Betts v Department of Housing and Public Works [2019] QCATA 180

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Betts v Department of Housing and Public Works [2019] QCATA 180 PARTIES: TRACEY BETTS (appellant) v DEPARTMENT OF HOUSING AND PUBLIC WORKS (respondent) APPLICATION NO/S: APL053-19 ORIGINATING APPLICATION NO/S: MCDT 345/18 (Pine Rivers) MATTER TYPE: Appeals DELIVERED ON: 8 November 2019 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Gordon ORDERS: Leave to appeal is granted. The appeal is allowed. The decision made on 6 December 2018 in MCDT 345/18 Pine Rivers is set aside. The matter is returned to the tribunal for reconsideration. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – JUDGE MISTAKEN OR MISLED – where Department of Housing applied to terminate a tenancy but presented some inaccurate evidence – where Adjudicator was misled by this evidence and was unable properly to exercise discretion whether or not to terminate – whether an error which should be corrected on appeal LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – RECOVERY OF POSSESSION – where Department of Housing ended housing assistance – whether the tribunal is able to review that decision – whether the tribunal retained some discretion whether or not to make a termination order -- 1 of 13 -- 2 TIME, WEIGHTS AND MEASURES – TIME – COMPUTATION OF TIME GENERALLY – WHAT DAYS INCLUDED AND EXCLUDED – where lessor gave a notice to leave a residential tenancy – where day when notice was given should not be counted thereby making the notice one day short – where the notice ended on a Saturday – whether section 38(2) of the Acts Interpretation Act 1954 (Qld) meant the notice was enlarged to the Monday Acts Interpretation Act 1954 (Qld), s 38(1), s 38(2) Housing Act 2003 (Qld), s 65 Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 290, s 326, s 329, s 340(2), s 349A Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 147 Simonova v Department of Housing and Public Works [2018] QCATA 33 REPRESENTATION: Appellant: Self-represented, assisted by Bradshaw Pattison Lawyers Respondent: Self-represented APPEARANCES: 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 The Department of Housing and Public Works applied to the tribunal for termination of the tenancy of Tracey Betts on the grounds of failure to leave following the ending of housing assistance. The Department decided to end housing assistance for the tenant because the Department’s officers believed she had absented herself from the premises for eight weeks or more without approval. The application for termination was heard by an Adjudicator on 6 December 2018 at Pine Rivers. The Adjudicator made the termination order. The tenant now appeals against that order. The Appeal Tribunal has obtained a transcript of the hearing before the Adjudicator. At the hearing, the tenant was represented by a neighbour. Prior to the hearing she had received assistance from solicitors who had communicated with the Department. The same solicitors have provided submissions on her behalf in this appeal. At the hearing, the Adjudicator heard evidence from both sides on the question in issue between them, that is whether or not the tenant had been living at the property in the period leading up to the ending of housing assistance which it seems, was ended in about early September 2018. -- 2 of 13 -- 3 After hearing the evidence, the Adjudicator gave his decision with reasons. One important decision made by the Adjudicator was as follows:-1 It is not the role of the tribunal to engage in a judicial review of the department’s exercise of its discretion to end housing assistance in this matter. The Adjudicator also said that he accepted the evidence adduced by the Department and expressed the view that on that basis it was more probable than not that the tenant had been absent from the rental premises for a much greater period of time and for much greater absences than the tenant had admitted at the hearing.2 So he accepted that there was a factual basis for the ending of housing assistance. He also decided that the notice to leave was valid, and that the tenant had not left the premises, and so it was right to make a termination order and issue a warrant of possession. After the hearing the tenant applied to reopen the proceedings. That application was accompanied by an application for a stay of the termination order and warrant for possession. The application for reopening was heard by an Adjudicator on 5 February 2019 and was refused. The warrant for possession was reissued. This appeal was lodged on 1 March 2019. It was accompanied by an application for a stay pending resolution of the appeal. A stay was granted by the Appeal Tribunal. Grounds of appeal Some of the grounds of appeal refer to matters which did not form part of the process relied on by the Department to terminate the tenancy. I have ignored these grounds as irrelevant to this appeal.3 I have also ignored some obscure points made on appeal.4 The effective grounds of appeal appear from the application for leave to appeal or appeal, and also from the application for a stay pending appeal. They are:- (a) The notice to leave dated 4 October 2018 on Form 12 was defective because the notice it gave was one day short, contrary to statutory requirements. (b) Various points made about the form and contents of an affidavit of service dated 12 November 2018. (c) That the tenant had not changed her address with Centrelink as stated by the Department. (d) That the tenant had not had the electricity disconnected as stated by the Department. (e) Procedural unfairness because:- 1 Transcript page 1-28, line 15. 