Gyemore v Department of Housing and Public Works
[2014] QCATA 314
•17 November 2014
| CITATION: | Gyemore v Department of Housing and Public Works [2014] QCATA 314 |
| PARTIES: | Davina Gyemore (Applicant) |
| v | |
| Department of Housing and Public Works (Respondent) |
| APPLICATION NUMBER: | APL430 -14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe OAM |
| DELIVERED ON: | 17 November 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – where three strikes issued under Department Housing policy – where tenant unable to access evidence in support of strike out until hearing – where tenant did not deny behaviour giving rise to three strikes – whether denial of natural justice – whether grounds for leave to appeal House v The King (1936) 55 CLR 499 |
APPEARANCES and REPRESENTATION (if any):
The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
Ms Gyemore is a single mother of seven children. She has lived at her current address since 2005.
In 2013, the Department changed its social housing policy to discourage objectionable behaviour. Between September 2013 and July 2014, Ms Gyemore received three notices to remedy breach. The last of these was a final Strike Notice and Notice to leave. Ms Gyemore did not leave. The Department applied for a termination order, which the tribunal granted.
Ms Gyemore has appealed the tribunal’s decision. She says there has been a denial of natural justice and, therefore, she has been significantly disadvantaged.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. 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?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?[4]
[1] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2] Cachia v Grech [2009] NSWCA 232 at 2.
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4]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.
The application filed by the Department and served on Ms Gyemore by the tribunal had limited information. It referred to the three strikes, but there were no supporting affidavits. At the hearing, the Department filed affidavits and statements from neighbours. The neighbours all gave evidence that Ms Gyemore’s home was the site of drunkenness, fighting, abusive language, late night arguments and abuse. The neighbours told of their fear of damage to their property, injury to themselves and of the significant impact on their lives.
Ms Gyemore says that she had asked the Department for evidence of the complaints on two occasions prior to the tribunal hearing, but the Department declined to provide that evidence. She says that she tried to access the information through Freedom of Information but access was not available in time for the hearing. Her advisers asked for de-identified copies of the affidavits, but that request was also declined.
Ms Gyemore submits that the Department withheld the documents with the intention of disadvantaging her defence because she was not able to properly review, or respond to, the documents. She submits that, given time, she would have been in a better position to respond to the documents.
One witness did attend the tribunal hearing. Ms Schmidt gave evidence that Ms Gyemore’s guests yelled racial abuse at her[5]. She gave evidence of threats and intimidation[6]. She told the tribunal of her fear[7]. She told the tribunal that Ms Gyemore’s guests threw items over the fence[8]. She told the tribunal of death threats[9]. Ms Gyemore’s representative did not cross examine Ms Schmidt[10]. None of that evidence was challenged.
[5] Transcript page 1-8, lines 32 – 33.
[6] Transcript page 1-8, lines 39 – 40.
[7] Transcript page 1-8, line 42.
[8] Transcript page 1-9, lines 1 – 2.
[9] Transcript page 1-9, lines9 – 11.
[10] Transcript page 1-10, lines 36 – 41.
The tribunal has to balance the need for a fair hearing against the need to protect potential witnesses from fear and intimidation. The learned Member gave Ms Gyemore’s advisers a full opportunity to address her on the facts. Even though she was represented by experienced tenancy advocates, Ms Gyemore did not ask for an adjournment of the hearing to enable other evidence to be obtained. None of the allegations was denied. Rather, the behaviour was admitted and Ms Gyemore spoke of the difficulty in controlling her relatives. I am satisfied that Ms Gyemore received procedural fairness and that an adjournment, or an earlier disclosure of the affidavit material, would not have changed the facts that were before the learned Adjudicator.
The Appeal Tribunal will not interfere with an exercise of discretion unless it can be shown that the learned Adjudicator acted upon a wrong principle, or made mistakes of fact which affected the decision, or was influenced by irrelevant matters[11]. Just because the Appeal Tribunal might have exercised the discretion differently, that is not a basis for changing the decision: it must be shown that the decision is plainly unjust or unreasonable, and involved a clear misapplication of the discretion[12].
[11] House v The King (1936) 55 CLR 499, at 504.
[12] Lovell v Lovell (1950) 81 CLR 513.
The learned Adjudicator gave much thought to the exercise of her discretion to terminate the tenancy. It was, and is, a difficult decision to remove a single mother of seven children from her home. It is even more difficult when the prospect of suitable alternative accommodation is slim. I can find no reason to interfere with the learned Adjudicator’s exercise of her discretion.
There is no reasonably arguable case that the learned Adjudicator was in error. There is no reasonable prospect of substantive relief on appeal. Leave to appeal should be refused.
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