Had the Applicant notified the Tribunal earlier of his correct telephone contact details the situations which arose at 9:30 am on the morning of the initial hearing would not have occurred. To that extent the Applicant was the author of his own misfortune. The opportunity for a full and fair hearing was provided to the Applicant by the Adjudicator when the hearing was reopened and the resumed hearing was then conducted on the basis that the Applicant was appraised of the case against him and was given several opportunities during that hearing to present evidence and submissions before the final decision was made. The Tribunal rejects the Applicant’s ground for leave to appeal by asserting that there has been a denial of natural justice or procedural fairness. The Tribunal accepts that the Adjudicator was entitled to proceed with the initial Hearing and by reopening the hearing at which the Applicant was present, he was then provided with an opportunity of being heard and was given a fair hearing. The Tribunal finds there was no denial of natural justice or of procedural fairness by the Adjudicator.
  4. [72]
    The Applicant further argues that the Adjudicator made findings about his mental health and alleged diagnosis of a hoarding disorder and failed to disclose that this was a critical issue to the decision. The Applicant also asserts that the Adjudicator failed to allow the Applicant an opportunity to tender relevant evidence from his treating health professionals. The transcript records that the Adjudicator referred to the Applicant in the initial proceedings as “a man with a health problem, namely, hoarding,”[45] and in the resumed hearing later that day, when the Applicant was present, the Adjudicator said to the Applicant;[46]

I know it’s happened again. You’ve got a problem. Don’t apologise. There is no need to apologise to me. You’ve got a problem. I think it’s a health problem – right – but you live in community housing and it’s unacceptable. Right.

and to other factual circumstances. The Applicant replied “I am aware of that.”[47] While the extent of the Applicant’s answer is a matter of interpretation, there was no denial by the Applicant of matters put to him by the Adjudicator. Nor did the Applicant make a specific request for an adjournment to obtain any medical or other professional evidence that may have assisted him on this issue. However, the issues before the Adjudicator related to whether the Department had given a Notice of Breach followed by a Notice to Leave and whether the Applicant had committed the breaches. The Applicant’s mental health diagnosis was not the issue being dealt with by the Adjudicator. Rather, the reference to any medical condition may well have been put forward as a background explanation as a basis for his accumulation of recyclable rubbish and other rubbish at the leased premises. In the circumstances, it was the fact that the Applicant hoarded recyclable and other material at the leased premises that was the critical issue and not the fact as to whether the Applicant did, or did not, have a medical condition which caused him to hoard that material. The Tribunal rejects this ground asserting that there has been a denial of natural justice or procedural fairness.

  1. [73]
    The Applicant says he was denied natural justice and/or procedural fairness because the Department introduced new evidence only shortly prior to the hearing. The new evidence consisted of photographs taken on 21 April 2022. The Applicant says that the photographs and the Department’s representations misled the Tribunal to believe that the condition of the property on 21 April 2023 was much worse than it in fact was.[48] This Submission overlaps with the Applicant’s main argument at the time of the hearing he had remedied the breaches and the property was in a satisfactory state although he acknowledged that he was yet to complete a clean-up of the interior of the premises. That argument was rejected by the Adjudicator. The Department submits that the Applicant had ample opportunity to present evidence on the state of the property at the hearing. It further submits the Applicant does not suggest that the photographs were not an accurate depictions of the property at the time they were taken. He was given an opportunity to respond to that evidence. The Department further submits;[49]

In circumstances where the Tribunal is not bound by the rules of evidence and has express power to admit into evidence the contents of any document despite non-compliance with rules relating to service, there is no substantial injustice to the Applicant in admitting or referring to photos in oral evidence about the state of property he occupied.

Later in its Submissions the Department stated[50] the Tribunal is entitled to inform itself in anyway it considers appropriate.[51]

