Niall v Mangrove Housing Association
[2013] QCATA 123
•22 April 2013
| CITATION: | Niall v Mangrove Housing Association [2013] QCATA 123 |
| PARTIES: | Mr John Charles Niall (Applicant/Appellant) |
| v | |
| Mangrove Housing Association (Respondent) |
| APPLICATION NUMBER: | APL412-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 12 April 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Senior Member David Paratz, Member |
| DELIVERED ON: | 22 April 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused |
| CATCHWORDS: | MINOR CIVIL DISPUTE – whether grounds for appeal Queensland Civil and Administrative Tribunal Act 2009, s 3, s 162, s 164 Brosnahan v Ronoff [2011] QCAT 439 Cachia v Grech [2009] NSWCA 232 Casey v Blume [2012] QCAT 627 Dearman v Dearman (1908) 7 CLR 549 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 |
APPEARANCES and REPRESENTATION (if any):
| Applicant: | Mr John Niall |
| Respondent: | Ms L Reilly, for Mangrove Housing Association |
REASONS FOR DECISION
Mr Niall has a number of serious health issues. He was a tenant of a complex managed by Mangrove Housing Association and the dispute arises from his tenancy. Mr Niall filed a claim for compensation because of nuisance and harassment from other residents of the complex. Mangrove wanted to terminate Mr Niall’s tenancy because of his objectionable behaviour. The learned Adjudicator dismissed Mr Niall’s claim for compensation but terminated his tenancy.
Mr Niall wants to appeal that decision. He says that the Tribunal is not a court and is, therefore, illegal. He says that the warrant of possession is an illegal document because it refers to a court. He says that the Tribunal is corrupt because “it is too closely aligned with the people paying the bills”. He says that there is a corrupt arrangement between the Tribunal and Mangrove. He says that the Tribunal has abused his Constitutional right to free speech. Finally, he says that the Tribunal has perverted the course of justice.
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]
The Tribunal is not a court
[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.
Mr Niall says that the Tribunal is not a court, and cannot make a decision about the dispute. In submissions, Mr Niall focussed on the word “tribunal” and the fact that the decision-makers are not labelled “Magistrates” or “Judges”.
As we pointed out to Mr Niall at the hearing, the Tribunal is a court of record.[5] The Chief Justice has considered arguments that the Tribunal is not a court and determined[6] that:
The legislature has ordained QCAT as a court of record, and has militated independence and impartiality, hallmarks of the judicial process, as mandatory for QCAT.
Insofar as the actual operating conditions within the Tribunal may for argument’s sake not have been ideal in terms of judicial criteria, high authority supports the view that one need not nevertheless secure that ultimate ideal in order to justify the “court of law” characterization. Ultimately, there is the assurance that this Tribunal is to apply the law, and to do so in the manner in which courts traditionally operate, that is, independently and impartially. That is enough to justify calling this Tribunal a “court of the State” within the meaning of the Constitution: none of the additional features tabulated for the applicant, nor their combination, excludes that conclusion.
[5] Queensland Civil and Administrative Tribunal Act 2009, s164(1).
[6] Owen v Menzies & Ors [2012] QCA 170 at [19] - [20].
Mr Niall also argued that, because the High Court ruled that the Australian Military Court Tribunal and “refugee tribunals” were unconstitutional and unlawful, this tribunal must also be unlawful. Presumably, he is referring to the High Court decision of Lane v Morrison[7] when he refers to a military tribunal. We agree that the High Court found that the Australian Military Court was unconstitutional. Mr Niall did not tell us what he meant in relation to the refugee tribunal, We can find decisions that comment about procedural fairness of the Refugee Review Tribunal[8] but we cannot find a decision where the High Court says that it is unlawful or unconstitutional.
[7] [2009] HCA 29.
[8]Muin v Refugee Review Tribunal; and Lie v Refugee Review Tribunal [2002] HCA 30.
The Constitution limits the bodies that may exercise the judicial powers of the Commonwealth. The Constitution does not limit the exercise of the exercise of the judicial powers of the State of Queensland. That is a matter for the Queensland Parliament. Parliament has decided, through the Queensland Civil and Administrative Tribunal Act 2009, that some judicial powers should be exercised by this tribunal.
The Tribunal is a court. It is not an illegal body.
The warrant is an illegal document
The notice issued by the Queensland Police does, wrongly, refer to the warrant of possession as an order of the “court”. The notice also states, correctly, that the Tribunal issued the warrant.
The notice to tenants is a last attempt to obtain possession with a tenant’s consent. The validity of the warrant is not affected by any error in the notice. This is not a ground for leave to appeal.
The Tribunal is corrupt
We asked Mr Niall for details or evidence of the Tribunal’s corruption. He said that, as the government funded both the Tribunal and Mangrove, the Tribunal would simply rubber stamp any decision by, or request from, Mangrove. Mr Niall could not produce any evidence of corruption or any evidence to support his accusation that the Tribunal is a rubber stamp.
