Webb v State of Queensland - [2014] QCATA 292

CITATION:

Webb v State of Queensland [2014] QCATA 292

PARTIES:	Eleanor Webb (Applicant/Appellant)
v
State of Queensland through the Department of Housing and Public Works (Respondent)

APPLICATION NUMBER:

APL281-14

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Oliver

DELIVERED ON:

15 October 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal is refused.

CATCHWORDS:

RESIDENTIAL TENANCY – SERIOUS BREACH – DAMAGE TO PROPERTY – where invitees to the tenanted premises cause damage – where tenant contends that the damage to the property was not under her control – where tenant contends she should not be responsible for damage by third parties

Queensland Civil and Administrative Tribunal Act 2009 s 143
Residential Tenancy and Rooming Accommodation Act 2008 ss 290, 290A

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

Ms Webb was a tenant in a home unit complex at Denison Court, Capalaba owned by the respondent. She had been in the property since 13 December 2013.
On the evening of 5 April 2014, there was a disturbance at the unit resulting in police attending an altercation between police officers and a visitor to the property, Mr Mickelo, which resulted in gunshots being fired by police and one of the police officers being pushed through a glass sliding door.
As a result of this behaviour, and earlier complaints concerning the applicants occupation of the property, the respondent issued a notice to leave on 7 April 2014 under s 290(1)(b)(ii) and s 290A(1)(b)(ii) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘RTRA Act’). The particulars of the conduct alleged is that the applicant intentionally or recklessly endangered another person in the premises or persons occupying or allowed on the premises and significantly interfered with the reasonable peace, comfort or privacy of another tenant or another tenants appropriate use of the premises.
The applicant did not leave the property and then on 22 April 2014 the respondent applied for an order terminating the tenancy between the applicant and the respondent in the minor civil disputes jurisdiction of the Tribunal.
The matter came on for hearing before a Tribunal Adjudicator on 29 May 2014. After hearing evidence from Ms Webb, and considering other evidence by way of statutory declarations the learned Adjudicator made an order terminating the tenancy and issued a warrant to take effect from 29 May 2014.
From that decision, Ms Webb has filed an application for leave to appeal or appeal. Because this is an appeal from a decision in the minor civil disputes jurisdiction, leave, or permission, of the Appeal Tribunal is necessary before the appeal proper can proceed.
Leave to appeal is only granted in limited circumstances, they include: where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?
Section 290A of the RTRA Act is in the following terms:
290ANotice to leave because of serious breach
(1)The lessor may give a notice to leave the premises to the tenant if the lessor reasonably believes the tenant, an occupant, a guest of the tenant or a person allowed on the premises by the tenant has—
(a)used the premises or any property adjoining or adjacent to the premises (including any property that is available for use by the tenant in common with others) for an illegal activity; or
(b)intentionally or recklessly—
(i)destroyed or seriously damaged a part of the premises; or
(ii)endangered another person in the premises or a person occupying, or allowed on, premises nearby; or
(iii)interfered significantly with the reasonable peace, comfort or privacy of another tenant or another tenant’s appropriate use of the other tenant’s premises.
(2)A notice to leave under this section is called a notice to leave for serious breach.
(3)A lessor may form a reasonable belief that premises or property has been used for an illegal activity whether or not anyone has been convicted or found guilty of an offence in relation to the activity.
(4)In this section—
lessor means—
(a)the chief executive of the department in which the Housing Act 2003 is administered, acting on behalf of the State; or
(b)a community housing provider.
Note—
See section 329(2)(ia) for requirements about the handover day for a notice to leave given because of serious breach.
The grounds of appeal contend that the learned Adjudicator involved an error of law because:
a)    The decision placed undue and almost total reliance on a one off event, that is the event which occurred on 5 April 2014.
b)    The Tribunal placed too much evidence on seven statutory declarations by unidentified witnesses who were not available to be cross-examined at the hearing as well as a letter from the Queensland Police Service dated 10 April 2014.
c)    Failed to give proper weight to the oral evidence of the applicant during the hearing on 29 May 2014.
d)    Failed to provide procedural fairness in not ensuring that the applicant was aware of the identity of those who had given the statutory declarations and that they were not present for cross-examination.
e)    That on the totality of the evidence and given appropriate weight to the evidence the learned Adjudicator should have found for Mrs Webb.