  1. [74]
    The photographs relied upon by the Department went to the issue of whether the Applicant had committed a breach of the Agreement. The photographs were further proof of the breach. The Applicant should have, or ought to have, been aware from 23 March 2022 that the critical issue involved whether he had committed a breach and whether any breach justified termination. It is hardly surprising that such evidence would have been available to the Tribunal notwithstanding the filing date. In any event, the Adjudicator in reopening the proceedings for the Applicant not only summarise the issues to be dealt with by the Tribunal and that the Applicant was “appraised of what is going on”[52] also ensured that the Applicant had the photographs in his possession during the resumed hearing. The Adjudicator said while discussing the photographs of 21 April 2022 with the Applicant “I’ll show them to you”.[53] The Applicant appears to have accepted[54] the photographs from the Adjudicator and then proceeded to give his explanation of the state of the property from 2 September 2021.[55] An adjournment was sought by the Applicant to enable the collection of evidence about the cleanliness of the premises. The adjournment sought by the Applicant was refused. This evidence should have been available at the hearing.[56]
  2. [75]
    In the circumstances the evidence available does not support the Applicant’s submissions that the introduction of the photographs of 21 April 2022 shortly before the hearing resulted in any failure to provide natural justice or procedural fairness. The Tribunal rejects the ground that there has been a denial of natural justice or procedural fairness and accepts that the Adjudicator was entitled to proceed with the initial Hearing and the resumed Hearing relying upon the photographic evidence which was made available to the Applicant and which he had an opportunity to respond.
  3. [76]
    The Tribunal is not satisfied that the Applicant has established any breach of the hearing rules, as referred to by the Applicant, and rejects the submissions that the Adjudicator did not provide an opportunity for the Applicant to be heard before the decision was made affecting his interests. On the contrary, the transcript demonstrates that the Adjudicator was careful to ensure that when the Applicant did attend the proceedings for the resumed Hearing that he was informed of the issues which were to be considered and that the Departmental representative appraised the Applicant of the claims against him and then afforded the Applicant several opportunities to state his case before making the final decision.
  4. [77]
    In the circumstances the Tribunal is satisfied that the Adjudicator afforded the Applicant natural justice and procedural fairness. It follows that the Applicant’s Application for leave to appeal on this ground must fail.

Bias.

  1. [78]
    The Applicant submits that the Adjudicator was biased and conducted the proceedings in a way that would lead a reasonable observer to believe that he is prejudiced against the Applicant in this matter. He relies upon the following matters;
    1. the Adjudicator disclosed that he had asked or made arrangements to be assigned these proceedings;
    2. the Adjudicator relied heavily on his memory of a previous hearing (Application filed in October 2020) rather than asking questions and considering evidence about the current matter and the current circumstances;
    3. that a reasonable observer listening to the recorded reasons and transcript of the second hearing would form the view that the Adjudicator had prejudiced the Applicant’s case.
  2. [79]
    The Department submits that to make out a case of bias where the Adjudicator had been previously involved with these parties in the same proceedings that;[57]

it is insufficient that an earlier hearing has been conducted by a person who was previously given thought to the subject matter and, having thought about it, has formed a view with respect to it.

It submits that the Tribunal is entitled to inform itself in any way it considers appropriate.[58] It was appropriate to have regard to the fact that a previous application in relation to similar breaches had ended with the Applicant been given an opportunity to remedy the breaches, only for the same issues to appear subsequently. No reasonable observer would conclude that the Tribunal member had not bought an impartial mind to the matter merely because he had previously heard a similar application and taken the outcome of that application into account. The Department refers to Laws v Australian Broadcasting Tribunal in which Gaudron and McHugh JJ observed;

A reasonable bystander does not entertain a reasonable fear that a decision-maker will bring an unfair or prejudiced mind to an inquiry merely because he has formed a conclusion about an issue involved in the inquiry…. When suspected prejudgement of an issue is relied upon to ground the disqualification of a decision-maker, what must be for firmly established is a reasonable fear that the decision-maker’s mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that decision irrespective of the evidence or argument presented to him or her…

  1. [80]
    The grounds of bias relied upon by the Applicant relate to events that occurred during the hearing by the Adjudicator. During that hearing the Applicant made no application for the Adjudicator to disqualify himself on the grounds of bias.. He now raises this issue for the first time. The test for apprehended bias is stated by Judicial Member McGill SC in Allen v Queensland Building and Construction Commission where he stated;[59]

the test for apprehended bias is whether, in all the circumstances, a fair-minded lay observer with knowledge of the objective facts might entertain a reasonable apprehension that the Tribunal might not bring an impartial and unprejudiced mind to the resolution of the issues in the proceeding.