An object of the Queensland Civil and Administrative Tribunal Act 2009 is to create an independent tribunal.[9] The Tribunal must deal with matters fairly.[10] It must act independently[11] and it is not subject to any direction or control by any entity, including any Minister.[12] The Members and Adjudicators are mindful of their obligation to act independently. In the absence of specific evidence that the learned Adjudicator breached his obligation Mr Niall’s submission should be rejected.
Lack of procedural fairness
[9] QCAT Act, s3(a).
[10] QCAT Act, s3(b).
[11] QCAT Act, s162(a).
[12] QCAT Act, s162(b).
Mr Niall says that the learned Adjudicator ignored him generally and, specifically, ignored his health concerns. He says that he “couldn’t get a word in edgeways”. Mr Niall also says that the learned Adjudicator did not accept the bundle of documents that he tried to hand up at the hearing.
We read the transcript of the hearing carefully. There is only one point where Mr Niall offers the learned Adjudicator documents. Mr Niall offers the learned Adjudicator doctor’s certificates[13] to show he has health issues. The learned Adjudicator had already told Mr Niall that he had made his mind up in the matter and intended to give reasons for his decision[14]. It is clear from the learned Adjudicator’s reasons that he accepted Mr Niall was a man of ill-health.[15] We are not persuaded that the learned Adjudicator’s refusal to accept this late material amounts to a lack of procedural fairness.
[13] Transcript page 41, lines 8 – 9.
[14] Transcript page 41, lines 1 – 6.
[15] Transcript page 46, lines 24, 28 – 30.
We are satisfied that Mr Niall had a proper opportunity to put his case to the learned Adjudicator. The learned Adjudicator told Mr Niall that his letters amounted to objectionable behaviour. He invited Mr Niall to tell him why he should not terminate the tenancy on at least four occasions.[16] The transcript shows that Mr Niall spoke uninterrupted for some time. In fact, Mr Niall had more than his fair share of the hearing time. For these reasons, it also follows that we are not persuaded that the learned Adjudicator ignored Mr Niall.
[16] Transcript page 21, lines 1, 21, 26; page 22, line 3.
The Appeals Tribunal will not usually change findings of fact on appeal if the evidence can support the conclusions.[17] An appeal tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[18] As the High Court said in Fox v Percy:
In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.[19]
[17]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[18] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[19] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
The learned Adjudicator acknowledged Mr Niall’s health problems. He decided that those problems did not prevent him exercising his discretion to terminate the tenancy. We can find no compelling reason to disagree.
The right to free speech
The Commonwealth Constitution does imply a freedom to publish material about political or government matters.[20] The implied right refers only to political or government matters and it is not absolute. It is:
... limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution.[21]
[20] Theophanous v Herald & Weekly Times Ltd [1994] HCA 46
[21] Lange v Australian Broadcasting Corporation [1997] HCA 25;
There are many examples of the government restricting a person’s right to free speech to meet the broader needs of the community. Indeed, this tribunal has decided cases which limit the so-called right of free speech.[22]
[22]See, for example Casey v Flanagan[2011] QCAT 320; Brosnahan v Ronoff [2011] QCAT 439; Casey v Blume [2012] QCAT 627
Mr Niall complains that he was denied his rights because his tenancy was terminated for objectionable behaviour. In effect, Mr Niall is arguing that he has a right to be objectionable. He does not have such a right.
Section 297(1)(a) of the Residential Tenancies and Rooming Accommodation Act 2008 states that a lessor can apply for a termination order if the tenant has verbally abused (a range of people). The section, and indeed the Act, strikes a balance between the rights and freedoms of the tenant and the rights of the lessor and other residents. The Residential Tenancies and Rooming Accommodation Act 2008 is a legitimate fetter to the right of free speech if the exercise of that right amounts to harassment, intimidation or verbal abuse. The learned Adjudicator found that Mr Niall was abusive. Mr Niall does not really disagree with that finding. Therefore, the RTRA applies and neither Mangrove nor the Tribunal has denied Mr Niall his right to free speech.
Perverting the course of justice
Mr Niall insisted that we “write down” this ground of appeal but he did not give us any details about how the Tribunal has perverted the course of justice.
We interpret it as a catch-all phrase for Mr Niall’s dissatisfaction with the proceeding. Mr Niall has also directed his dissatisfaction to Mangrove’s refusal to breach other tenants based on Mr Niall’s complaints; its decision to seek a termination of his tenancy; and its failure to consider his health problems.
Mr Niall has ventilated all of these complaints. We understand that he is not happy with the decision but, as we have already indicated, we can find no error in the learned Adjudicator’s decision which would justify leave to appeal.
There is no question of general importance that should be determined by the Appeals Tribunal. There is no reasonably arguable case that the learned Adjudicator was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.
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