2 Transcript page 1-28, line 17. 3 One ground relied on a defective notice to leave dated 18 September 2018 (this was not relied on by the Department). Another said that the Department had made money claims when no money was owing (but this was not the case – these were only examples in the tribunal’s application form). 4 These grounds were that the Adjudicator had no ‘authority’ to make the order and it was made contrary to sections 290 and 329 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) in some unspecified way. -- 3 of 13 -- 4 (i) an affidavit was served at the hearing rather than in advance; this contained information given by a neighbour that the tenant was not living at the premises; (ii) the Adjudicator gave the tenant no fair opportunity to respond to the matters in the affidavit; (iii) the Adjudicator was not interested in the tenant’s evidence that the electricity had never been disconnected and that she continued to reside at the premises. (f) Generally it is said that the Adjudicator failed to enhance the accountability of public administration as required by section 3(e), and failed to deal with the application in a way which was fair and just or ensure the tenant’s understanding as required by sections 28 and 29 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). Since no further particulars are given of this ground, it would appear to be a summary of the effect of the above grounds. Directions were given for submissions in the appeal. The tenant’s submissions made by her solicitors, were late. This meant that the Department’s submissions were provided before the tenant’s submissions and not the other way round as provided for in the directions. I am satisfied however that it will not be unfair to the Department to take into account all the submissions because the later submissions made on the tenant’s behalf are largely a repeat of earlier submissions. It is convenient to take the grounds of appeal in a slightly different order than as set out above. Ground (a) – notice to leave one day short This is a point made on appeal for the first time. The tenant did not contend at the hearing before the Adjudicator that the notice to leave was defective by being one day short. Despite this, there are mandatory requirements in sections 326 and 329 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘RTRAA’) about the period of notice required in a notice to leave, so this is a matter of substance. This notice to leave was on the grounds of ‘ending of housing assistance’. Section 329(2)(i) governs such notices and it provides that the ‘the handover day for a notice to leave given by the lessor on that ground must not be earlier than ... 1 month after the notice is given’. The tribunal has no power to reduce the period of notice which is required. This is despite section 349 which permits the tribunal to make a termination order in all the circumstances of the case, even though the notice to leave contains a defect. This is because the words ‘must not be earlier than’ in section 329(2) indicate the mandatory nature of the provision. Since this is a matter of substance and not merely a matter of procedure, it is the practice of Adjudicators to take care to ensure that the correct period of notice has been given in such notices. Put simply, if the period of notice to leave is too short, the tribunal is unable to make a termination order on the basis of the notice. In turn, this means that such an issue can be raised on appeal even if not expressly raised at the hearing before the Adjudicator. -- 4 of 13 -- 5 Here the notice to leave was given on 4 October 2018 and required the tenant to handover the premises by midnight on 3 November 2018. The day when the notice is given should not be counted. That is because of the words in section 329(2)(i) ‘1 month after the notice is given’, the word ‘after’ indicating that the month starts immediately after midnight at the end of the day in which it is given. This accords with the usual common law rules,5 but also appears to accord with the provisions of section 38(1) of the Acts Interpretation Act 1954 (Qld). On the face of it therefore, the notice was one day short because the period of one month started from the beginning of 5 October 2018, and would therefore end at midnight on 4 November 2018, but the notice required handover by midnight on 3 November 2018. However, the handover day in the notice was a Saturday. The question then arises whether section 38(2) of the Acts Interpretation Act 1954 (Qld) applies to the notice to extend the period of notice given. Section 38 of the Acts Interpretation Act 1954 (Qld) reads:- 38 Reckoning of time (1) If a period beginning on a given day, act or event is provided or allowed for a purpose by an Act, the period is to be calculated by excluding the day, or the day of the act or event, and— (a) if the period is expressed to be a specified number of clear days or at least a specified number of days—by excluding the day on which the purpose is to be fulfilled; and (b) in any other case—by including the day on which the purpose is to be fulfilled. (2) If the time, or last day of a period, calculated forwards that is provided or allowed by an Act for doing anything falls on an excluded day, the time, or last day, is taken to fall on the next day later that is not an excluded day. (3) If the time, or earliest day of a period, calculated backwards that is provided or allowed by an Act for doing anything