  1. [81]
    The Applicant’s claim of bias appears to be apparent (or apprehended) bias by the Adjudicator rather than actual bias. The test for apprehended bias is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the Adjudicator was biased.[60] A reasonable bystander would easily detect that the Adjudicator having asked for these proceedings to be listed before him had in earlier hearings made decisions in favour of the Applicant, and against the Department, so as to give the Applicant a “second chance” to remain in his leased premises in spite of alleged breaches of the Agreement. That bystander would also detect that at no time had the Adjudicator made adverse decisions or findings, whether involving the credit or otherwise, of the Applicant. In other words, a reasonable bystander would have observed that the Applicant had enjoyed a considerable amount of success in being able to remain in his leased premises despite evidence from the Department that he was in breach of the Agreement. That reasonable bystander would also have been able to identify that the Adjudicator in the initial proceedings on 26 April 2022, not attended by the Applicant, that while the Department had established the breaches and the giving of the Notice to Leave, nevertheless there was concern by the Adjudicator as to whether the Applicant would end up homeless and without community organisation service to support him in circumstances where evidence relating to the breaches was “catastrophic inside and out” of the leased premises.[61] A reasonable bystander would have also observed that notwithstanding the Applicant’s failure to give timely notice to the Tribunal of his contact details, the Adjudicator arranged for the Tribunal to contact him and to reopen the proceedings for the benefit of the Applicant. In those reopened proceedings the Adjudicator outlined the issues and then arranged for the Departmental representatives to appraise the Applicant of the case against him. The Adjudicator gave the Applicant several opportunities to fully state this case. An adjournment requested by the Applicant was refused but this was done only after hearing from both parties (no appeal has been brought against the refusal of the adjournment). It was only after giving the Applicant an opportunity to present his case that the Adjudicator then made in Orders which were adverse to the Applicant. There is no evidence of any preconceived prejudice by the Adjudicator and a reasonable bystander would come to the conclusion that every effort was made to give the Applicant a full and proper hearing.
  2. [82]
    In the circumstances the Tribunal is satisfied that the Adjudicator was not biased but afforded the Applicant every opportunity before finally making up his mind that Orders adverse to the Applicant should be made to remove him from the premises for breach of the Agreement. The Tribunal is not satisfied that the Applicant has established any ground of bias and rejects the Applicant’s submissions. It follows that the Applicant’s Application for leave to appeal on this ground must fail.

Failure to Exercise Discretion or Perform Duties.

  1. [83]
    The Applicant submits that the Adjudicator’s refusal to grant an adjournment application during the resumed Hearing ought to have been addressed as part of a fair and balancing hearing. The Adjudicator asked leading questions and made comments the effect that he was bound by the wishes of the Department in that regard.[62]
  2. [84]
    The Tribunal has the power to adjourn a proceeding.[63] Whether the Tribunal grants an adjournment is a matter to be determined according to the Tribunal’s discretion.
  3. [85]
    The Transcript records that the Applicant first asked for an adjournment towards the conclusion of the resumed Hearing when he asked the Adjudicator;[64]

you’re not prepared to try one more time?

  1. [86]
    The purpose of the adjournment appears to be to allow the Applicant to obtain evidence to show that the leased premises were now in a satisfactory state or condition. That is, the Applicant wanted adjournment so that he could prove that he had remedied the breaches alleged by the Department. However, that was one of the central issues that was to be heard and determined by the Adjudicator on 26 April 2022. The Applicant had been given notice of the hearing in sufficient time for him to prepare his case. The Adjudicator proceeded to hear the adjournment request and sought a response from the Departmental representatives as to their attitude for a short adjournment for several weeks. The Department responded with substantial reasons for refusal of the adjournment. There was no proper explanation from the Applicant why he had failed to bring to the resumed hearing that day his evidence about the present state and condition of the premises or any evidence that he had remedied any breach. As the Adjudicator had remarked earlier, it was all “too little, too late” by the Applicant. The Applicants request was inadequately supported by appropriate evidence and he did not provide any relevant considerations that might overcome the substantial objection to an adjournment by the Department.
  2. [87]
    For these reasons, the Tribunal is satisfied that the Adjudicator properly exercised his discretion in refusing the adjournment. It follows that the Applicant’s Application for leave to appeal on this ground must fail.

Errors of Fact

  1. [88]
    The Applicant submits that the Adjudicator made errors of fact. Those errors can be summarised as follows;
    1. condition of the property on the date of the hearing;
    2. history of engagement with the Department;
    3. frequency of previous breaches and attendances before QCAT; and
    4. availability of alternative accommodation.

Condition of property on the date of the Hearing.

  1. [89]
    The Applicant refers to a “chain of events” from July 2021 to about mid-March 2022 which demonstrate a gradual removal of recyclable items and other items from the outside of the premises with the rate of removal of items accelerating in March 2022. He says by Easter, 2022 the front yard had been returned to the state deemed acceptable by the Department on 3 September 2021.
  2. [90]
    The Applicant then submits that;

it appears that the Adjudicator did not consider this as relevant to his decision.

  1. [91]
    The Applicant’s evidence included the following after being shown photographs taken by the Department on 21 April 2022;

… Also, I have cleaned up the yard, as I expected it would be on second of September 2021 when they came around and they called it acceptable. That is a standard I was looking for, I was aiming for, and if they change their minds on that, I am sorry. I will – I can do better, I suppose, if I had more time but that’s the standard I was aiming.

