Department of Communities, Housing and Digital Economy v Ward [2023] QCATA 56

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Department of Communities, Housing and Digital Economy v Ward [2023] QCATA 56 PARTIES: DEPARTMENT OF COMMUNITIES, HOUSING AND DIGITAL ECONOMY (appellant) v KELLY-MAREE WARD (respondent) APPLICATION NO/S: APL355-21 MATTER TYPE: Appeals DELIVERED ON: 18 May 2023 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Richard Oliver ORDERS: 1. Leave to appeal is granted. 2. The tribunal’s decision of 8 November 2021 is set aside. 3. A termination order is made on the grounds of failure to leave. 4. I direct the issue of a Warrant of Possession to the Principal Officer of Police at the relevant Police Station in the State of Queensland in the following terms: (a) This warrant takes effect on the 12 June 2023 and whereas the Queensland Civil and Administrative Tribunal has made the termination order above, you are authorised for a period of 14 days from the above date expiring on 26 June 2023 to: (i) Enter the premises and give possession of the premises to the respondent herein and; (ii) Exercise such powers under this warrant with necessary and reasonable help and force. -- 1 of 5 -- 2 (iii) Enter under this warrant to be made between the hours of 8:00am and 5:00pm CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – Where applicant provides social housing – where applicant and respondent entered into residential tenancy agreement – where tenant convicted of possession of drugs whilst in the property – where disturbance and use of the property inconsistent with the terms of the tenancy agreement – where applicant issued a Notice to Leave – where failure to leave and Termination Order sought – where application dismissed – whether discretion to dismiss miscarried – whether relevant considerations taken into account. Queensland Civil and Administrative Tribunal Act 2009 s 142(3)(a)(i) Residential Tenancy and Rooming Accommodation Act 2008 ss 290A and 340 Rintoul v State of Queensland & Ors [2018] QCA 20 Terera v Clifford [2017] 181 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION [1] Ms Ward was the beneficiary of the Applicant’s (“Department”) social housing policy and 8 July 2021 entered into a residential tenancy agreement with the Department for a three bedroom detached house Clontaff. The occupants of the house under the tenancy agreement were Ms Ward and her three teenage daughters. Her daughters, although the subject of Child Safety orders, chose to stay with their mother, and they were of an age where their choice was acknowledged. Ms Ward had a long history of criminal and anti-social behaviour and was in fact on parole for drug offences at the time of the tenancy agreement. [2] The tenancy agreement was for a three-year period with a nominal rent of $177.80/wk. The usual provisions of the tenancy agreement applied. Clause 19 of the tenancy agreement provided that the tenant must: - not use the premises for an illegal purpose; - cause nuisance by the use of the premises; or ……………… - interfere with the reasonable peace, comfort or privacy of a neighbour of the tenant; or allow another person on the premises to interfere with the reasonable peace, comfort or privacy of the neighbour of the tenant. [3] Very soon after the commencement of the tenancy, the Department received complaints about Ms Ward’s conduct. A shipping container and donga were deposited -- 2 of 5 -- 3 in the yard. A large fence was constructed without approval. Neighbours complained about noise and multiple individuals remaining on the premises at all hours of the day. Complaints were made to the Moreton Regional Council about the structures on the property. [4] Police were called to the residence on multiple occasions. On 15 September 2021 police attended with a search warrant and found dangerous drugs on the premises. Ms Ward was charged with possession of dangerous drugs, pleaded guilty and was fined. After this there were further complaints made by neighbours. [5] Because of the drug charges the Department sought to terminate the tenancy agreement and issued a Notice to Leave under the Residential Tenancy and Rooming Accommodation Act 2008 (“RTRA Act”). Ms Ward failed to comply, and then the Department filed an application in the Tribunal seeking a Termination Order and Warrant of Possession in reliance on the failure to leave under s 340 of the RTRA Act. In particular, the termination was sought because the notice to leave was in respect of a serious breach at public or community housing. [6] The application came on for hearing on 8 November 2021. After hearing from both parties, and in particular, Ms Ward’s explanation for her conduct, the application was dismissed. It is evident from the transcript that there was no serious factual dispute about Ms Ward’s conduct since she commenced the tenancy. She admitted the possession, conceded people just walked in off the street and the structures were in the yard. The dog fence was built without written authority and she was concerned that if she lost the tenancy she would have nowhere to live. [7] The learned adjudicator’s reasons demonstrate the difficulty in coming to a decision in these circumstances which effectively would put Ms Ward and her three children on the street without accommodation. He took into account the complaints of the Department, the unauthorised use of the premises being the container and