Kidd v State of Queensland
[2025] QCATA 57
•11 June 2025
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Kidd v State of Queensland [2025] QCATA 57
PARTIES:
ROBERT STEWART KIDD (applicant)
v
STATE OF QUEENSLAND (respondent)
APPLICATION NO:
APL170-25
ORIGINATING APPLICATION NO/S:
MCDQ3994 of 2025
MATTER TYPE:
Appeals
DELIVERED ON:
11 June 2025
HEARING DATE:
11 June 2025
HEARD AT:
Brisbane
DECISION OF:
Judicial Member Stilgoe OAM
ORDERS:
1. Robert Kidd’s leave to appeal allowed.
2. Robert Kidd’s appeal refused.
3. A Warrant of Possession to be issued on 11 July 2025 and remain in effect to 25 July 2025.
4. The Warrant of Possession is to be executed as soon as reasonably practical after taking effect; and
5. Entry under the Warrant of Possession shall only be between the hours of 8AM and 6PM.
CATCHWORDS:
APPEAL – GENERAL PRINCIPLES – where the Tribunal terminated the applicant’s tenancy on the grounds of serious breach – where the applicant appealed on the ground of procedural fairness – where leave to appeal allowed – where appeal dismissed.
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 29, s 142(3)(a)(i)
Residential Tenancy and Rooming Accommodation Act 2008 (Qld), s 290A(2)(b)(ii).
Kioa v West (1985) 159 CLR 550
Pickering v McArthur [2005] QCA 294
APPEARANCES & REPRESENTATION:
Applicant: R Kidd
Respondent: P Mathews, on behalf of the State of Queensland, through the Department of Housing and Public Works
REASONS FOR DECISION
Mr Kidd has lived in social housing for almost 30 years. On 6 May 2025, the Tribunal terminated Mr Kidd’s tenancy on the grounds of serious breach the particulars of which are that Mr Kidd pleaded guilty to, and was incarcerated for, a serious offence – going armed so as to cause fear; dangerous conduct with a weapon; possessing dangerous drugs, and lacking the authority required to possess explosives.
The Tribunal terminated the tenancy and issued a Warrant of Possession.
Mr Kidd wants to appeal that decision. He says that he was denied procedural fairness[1] because the Tribunal refused his application for an adjournment, he had no access to documents he wanted to produce to the Tribunal, and he lacked understanding of the proceeding which he was entitled to expect.[2]
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 28.
[2]QCAT Act, s 29.
Because this is an appeal from a decision of the Tribunal in its minor civil disputes jurisdiction, leave is necessary.[3] 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.[4]
[3]QCAT Act, s 142(3)(a)(i).
[4]Pickering v McArthur [2005] QCA 294, [3].
As Mason J (as his Honour then was) observed in Kioa v West,[5] the requirements of procedural fairness must be adjusted to the statutory framework governing the Tribunal in question:
What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting: Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 552-3; National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 at 311, 319-321.
In this respect the expression “procedural fairness” more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations …
[5](1985) 159 CLR 550, 584-5.
The Department served Mr Kidd with the Notice to Leave while he was in prison. Mr Kidd says he has a brain injury, which makes it difficult for him to understand complex concepts. He wanted to be represented at the hearing, he wanted time to put documents before the Tribunal and he wanted to be represented by a tenant advocate.
The Tribunal refused the application for adjournment partly because the Department did not consent to the adjournment and partly because of the very serious offence for which Mr Kidd was incarcerated.[6]
[6]Oral Transcript of Proceedings dated 15 April 2025, at 1-10.
The Tribunal failed to take any account of Mr Kidd’s inability to participate properly in the Tribunal proceedings or to properly understand the proceeding. That amounted to a lack of procedural fairness for which leave to appeal should be granted.
The question then arises whether the appeal should be allowed. While I have considerable sympathy for Mr Kidd’s position, and serious concerns as to the Department’s failure to act as a model litigant, the appeal must be refused.
Mr Kidd was convicted of an offence which constitutes a serious breach under the Residential Tenancy and Rooming Accommodation Act 2008 (Qld)[7] and the tenancy agreement.[8]
[7]Residential Tenancy and Rooming Accommodation Act 2008 (Qld) (RTRA Act), s 290A(2)(b)(ii).
[8]State Tenancy Agreement between State of Queensland, through the Department of Housing and Public Works and Robert Kid dated 18 August 2021, at clause 19(2)(c).
The Department has a discretion as to whether to issue a Notice to Leave once a serious breach has been established. I am not satisfied that the Department has given adequate weight to Mr Kidd’s particular circumstances, being:
(a)his long-standing residence of the subject property;
(b)the absence of any evidence of poor behaviour before the “victim” of the serious offence moved in next door; and
(c)the short period between his release from prison and the requirement to vacate his residence.
Notwithstanding the Department’s failure, I am of the view that the Department’s decision to terminate the lease was correct. The offence related to a dispute with Mr Kidd’s neighbour. The neighbour is the freehold owner of his home and, therefore, is unlikely to move. Despite Mr Kidd’s protestations that he is not engaging with the neighbour and he will not cause problems in the future, the risk remains, and the Department is entitled to ensure that all residents of the facility experience quiet enjoyment.
There is no doubt that Mr Kidd will have difficulty in finding alternative accommodation. In the circumstances, although a Warrant of Possession should be issued, it should not take effect until 11 July 2025 and remain in effect to expire on 25 July 2025. The Warrant is to be executed as soon as reasonably practical after taking effect. Entry under the Warrant shall only be between the hours of 8AM and 6PM.
Orders
1. Robert Kidd’s leave to appeal allowed.
2. Robert Kidd’s appeal refused.
3. A Warrant of Possession to be issued on 11 July 2025 and remain in effect to 25 July 2025.
4. The Warrant of Possession is to be executed as soon as reasonably practical after taking effect; and
5. Entry under the Warrant of Possession shall only be between the hours of 8AM and 6PM.
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