  1. [92]
    Later in the resumed hearing after further questions from the Adjudicator about the state and conditions of the premises the Applicant stated;

Now, there might be one or two things in there, like a couple of brooms and things, and tools and things. There’s a few tools there but I can move them to the garage if I have to. But I will start moving things away from the balcony and the inside over the next week or two if they want to…

  1. [93]
    The transcript shows that the Adjudicator had photographs of the state and condition of the premises on 5 April 2022 and also on 21 April 2022.[65] The photographic evidence on 21 April 2022 shows that the balcony of the premises was full of items but looking at the photos through the back window from the driveway side there are items that are piled up to near ceiling height. The evidence went on to state that there are still items that are scattered around the communal areas and the Department was receiving complaints from neighbours in regard to their quiet enjoyment to the property. That evidence from the Department continued as follows;[66]

And also out the front, we do acknowledge that there has been a drastic downsizing of items but there are still items piled away on the left side of the entry doorway, as well as out the front of the court yard gate. So it wasn’t satisfactorily addressed on 21 April.

  1. [94]
    When the Adjudicator asked the Applicant whether he had not cleaned the inside of the premises the response from the Applicant was;[67]

I’ve started that.

  1. [95]
    After the Applicant had referred to the condition of his front yard he said “I don’t have to do much – you know that, the front yard – to keep it that way” the Adjudicator referred to the photographs of 21 April 2022 and the Applicant said;[68]

But I will start moving things away from the balcony and inside over the next week or two if they want to.

  1. [96]
    It is clear from the transcript that the Adjudicator did not accept the evidence of the Applicant.[69] The Adjudicator preferred and relied upon the evidence of the Departmental representatives, Mr Gray and Ms Molloy.[70]
  2. [97]
    The above references to the transcript referred to evidence of both parties which was taken into account in reaching the decision based upon the Adjudicator’s acceptance of the Departmental representatives evidence in preference to that of the Applicant. That provided a proper basis for the Adjudicator to determine the state or condition of the premises at the hearing on 26 April 2022. The state and condition of the premises the Applicant tried to articulate in that hearing was rejected.
  3. [98]
    For these reasons the Tribunal rejects the submissions made by the Applicant that the Adjudicator failed to take into account his evidence of the state of the premises. Those submissions failed to take into account that the Applicant’s version was opposed and did not prevail according to the decision of the Adjudicator. The Tribunal rejects this ground relied on by the Applicant. It follows that the Applicant’s Application for leave to appeal on this ground must fail.

History of Engagement with the Department.

  1. [99]
    The Applicant submits that at the hearing his evidence that the Department had not engaged with him and with the community support services was not accepted by the Adjudicator. The Applicant seeks to explain that any lack of engagement was a reflection of the fact that he did not accept solutions offered by the Department and the support services organisation, such as Communify, rather than alternative solutions such as supporting the Applicant to move his recycling business to an alternative site. He also submits a lack of engagement by the Department with his psychologist, Dr Paul Carver.
  2. [100]
    The issue of the lack of engagement by the Applicant with the Department and support services was raised in the resumed hearing when the Applicant was present.[71] The Adjudicator directed the Applicant’s attention in the hearing to the allegation that he had “not engaged” and “won’t talk to them”.[72] The Applicant responded that he had seen them “last week” and sent an email about matters the same day.[73]
  3. [101]
    The Adjudicator raised this issue directly with the Applicant who had the opportunity to say all he wanted about that matter. In other parts of the transcript the Applicant refers to his involvement with his service worker from “Communify”[74].
  4. [102]
    As previously referred to above, the evidence of the Departmental representatives was accepted ahead of that of the Applicant by the Adjudicator. The attempt by the Applicant to make submissions about his evidence which was not accepted at the hearing appears to be an attempt to relitigate the finding by the Adjudication to accept the Department’s evidence again in the appeal process. Rather, the Applicant should be concentrating on whether issues come within the principles for the grant of the leave to appeal as already explained above in Benson v Ware. The issues related to the history of the Applicant’s dealings with the Department and with support workers was properly addressed at the hearing before the Adjudicator. This ground does not raise any relevant ground on which leave to appeal should be granted in these appeal proceedings.
  5. [103]
    The Tribunal rejects the Applicant’s submissions as this matter was properly heard and resolved by the Adjudicator and this ground raises no proper basis to interfere with the findings of the Adjudicator. It follows that the Applicant’s Application for leave to appeal on this ground must fail.

