Gela v Department of Housing and Public Works

[2014] QCATA 118

CITATION: Gela v Department of Housing and Public Works [2014] QCATA 118

PARTIES:	Agnes Gela (Applicant/Appellant)
v
Department of Housing and Public Works (Respondent)

APPLICATION NUMBER: APL394-13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Thomas, President

DELIVERED ON: 8 May 2014

DELIVERED AT: Brisbane

ORDER MADE: The application for leave to appeal is refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR  CIVIL DISPUTE – TENANCY – where interpreter not provided at tribunal hearing – whether applicant understood proceedings – whether leave to adduce fresh evidence – whether grounds for leave to appeal

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 29(1)(a), s 32, s 142(3)(a)(i)

Chambers v Jobling (1986) 7 NSWLR 1, cited
Dearman v Dearman (1908) 7 CLR 549, cited
Fox v Percy (2003) 214 CLR 118, cited
Pickering v McArthur [2005] QCA 294, applied

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. Ms Gela lived in public housing on Thursday Island. On 16 August 2013, the Department issued two notices to remedy breach; one because too many people were living in the home; the second because of harassment, intimidation and abuse of neighbours. The Department issued a notice to leave on 27 August 2013. The harassment and intimidation continued.  On 9 September 2013, a Magistrate, sitting as a member of the tribunal, terminated Ms Gela’s tenancy and directed a warrant of possession issue.

2. Ms Gela wants to appeal that decision. She says she could not present her case properly because she did not have an interpreter. She says the notices were not served on her because there is no mail delivery on Thursday Island and, that the breaches in the notices either did not occur or were remedied in time.

3. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] The principles the appeal tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as his Honour then was) in Pickering v McArthur:

   There are numerous authorities, in varying language but with unvarying emphasis, that leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]

   [1]QCAT Act, s142(3)(a)(i).

   [2][2005] QCA 294 at [3].

1. The transcript reveals that whilst Ms Gela’s evidence was disjointed and unclear, the learned Magistrate was careful to ensure that Ms Gela understood what was happening.[3] The transcript does not reveal that Ms Gela was in need of an interpreter. It contains no reference to Ms Gela requesting the services of an interpreter or making any complaint about, or expressing any concern as to, any inability to prepare the case without the assistance of an interpreter.  I am satisfied the learned Magistrate took all reasonable steps to ensure that Ms Gela understood the procedures of the Tribunal, the nature of the dispute and the consequences of the decision.[4] 

   [3]See, for example, transcript page 1-6, line 5.

   [4]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 29(1)(a).

1. Ms Gela also says that notices were not served upon her because of there being no mail delivery on Thursday Island.  The fact that Ms Gela appeared at the hearing demonstrates that, at least, she received the notices relating to the hearing, which were posted to her.  The transcript reveals that Ms Gela did not raise any issue regarding service of the notices at the hearing.  Implicit in the nature of the claim, the hearing proceeded on the basis that the notices had been served, and this position was not challenged by Ms Gela at the hearing. 

1. Ms Gela also asserts that the breaches either did not occur or were remedied in time. 

1. The Department arranged for three witnesses to give evidence at the hearing. They told the Magistrate about the harassment and intimidation, which continued after Ms Gela received the notice to leave. Ms Gela accepted Mr Ferguson’s account of her behaviour.[5] The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[6]  An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[7]  The learned Magistrate, as he was entitled, accepted the evidence of independent witnesses. I can find no compelling reason to come to a different view. 

   [5]Transcript page 1-5, lines 21-23.

   [6]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.

   [7]Chambers v Jobling (1986) 7 NSWLR 1 at 10.

1. For these reasons, there is no reasonably arguable case that the learned Magistrate was in error and no substantial injustice can be said to have been caused to the applicant.  Leave to appeal should be refused.

1. Each side has filed further affidavit material. Whilst no application to admit such further evidence was made by either party, implicit in their filing of the affidavit material is that they intended it to be relied upon. As I have come to the conclusion that leave to appeal should be refused without reliance on the contents of that material, it is unnecessary for me to rule on the issue.