Gill v Department of Communities (Housing and Homelessness Services)
[2011] QCATA 46
•1 March 2010
| CITATION: | Gill v Department of Communities (Housing and Homelessness Services) [2011] QCATA 46 |
| PARTIES: | Mr Gregory Gerald Gill (Applicant/Appellant) |
| v | |
| Department of Communities (Housing and Homelessness Services) (Respondent) |
APPLICATION NUMBER: APL124-10
| MATTER TYPE: | Appeals |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Richard Oliver, Senior Member |
DELIVERED ON: 1 March 2010
DELIVERED AT: Brisbane
ORDERS MADE: The application for leave is refused.
| CATCHWORDS: | Minor Civil Dispute - Residential Tenancy – where applicant sought termination of tenancy of neighbour – where neighbour not a party – whether jurisdiction to make order Queensland Civil and Administrative Tribunal Act 2009, s 142(3) Fox v Percy [2003] HCA 22 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Mr Gill together with his wife Heather Gill reside at 9/45 Sutton Street, Redcliffe. The residence is owned by the respondent (“the Department”) and the Gills right to reside there is governed by a tenancy agreement between the Department and Mrs Gill.
Mr Gill has, over time, complained to the Department on numerous occasions about the conduct of a neighbouring tenant who has been identified in the material as Ms Shultz. The conduct complained of has been going on for some considerable period of time and the Department had sought to intervene on numerous occasions offering the parties dispute resolution as well as giving a Notice to Remedy Breach pursuant to the Residential Tenancy and Rooming Accommodation Act 2008 (“the Act”) to Ms Shultz. Each time this was done the breach was remedied, and the Department took no further action.
Because of the ongoing interference with the Gill’s quiet enjoyment of their rented premises, Mr Gill filed an application in QCAT asking the Tribunal to make orders to ensure that they have quiet enjoyment of their premises and further, that the Department take steps to have Ms Shultz evicted. In the transcript of evidence, the Tribunal Member asked Mr Gill what order he was seeking from the Tribunal to which he replied:
“I’m seeking an order from the Tribunal to have this person removed.”[1]
[1] Transcript line 50.
The matter came on for hearing before the Tribunal at the Redcliffe Magistrates Court on 21 June 2010. There was an open and frank discussion between the Tribunal Member, the parties representing the Department, and Mr Gill. The transcript reveals that the Tribunal Member explained to Mr Gill in plain language that the Tribunal had no jurisdiction to order the eviction of a tenant in premises owned by the Department and rented to that tenant on his application. The reason being firstly and fundamentally he could not make any order affecting the tenant’s rights without the tenant having notice of such an application. Secondly, there was no evidence that the tenant was in breach of the tenancy agreement in accordance with the provisions of the Residential Tenancy and Rooming Accommodation Act 2008. He accepted that at various times a Notice to Remedy Breach had been served on Ms Schultz but each time, the breach had been remedied and therefore, the Department had no grounds to evict her.
There was further general discussion during the course of the hearing that the conduct of Ms Shultz did interfere with the Gill’s quiet enjoyment of the use of their premises and section 183 imposes an obligation on the lessor to take reasonable steps to ensure the tenant had quiet enjoyment of the premises. This of course gives rise to a claim by Mrs Gill against the Department for relief under the Act, whether that be compensation, or grounds for terminating the tenancy agreement. However this was not what was sought in the application brought by Mr Gill.
Having explained these difficulties to Mr Gill, the Tribunal Member dismissed the application.
On 29 June 2010 Mr Gill filed an application for leave to appeal or appeal in the Tribunal’s appeal division[2]. The grounds of appeal are set out as follows:
“(1) Application before the Tribunal was not fully and properly heard.
[2] Leave is necessary: QCAT Act, s 142(3).
(2) The Administrative Adjudicator made certain unhelpful and flippant remarks addressed to me.
(3) The respondent placed before the Tribunal confidential information which was not relevant to my application.
(4) The respondent did not show the Tribunal any evidence to demonstrate that they have taken any action to resolve the situation that lead to my application.”
It is difficult to apprehend what Mr Gill means by saying that the application was not fully and properly heard. A perusal of the transcript indicates that the Tribunal Member did point out to Mr Gill the difficulties with his application and made it clear to him that he simply could not make an order that Ms Shultz be removed from her rented premises. Alternatively, to adopt a language of the Act, make a termination order in respect of Ms Shultz’s tenancy agreement, and make a further order for a warrant of possession. As I have indicated, to do so would have clearly have been a denial of natural justice in so far as it concerned Ms Shultz. It does not seem, to me, that anything further could have been discussed with Mr Gill.
In respect of ground two, this is not a proper ground of appeal unless it demonstrates bias or a denial of natural justice. If Mr Gill has any complaints about how the hearing was conducted, those complaints should be directed to the Tribunal. In any event, I do not discern from the transcript, any remarks which would clearly fall within that category. I cannot, of course, make any assessment of the tone of any remarks made by the learned Member but clearly, the application could not succeed and this was conveyed to Mr Gill.
In their response to the application, the Department does not concede that any confidential information was put before the Tribunal. That is apparent from the transcript.
The Department did make submissions to the Tribunal Member concerning steps taken to try and resolve any disputation between Ms Shultz and Mr and Mrs Gill. They had tried to arrange for alternate dispute resolution, and had issued notices of breach to Ms Shultz. As I have repeatedly said, the information before the Tribunal was that the notices to breach had been remedied and the Department, in the absence of any specific complaint of Ms Shultz breaching her tenancy agreement could not take matters further.
The Tribunal Member clearly identified what remedies were available to Mr and Mrs Gill under the Act and it was for them then to avail themselves of those remedies if they chose fit.
Finally, the Department takes the point that Mr Gill had no standing to bring the application. He is not a party to the tenancy agreement between the Department and Mrs Gill and there is of course something in this point. However, this application for leave to appeal is not decided on that point alone.
For leave to be granted my sole duty is to determine whether there is an error in the primary decision.[3]
[3] Fox v Percy [2003] HCA 22 at [32] per Gleeson CJ, Gummow and Kirby JJ.
The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?[4] Is there a reasonable prospect that the applicant will obtain substantive relief?[5] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[6] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[7]
[4] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[5] Cachia v Grech [2009] NSWCA 232 at [13].
[6] QUYD Pty Ltd v Marvass Pty Ltd (supra).
[7]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
There is no error is demonstrated on the part of the Tribunal Member, nor is any error apparent from a perusal of the transcript or the submissions made by the parties. In the circumstances, the application for leave must be refused.
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