Recurrence of. Breach of the Agreement

  1. [104]
    The Applicant says that the Adjudicator had an erroneous belief about timeframes being shorter than what had occurred and this affected his decision when considering this aspect of the matter.
  2. [105]
    The Adjudicator was acutely aware that there had been “three separate occasions and for precisely the same issue” as was now being raised by the Department for the termination of the Agreement.[75] This is evident from the following exchange between the Adjudicator and the Applicant in the proceedings below;[76]

Adjudicator: Well, Mr Barker, it’s just common knowledge. You’ve been here before, last year, and at that stage you had a man with you, I recall. A friend, I think.

Mr Barker:  Yeah.

  1. [106]
    The Applicant does not refer or demonstrate any error by the Adjudicator in making the decision based on the evidence available to terminate the Agreement.
  2. [107]
    Again, the Applicant’s submissions on this matter appear to be an attempt to re-litigate in the appeal proceedings matters that were before the Adjudicator rather than to address whether there is a proper ground of appeal in accordance with the principles of Benson v Ware as referred to above. The Applicant’s submissions and this ground do not raise any basis for the grant of leave to appeal. It follows that the Applicant’s Application for leave to appeal on this ground must fail.

Availability of Alternative Accommodation.

  1. [108]
    The Applicant submits that the Adjudicator “appeared to place weight on the Department’s assertion that alternative accommodation was available” so that the Applicant would not face homelessness in the event his Agreement was terminated. He submits that following his enquiries “in the weeks following the hearing, he learned that occupancy in the Park Hotel is constantly nearer hundred percent” such that the place cannot be guaranteed to be available at a particular time.
  2. [109]
    The transcript of the proceedings records at the Adjudicator was concerned to ensure that if the Agreement was terminated that the Applicant would not be made homeless. The Adjudicator endeavoured to make sure that the Applicant was in appropriate accommodation should the Agreement to be terminated. The Department gave evidence of the type of accommodation with support services available, that could be provided to the Applicant should be Agreement be terminated. The decision of the Adjudicator in the initial Hearing had already been referred to alternate accommodation available in the early part of the proceedings with the Departmental representatives. The Park Hotel was not the only accommodation available. It was referred to as an example of supported accommodation appropriate for the Applicant.
  3. [110]
    This ground and the submissions relied upon seeks to introduce new evidence that has been ascertained since the conclusion of the hearing before the Adjudicator. It is an attempt to have the appeal process relitigate this issue of alternative accommodation rather than to address principles on which the grant of leave to appeal can be made in accordance with the statements in Benson v Ware.
  4. [111]
    The Tribunal finds that this ground of appeal does not raise any relevant ground for the grant of leave to appeal and does not address the following issues;
    1. whether there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or,
    2. whether there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief,
    3. whether leave is necessary to correct a substantial injustice to the Applicant, caused by some error.
  5. [112]
    The ground of appeal relied upon by the applicant does not address any of the relevant criteria set out in (a) to (c) above. The Tribunal rejects the Applicant’s ground relating to alternative accommodation as it does not establish any relevant basis for the grant of leave to appeal from the decision of the Adjudicator. It follows that the Applicant’s Application for leave to appeal on this ground must fail.

Detriment Caused to the Department by the Breach.

  1. [113]
    The Applicant raises the ground of detriment in s 337(3)(d) of the Tenancy Act and submits a number of matters in which the Adjudicator erred because;
    1. there were a number of failures by the Department including failing to take into account the Applicant’s disability; engage with his Psychologist, categorising the Applicant as a “hoarder” and failed to follow evidence-based approaches to engage with boarding problems;
    2. the Applicant says he worked with community support organisations to remediate the unit and finding a longer term solution which the Department failed to recognise;
    3. the detriment caused by the breach needs to be weighed against the costs of proceeding with the Termination Order in circumstances where the Applicant alleges the breaches have been remedied and he will not be able to afford or navigate the private rental market.
  2. [114]
    A number of these matters have already been dealt with and to that extent they are duplicated in the submissions. However, the issues before the Adjudicator under s 337(3)(d) of the Tenancy Act was the detriment caused, or likely to be because, to the Department. The Applicant’s submissions relate to ways in which the Department allegedly failed to properly treat him or to properly have regard to his working with community supports and the alleged remediation of his unit including detriment to him in being able to afford or navigate the private rental market. The Applicant by his submissions ignores the wording of the subsection above and basis his submissions on detriment to him rather than to the Department. These submissions misconceive the proper construction of s 337(3)(d).
  3. [115]
    This ground raised by the Applicant does not address any of the relevant criteria referred to above in an Appeal Tribunal considering whether to grant of leave. The Tribunal rejects the Applicant’s ground related to an detriment as it does not establish any relevant basis for the grant of leave from the decision of the Adjudicator. It follows that the Applicant’s Application for leave to appeal on this ground must fail.

