Vidler v Department of Housing and Public Works
[2013] QCATA 76
•12 March 2013
| CITATION: | Vidler v Department of Housing and Public Works [2013] QCATA 76 |
| PARTIES: | Nijel Vidler (Applicant/Appellant) |
| V | |
| Department of Housing and Public Works (Respondent) |
| APPLICATION NUMBER: | APL344 -12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Senior Member |
| DELIVERED ON: | 12 March 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009, s137, s 138 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41, cited Dearman v Dearman (1908) 7 CLR 549, cited Fox v Percy (2003) 214 CLR 118, cited Chambers v Jobling (1986) 7 NSWLR 1, cited |
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.
REASONS FOR DECISION
Mr Vidler has been a tenant in public housing since 2004. Recently, his annual income exceeded the Department’s policy guidelines for public housing eligibility. The Department asked Mr Vidler to leave but he refused. On 3 October 2012, an adjudicator terminated Mr Vidler’s tenancy.
Mr Vidler wants to appeal that decision. He says that he had no notice of the decision. He does not know whether the Tribunal made the decision on the papers or in the presence of the Department. He says that the learned Adjudicator was wrong to terminate for failure to leave because the Department had stayed its decision to ask him to leave. He says that the learned Adjudicator gave unfair and unjust weight to the Department’s claim that he had failed to leave. Mr Vidler also says that there was no evidence to justify the learned Adjudicator’s decision.
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.
Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[5]
[5]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.[6] 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.[7]
[6] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[7] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
The learned Adjudicator heard from both parties on 11 July 2012. The transcript shows that the learned Adjudicator told the parties that he wanted a copy of the income policy so that Mr Vidler could make submissions about it.[8] He told the parties he would make a decision on the papers. Mr Vidler has no reason to be confused about the way the learned Adjudicator made his decision.
[8] Transcript pages 13-14
Mr Vidler made submissions at the hearing on 11 July 2012. He told the learned Adjudicator he did not think the Department properly considered his personal circumstances.[9] He thought the income cut off was arbitrary.[10] He told the learned Adjudicator about his personal difficulties.[11] I am satisfied that Mr Vidler had every opportunity to present his case and he was not denied natural justice.
[9] Transcript page 3
[10] Transcript page 4
[11] Transcript page 5
The Department did stay its decision until its internal appeal process was complete. It completed the internal appeal and sent Mr Vidler a letter on 15 June 2012, telling him that his appeal had failed and that he would be required to vacate. The learned Adjudicator did not make a decision about Mr Vidler’s failure to leave while a stay was in place.
There is evidence that the Department started asking Mr Vidler to find alternative accommodation in November 2011. He received a number of notices to vacate. His internal appeal failed so the Department decided it was time for Mr Vidler to go. I find that the learned Adjudicator gave appropriate weight to the Department’s submission that Mr Vidler had failed to vacate.
The transcript shows that the learned Adjudicator had sufficient evidence to order the termination of Mr Vidler’s tenancy. I can see no reason why I should have taken a different view of the facts.
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; and there is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.
Key Legal Topics
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Civil Litigation & Procedure
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Appeal
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