donga located in the yard and the construction of the fence. However, he accepted that Ms Ward, although guilty of possession of a dangerous drug, there was no charge of using, which inevitably would have been a breach of parole. [8] The learned adjudicator accepted that the container had been removed, the donga not used as a habitable space and the fence had been taken down. Although there were complaints by neighbours about noise, disturbance with people attending the premises at all hours with police being called the principal ground was the possession charge. He concluded in all the circumstances, she should be given a second chance and exercised his discretion to dismiss the application. [9] The Department filed an application for leave to appeal or appeal on 18 November 2021. The grounds of appeal are essentially that the Tribunal did not give sufficient weight to the evidence presented at the hearing in particular “the admittance of the tenant that drugs have been used in the property, the sale and purchase of drugs are illegal use of the premises. The grounds go on to say: The court is limited in changing the decision of the department as illegal activity is not allowed in public housing. Serious Breach has been identified as illegal behaviour. QPS has laid charges and the tenant has been found guilty in court. Under this category, the court only required the proof the form 12 is valid and validly served and has supported evidence which in this case are charge sheets. -- 3 of 5 -- 4 [10] As this is an appeal brought under s 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 in respect of a decision in a proceeding for minor civil dispute an appeal may be made only if the party has obtained leave of the tribunal. In Rintoul v State of Queensland & Ors [2018] QCA 20 at [10] the Court of Appeal reiterated the general principles: The principles governing a grant of leave to appeal are well-established. In short, an applicant for leave to appeal must show: (a) the appeal is necessary to correct a substantial injustice; (b) there is a reasonable argument that there is an error to be corrected. There must be reasonable prospects of success to warrant a grant of leave. Therefore, in deciding whether to grant leave to appeal the Court usually makes some preliminary assessment of the prospects of the proposed appeal. 1 [11] In this case there is no real dispute of fact. The tenant was in serious breach of the tenancy agreement which could not be remedied. Also, and insofar as it is relevant, there were breaches of the covenant of quiet enjoyment. [12] This then leads to the question as to whether or not the learned adjudicator erred in the exercise of discretion. The question can be considered against what the High Court said in House v R (1936) 55 CLR 499: The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges compose in the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts on a wrong principle, if he allows extraneous irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed, and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if on the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. [13] The most obvious consideration here in the exercise of discretion, given the admitted serious conduct, is the personal circumstances of Ms Ward. She had moved from social housing in Zillmere to Clontaff to accommodate her three daughters. She had little regard for the responsibilities of being provided with accommodation by allowing a donga and container to be placed at the property. She had dogs, and again, the accommodation was not for maintaining animals but for her family. She allowed visitors day and night, ostensibly to check on her and her children, but the evidence of her conduct tells a different story, in particular the regular attendance of police at the property. By taking up his housing opportunity, she is depriving many others who are also in need. [14] The learned member in exercising the discretion took into account that Ms Ward was not convicted of using drugs and also that Ms Ward would adhere to her obligations under the tenancy agreement in the future, by reason of the bringing of the application 1 Citing Terera v Clifford [2017] QCA 181 -- 4 of 5 -- 5 for termination. In doing so he did not give sufficient weight to the other important and serious considerations referred to above. In particular, the seriousness of the breaches of the tenancy agreement and her conduct during the course of the tenancy. One can understand the sympathetic approach and the desire to give Ms Ward a second chance, but where there is a serious breach or breaches of the tenancy agreement the RTRA Act provides a remedy to lessor’s which cannot readily be overlooked. The Department was entitled to the termination order. [15] I have come to the decision that the discretion here did miscarry on the grounds that the leaned member, did not take into a relevant consideration being the seriousness of the breach and the overall conduct of Ms Ward during the tenancy as summarised in the affidavit of Tina Kilgower filed in the original proceeding. Also the rights of the Department to a termination order in circumstances where there were valid and legitimate grounds for issuing the Notice to Leave. [16] As this involves a question of law, leave to appeal will be granted, the appeal is allowed, and a termination order made with a warrant for possession to issue. -- 5 of 5 --