Whether the Department has acted Reasonably about the Breach.

  1. [116]
    The Applicant raises the ground of reasonableness of the Department as referred to ins 337(3)(e) of the Tenancy Act. The primary submission is that the Department did not act reasonably as it failed to engage with the Applicant, his psychologist and community support organisation to explore appropriate and workable solutions that took account of his disability. He specifically refers to the following;
    1. some actions of the Department further hampered his ability to remediate the property;
    2. the Department made no allowance for adverse weather conditions that may affect his ability to attend to the breach;
    3. there was not any appropriate attempt made to engage with him in a respectable manner appropriate to the attributes of his disability;
    4. the approach of the Department was one of dictatorial authority and no attempt to negotiate the possibility of mutually beneficial solutions; and
    5. the Department failed to consider his human rights and ignored his disabilities
  2. [117]
    The evidence at the Hearing accepted by the Adjudicator includes the following;
    1. that the Applicant doesn’t engage with the Department and “that’s been an ongoing issue”;[77]
    2. Department tried to engage with the Applicant through a community organisation called Communis five but were advised by that organisation they had been unable to provide support to the Applicant as he continues to disengage from their services;[78]
    3. there have been repeated attempts by the Department to engage the Applicant, as well as through a support organisation called Communis five, to address this matter. It seems to be an ongoing issue that the applicant has not engaged with.[79]
    4. that the Brisbane City Council attempted to engage the Applicant to remove items from the footpath. The Department was advised the Council had to go to the address where the Applicant resides  and remove those items.[80]
  3. [118]
    At the Hearing before the Adjudicator no specific evidence was provided (and none is referred to in the Applicant’s submissions for leave to appeal) setting out in what way it is alleged the Department’s actions further hampered his ability to remediate the property. The same lack of evidence relates to the Departments alleged failure to make allowance for adverse weather conditions.  Similarly there was a lack of evidence about the allegation in the submissions that there were no appropriate attempts made to engage with the Applicant in a respectful manner appropriate to the attributes of his disability. Neither was there evidence of any “dictatorial authority” or of alleged failure to “negotiate the possibility of a mutually beneficial solution”. It appears the Applicant now wants to use the appeal process to introduce issues, but with no evidence, which should have been dealt with at the Hearing.
  4. [119]
    The Applicant’s ground of appeal and his submissions do not establish there is any basis on which the Tribunal could accept that the relevant criteria referred to already has been made out for the grant of leave to appeal. The Tribunal rejects the Applicant’s ground related to the alleged unreasonableness of the Department as there is not any relevant basis for the grant of leave to appeal from the decision of the Adjudicator. It follows that the Applicant’s Application for leave to appeal on this ground must fail.

Affidavit of Mollie Beresford.

  1. [120]
    The Applicant raises as a ground for the grant of leave to appeal and to appeal that in the hearing before the Adjudicator, the Department served him with an unsigned copy of an affidavit of Mollie Beresford. He made submissions to the effect that this impugned the evidence before the hearing.
  2. [121]
    The transcript of the hearing before the Adjudicator does not record any complaint made by the Applicant to the Adjudicator that had been served with an unsigned copy of the affidavit. The transcript is silent about any remarks by the Applicant relating to this topic.
  3. [122]
    There is no evidence that the Applicant prior to the hearing requested a signed copy. The Application for minor civil dispute – residential tenancy dispute was filed on 23 March 2022. The Application was heard by the Adjudicator on 26 April 2022. Even if the Applicant was served with a copy of that affidavit shortly prior to the hearing, there is no evidence that the Applicant raised this with the Department prior to, or at, the hearing.
  4. [123]
    In any event, on the Tribunal file containing the documents for the hearing is a sworn affidavit by Mollie Beresford. That affidavit was sworn before Paul Carlton, a Commissioner for Declarations, registration number 77074.
  5. [124]
    The Department makes the following submission about the affidavit of Mollie Beresford and also the photographs relied upon by the Department as follows;[81]

Evidence in a hearing may be given orally or in writing and need only be on oath if the Tribunal requires.[82] The Tribunal did not require the Department’s evidence to be given on oath so the Applicant’s technical complaints about the manner in which the Affidavit was taken are without merit.