The actual events which occurred on the night of 5 April 2014 are not in dispute. Ms Webb provided a statement to the police in which she sets out the circumstances of the police involvement at the premises. It all started when she had friends over to stay on 4 April 2014 and the gathering continued through to the following evening on 5 April.
In her statement in paragraph [8] she says:
8.On about 4 April 2014 I had a few friends over that included, Lauren Torrens, Dianna Airey, Krissi Abraham. We had a few drinks and everything was fine and there was no damage to the property.
9.On 5 April 2014 a friend Jacob Pike came from New South Wales and we continued to drink in the house. I don’t think we had the stereo on until later in the day.
10.My friend Morris (Mickelo) come over in the afternoon about 1 or 2 pm and we were still talking to Jacob.
11.Later in the night the music was on, and we were drinking and having a good time we were pretty drunk.
Soon after this, a light fitting was accidently broken and whilst cleaning that up, the police arrived came into the house. That is when the altercation with Mr Mickelo occurred.
A statement has also been provided by Lauren Torrens. She says that there was no problem until the police arrived and the altercation occurred with Mr Mickelo. As a result of the altercation windows were smashed, there was a hole in the lounge room wall and there was blood on the carpet in the lounge room. She recalls that shots were fired by one of the police officers. She witnessed the events and swears that Ms Webb did not have any involvement in the altercation or the incidents with police.
The letter referred to in the grounds of appeal as annexed to Ms Webb’s is a further statement made on 29 May 2014 which recites instances that the police attended the residence at Unit 3 Denison Court on a number of occasions between 15 February 2014 and 8 April 2014. On each occasion, the letter states, that they attended because of complaints about noise and some instances of domestic violence. This evidence was placed before the Tribunal by Ms Webb.
Not included in the material on the minor civil dispute file are the statutory declarations referred to in the transcript, the authors of those statutory declarations are unknown and did not attend the hearing because of concerns about their personal welfare if their identities should become known. This was raised between the legal representatives for Ms Webb and the respondent well prior to the hearing. Issue was taken at the hearing that they were not available for cross-examination but the learned Adjudicator made this point in his reasons,[1] he said:
Now, even taking into account – certainly take into account Mr Turkovic’s[2] comments about the statutory declarations – that they haven’t – the people making them haven’t been called – but, as an aside, bearing in mind the Department’s explanation is that the people themselves are scared. But even taking into account the fact that those materials haven’t been tested, there is still a situation in which a particular incident occurred and, even on the respondent’s own evidence, a noise complaint occurred on the 5^th of April, the police were called and then it became a crime scene.
[1]Transcript page 24.
[2]The legal representative for the applicant.
This conclusion here is entirely consistent with the evidence that was put before the learned Adjudicator. The point is that although there was other evidence about disturbances prior to the incident on 5 April, two critical pieces of evidence supported the conclusion that it was appropriate for the respondent to issue a notice to leave for a serious breach seems to me was well founded.
Although there is not a lot of detail as to why shots were fired, there is reference to a person being on the premises who was ‘armed’.
It is the tenants responsibility to ensure that the premises are properly cared for and maintained. It is the tenants responsibility to ensure that persons who come onto the premises do not behave in a way which is likely to contravene s 290A(1)(b) and if that does occur, it is the tenants responsibility.
The primary submissions by the applicant here are that she took no part in the events which occurred on 5 April 2014 and the conduct of Mr Mickelo and the police officers was totally beyond her control and therefore she should not be bear any responsibility.
The learned Adjudicator considered all of the evidence that was put before him and came to a conclusion of fact, which in my opinion was clearly open on the evidence that he had to consider.
Insofar as there is an allegation of a denial of procedural fairness due to the unavailability of the witnesses of the statutory declarations, the learned Adjudicator in coming to his decision did not specifically rely on that evidence. As I read the evidence, those statements were directed to previous conduct by the applicant, which did not specifically relate to the incidents of 5 April 2014.
Therefore, insofar as it was that incident which caused the damage to the property those statements would have been marginally relevant in any event.
I am not satisfied that the learned Adjudicator made an error of law in arriving at his conclusion of fact. There is no substantial injustice and therefore leave to appeal should be refused.