Carrie v Department of Communities (Housing and Homelessness Services)

[2010] QCATA 15

CITATION: Carrie v Department of Communities (Housing and Homelessness Services) [2010] QCATA 15

PARTIES:	Kim Carrie (Applicant)
v
State of Queensland through the Department of Communities (Housing and Homelessness Services) (Respondent)

APPLICATION NUMBER:            APL029-10               

MATTER TYPE:

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: President

DELIVERED ON:   17 March 2010

DELIVERED AT:   Brisbane

ORDERS MADE:  

The Decision and any Warrant for Possession thereunder in Minor Civil Dispute number 551/10 heard on 9 March 2010 is stayed until fourteen (14) days after the determination of the applicant’s application for leave to appeal. 

CATCHWORDS : 

PRACTICE AND PROCEDURE – APPLICATION FOR LEAVE TO APPEAL – STAY OF PRIMARY DECISION – where applicant alleges she received two notices for hearing of primary application, for two different dates – whether stay should be granted 

Queensland Civil and Administrative Tribunal Act 2009, s 145(2)

APPEARANCES and REPRESENTATION (if any):

APPLICANT: 

RESPONDENT: 

REASONS FOR DECISION

1. The applicant Ms Carrie is a tenant of the respondent in premises at 5 Hansen Drive, Lawnton. The Department alleged that she had failed to remedy a breach of the tenancy agreement involving arrears of rent. On 9 March 2010, in Ms Carrie’s absence, the Tribunal ordered that the residential tenancy agreement between the Department and her be terminated as from midnight on the following day, 10 March, on the grounds of her failure to leave; and, that a warrant for possession issue authorising a police officer to enter the premises. The warrant took effect on 10 March and was operative until 6pm on 24 March.

1. Ms Carrie filed an application for leave to appeal in this Tribunal on 15 March and, also, an application to stay the operation of the decision of 9 March.

1. The Tribunal has a general power to make an order staying the operation of a decision being appealed against, until the appeal is finally decided: Queensland Civil and Administrative Tribunal Act 2009, s 145(2). The Tribunal may act on its own initiative.

1. In her application for leave to appeal, and also in her application for the stay, Ms Carrie asserts that the decision on 9 March was made in her absence. In particular she asserts in both documents that she had received ‘…two lots of documents for QCAT proceedings one for the 4 March 2010 and one for 9 March 2010 and had a dismissed judgement for the 4 March 2010’ (stay application).

1. In her application for leave to appeal she says:

The hearing on 9/3/10 was not attended by myself due to a mix up of paperwork from QCAT. Two sets of papers were sent – one for a hearing on 9/3 – one for a hearing on 4/3. I then received decision of QCAT advising matter for 4/3 was dismissed. I incorrectly assumed the matter for 9/3 was also dismissed. I had been dealing with the Minister’s Office in relation to this problem, and thought they had resolved things as I have paying my rent as at the last assessment, I didn’t know of rent issues.

1. The discretion to grant a stay under s 145 is unfettered. The fundamental principle governing applications for a stay is that the successful party is prima facie entitled to the fruits of its judgement, and the question is whether or not there is not some particular feature of the case which warrants departure from that position: Berry v Green [1999] QCA 213 per de Jersey CJ at [3].

1. Here the prevailing factors are that the case apparently concerns the applicant’s place of residence; that the order terminating her tenancy was to come into effect within less than 48 hours after it was made; that the warrant for possession of the premises came into effect in less than 24 hours; that when the stay was sought the warrant was in operation, and could have been executed at any time and eviction of the applicant was, on any view, imminent; that the application for leave to appeal could not practically be determined before 24 March 2010, by which time the warrant must have been executed; and, hence, that unless a stay was granted, by the time the appeal could be heard any order setting aside the decision would have been rendered nugatory and, effectively, futile.

1. These factors fell to be considered in the context of the applicant’s troubling assertion that she had received confusing and potentially contradictory documents from this Tribunal. Although that allegation was untested, again, practical considerations told against any opportunity for it to be tested within the very short period before the tenant faced actual eviction. The QCAT Act recognises the importance of proper notice to parties about hearings which affect them; it specifically provides that a party’s failure to appear at a hearing, accompanied by a reasonable excuse for that failure, is a ground upon which this Tribunal may reopen the proceeding: s 137.

1. The order granting the stay was accompanied by a further order to the effect that the application for leave to appeal will be determined by written submissions from the parties, to be exchanged on a timetable enabling an early determination.

1. In these circumstances the risk of financial loss to the State as landlord was required to be balanced against the risk of immediate eviction of the tenant unless the stay was granted, in circumstances where she raised a plausible (albeit untested) allegation that she was the victim of procedural confusion on the part of the Tribunal. Those particular elements warranted the exercise of the discretion under s 145(2) in her favour.