  1. [125]
    The Tribunal has regard to the above evidence available from the Hearing and also to s. 95(4) of the QCAT Act that evidence need only be on oath if required by the Tribunal. It is for the Tribunal to determine whether the evidence will be given orally or in writing and whether it is to be given on oath. The proceedings before the Adjudicator were conducted on the basis and there was no requirement for the evidence to be on oath.
  2. [126]
    The Tribunal accepts the Department’s submissions. The ground relied on by the Applicant for leave to appeal and his submissions are rejected. The Tribunal finds that this ground does not provide a basis for the grant of leave to appeal. It follows that the Applicant’s Application for leave to appeal on this ground must fail.

Conclusions in respect of the Application for Leave to Appeal.

  1. [127]
    The Applicant has submitted various grounds of appeal based upon errors of law and errors of fact allegedly made by the Adjudicator. Each of those matters has been considered and the Tribunal has concluded that no such errors were made by the Adjudicator and the Applicant has not established any of the following criteria for a grant of leave to appeal;
    1. whether there is some question of general importance upon which further argument and a decision of the Appeal Tribunal, would be to the public advantage; or,
    2. whether there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief, or
    3. whether leave is necessary to correct a substantial injustice to the Applicant, caused by some error.
  2. [128]
    The Department’s Submissions respond to the alleged errors of law and errors of fact and concluded with the final submission that;

The Applicant has failed to demonstrate any error in that approach to the material by the Tribunal. It follows that the application for leave to appeal should be dismissed.

  1. [129]
    The Tribunal accepts the submissions of the Department that no error in the approach by the Adjudicator has been demonstrated and that the Application for leave to appeal should be dismissed.
  2. [130]
    The Tribunal having considered the various grounds and submissions of the Applicant for leave to appeal finds that there is no reasonably arguable case of error of the Adjudicator and there is not a reasonable prospect that the Applicant would obtain any further substantive relief in the event that the appeal proceeded.

Orders

  1. [131]
    The Tribunal having found that the Applicant has not established a basis for leave to appeal from the decision of the Adjudicator orders that the Application for leave to appeal or appeal filed in the Tribunal by David James Barker on 9 May 2022 is dismissed.

Footnotes

[1]QCAT Act, s 26 & s 142(3)(a)(ii).

[2](2012) QCATA 24 at paragraph 11.

[3](2005) QCA 294 at paragraph 3 per Keane JA.

[4](2022) QCATA 25 at paragraph 2.

[5]Exhibit 1.

[6]Filed in the Tribunal on 9 May 2022.

[7]See Submissions filed on 16 May 2022, 21 July 2022 and 22 July 2022 (the submissions on this last date of payment as the submissions filed 21 July 2022).

[8]See the Tribunal's decision dated 7 February 2023 to allow all parties leave to be legally represented in the proceedings.

[9]See the Transcript of the Hearing on 24 May 2023 for the reasons and the decision of the Tribunal pursuant to section 92 and 93 of the QCAT Act to proceed in the absence of the Applicant. see also Exhibits 1, 2 and 3.

[10]QCAT Act s 147.

[11]Clarke v Japan Machines (Australia) Pty (1984) 1Qd 404, 408.

[12]QCAT Act s. 147(2).

[13](2023) QCATA 66 at paragraph 3.

[14]Above note 13 at paragraph 5.

[15]See Exhibits 3,4 and 5.

[16]Department’s Submissions filed 11 August 2022 at paragraph 30. See QCAT Act s 140.

[17]Department’s Submissions filed 11 August 2022 at paragraph 30.

[18]Department’s Submissions filed 11 August 2022 at paragraph 31.

[19]Department’s Submissions filed 11 August 2022 at paragraphs 33–37.

[20]Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (Tenancy Act) s 293 and s 337.

[21]Tenancy Act s 337(1)(a)­­ & (b).

[22]Tenancy Act s. 337(2).

[23]Tenancy Act s. 337(3).

[24]Tenancy Act s. 337(2).

[25]Transript n1-5 (35-47) & 1-6 (1-2), (4-8).

[26]Transcript at page 1–6 (4–9).

[27]Transcript at page 1–5 (38–41).

[28]Transcript at page 1–5 (38–41).

[29]Transcript at page

[30]Transcript at page 1–5 (43–47)

[31]Transcript at page 1–6 (8) where the evidence of the Departmental representatives is accepted and which includes evidence time effort and administrative arrangements taken up by this matter.

[32]Transcript at page 1–5 (43-47) & 1-6 (1-2).

[33]Transcript at page 1–5 (37–42).

[34]Transcript at page 1–8 (23).

[35]Transcript at page 1–8 (28).

[36]Transcript at page 1–7 (33–47), 1–8 (1–36), 1–9 (5–34), 1–9 (42–47) & 1–10 (1–350).

[37]Transcript at page 1–14 (45–47).

[38]Transcript at page 1–15 (1).

[39]Transcript at page 1–15 (2-5).

[40]Transcript at page 1–15 (1–3).

[41]Transcript at page 1–10 (15–20) & 1–13 (25–47).

[42]Department’s Submissions filed 11 August 2022 at paragraph 38.

[43]Department’s Submissions filed 11 August 2022 at paragraph 27 & 28 and relying on Kioa v West (1985) 159 CLR 550.

[44]QCAT Act s 92 & s 93.

[45]Transcript at page 1–2 (29–31).

[46]Transcript at page 1–9 (42–47).

[47]Transcript at page 1–10 (5).       

[48]Applicant’s Submissions at paragraph 14(c).

[49]Department’s Submissions at paragraph 25.

[50]Department’s Submissions at paragraph 41.

[51]QCAT Act s 28(3)(c).

[52]Transcript 1–7 (29–30).

[53]Transcript 1–9 (1–6).

[54]Transcript 1–9 (9).

[55]Transcript 1–9 (26–47).

[56]Transcript 1–13 (44–47) and 1–14 (1–44).

[57]Department’s Submissions filed 11 August 2022 at paragraph 39 and relying on R v Commonwealth Conciliation and Arbitration Commission; Ex Parte Angliss Group (1969) CLR 546, 555.

[58]Department’s Submissions filed 11 August 2022 at paragraph 40 relying on QCAT Act s 28(3) and the Tenancy Act s 337(3)(f).

[59]At paragraph 12.

[60]Porter v Magill (2002) 2 A C 357.

[61]Transcript at page 1–5 (38).

[62]Applicant’s Submissions filed 21 July 2022 at paragraphs 16–19.

[63]QCAT Act s 57(1)(c).

[64]Transcript at page 1–13 (20).

[65]Transcript at page 1–8 (15–24) & 1–9 (1–25).

[66]At page 1 – nine (20–25).

[67]Transcript at page 1–10 (17–20).

[68]Transcript at page 1–13 (24–36).

[69]Transcript at page 1–14 (45–47) & 1–15 (1-8).

[70]Transcript at page 1–6 (7-10).

[71]Transcript at page 1–7 (32–38)

[72]Transcript at page 1–10 (35–40).

[73]Transcript at page 1–10 (40–43).

[74]For example see the Transcript at page 1–10 (33–35).

[75]Transcript at page 1–5 (35–40), 1–nine (27–35) & (35–47).

[76]Transcript at page 1–9 (35–40).

[77]Transcript at page 1–2 (12–14).

[78]Transcript at page 1–4 (22–28).

[79]Transcript at page 1–7 (35–40).

[80]Transcript at page 1–11 (19–25) & see page 1-12 (1–5) for the Applicant’s response about involvement with the Brisbane City Council.

[81]Department’s Submissions filed 11 August 2022 at paragraph 24.

[82]QCAT Act s 95(4).

Close

Editorial Notes

  • Published Case Name:

    Barker v Department of Communities, Housing and Digital Economy

  • Shortened Case Name:

    Barker v Department of Communities, Housing and Digital Economy

  • MNC:

    [2023] QCATA 123

  • Court:

    QCATA

  • Judge(s):

    Member Carrigan

  • Date:

    18 Sep 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Allen v Queensland Building and Construction Commission [2023] QCATA 66
2 citations
Jump To
Cite 1 - [2023] QCATA 66
Cite 2 - [2023] QCATA 66
Benson v Ware [2012] QCATA 24
2 citations
Jump To
Cite 1 - [2012] QCATA 24
Cite 2 - [2012] QCATA 24
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404
1 citation
Jump To
Cite 1 - [1984] 1 Qd R 404
Kioa v West (1985) 159 C.L.R 550
1 citation
Jump To
Cite 1 - (1985) 159 C.L.R 550
Pickering v McArthur [2005] QCA 294
2 citations
Jump To
Cite 1 - [2005] QCA 294
Cite 2 - [2005] QCA 294
Porter v Magill [2002] 2 AC 357
1 citation
Jump To
Cite 1 - [2002] 2 AC 357
R v Commonwealth Conciliation and Arbitration Commission (1969) CLR 546
1 citation
Jump To
Cite 1 - (1969) CLR 546
Saxer v Hume [2022] QCATA 25
2 citations
Jump To
Cite 1 - [2022] QCATA 25
Cite 2 - [2022] QCATA 25

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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