falls on an excluded day, the time, or earliest day, is taken to fall on the next day earlier that is not an excluded day. (4) If no time is provided or allowed for doing anything, the thing is to be done as soon as possible, and as often as the relevant occasion happens. (5) In this section— excluded day— (a) for filing or registering a document—means a day on which the office is closed where the filing or registration must or may be done; or 5 There are two applicable common law rules: firstly that usually when computing a period of time from a given date or the happening of an event, the period will commence at the end of the day of that date or event, and secondly that fractions of a day should be ignored – described with supporting authorities in Halsbury’s Laws of Australia paragraphs [410-130] and [410-165] respectively. -- 5 of 13 -- 6 (b) otherwise—means a day that is not a business day in the place in which the thing must or may be done. Business day is defined in Schedule 1 of the Acts Interpretation Act 1954 (Qld):- business day means a day that is not— (a) a Saturday or Sunday; or (b) a public holiday, special holiday or bank holiday in the place in which any relevant act is to be or may be done. Section 38(2) might be capable of extending the requirement to leave in the notice to leave to the next business day in this case to midnight on Monday 5 November 2018. If so, on that basis the notice would be valid after all. However, it might be argued that the requirement for the tenant to handover the premises under the notice to leave was a requirement of the notice to leave and was not a requirement which was something ‘provided or allowed by an Act’ within the terms of section 38(2). If this argument is right, then section 38(2) would not have the effect of extending the requirement to leave in the notice to leave to the next business day, and it would not be a valid notice to leave. It is clear that section 38(2) applies to the time for doing anything required by an Act for example where an Act imposes a time limit for the giving of documents or for the filing of an application to start proceedings or to appeal. But does it apply to a time for doing anything required by a notice where the notice is served as permitted by an Act? The answer to this probably turns on the specific statutory provisions being considered. Section 290 of the RTRAA provides that where the tenant occupies premises under an affordable housing scheme as here, and the tenant ceases to be eligible under the scheme to receive assistance, the lessor may give a notice to leave for ending of housing assistance. The form and content of such a notice is prescribed. Section 326 requires such a notice to be in the approved form, to be signed by or for the lessor, to identify the premises, and to state the ground on which it is given with particulars or to state that it is given without ground. It is also required to give the prescribed information to the tenant about failure to comply. In particular for our purposes, the notice must require the tenant to hand over vacant possession of the premises to the lessor on the day stated in the notice. Section 329(2)(i) of the RTRAA specifies the minimum period of notice to be given in such a notice. It can be seen that section 38(1) of the Acts Interpretation Act 1954 (Qld) definitely applies to a notice to leave because such a notice will inevitably refer to a period of time. The period of time will ‘begin on a given day’ that is when the notice is given. And the giving of the notice is allowed for a purpose of the RTRAA, the purpose being to require the tenant to leave at the end of the notice period. -- 6 of 13 -- 7 Although it is not quite so easy to fit the statutory provisions of the RTRAA into section 38(2), this can be done by considering that a notice to leave is allowed by the RTRAA. It will inevitably contain a period of time and indeed is required to do so. Hence the period of time is allowed by the RTRAA. It seems very likely that the objective intention of the legislature was that section 38(2) should apply to a notice to leave as well as section 38(1). Any uncertainty about this arises from the words used in section 38(2), but there is nothing else nor any good reason having regard to the purpose of the RTRAA to apply the two subsections any differently to a notice to leave. On this basis, section 38(2) will extend the handover day of a notice to leave if the handover falls on an excluded day. This means that if the notice to leave relied on here was given on 4 October 2018, it did give the requisite period of notice. The evidence about when the notice to leave was given to the tenant was contained in the affidavit which was handed up to the Adjudicator at the hearing. It said that it was ‘issued on’ 4 October 2018. It said that it was hand delivered to the property but did not say when this was done.6 An affidavit of service of the notice to leave was filed with the application. That contained inconsistent statements. Although it stated that the tenant was served on 4 October 2018 with the notice, it variously said it was given to her personally (section B1), given under section 109X of the Corporations Act 2001 (Cth) (section B2) and given by post (section B3). Since the Department was saying that there had been no contact with the tenant it is difficult to see how personal service could have been effected. On paper therefore, there is some doubt whether the notice to leave was given to the tenant on 4 October 2018 or sometime later. At the hearing, any doubt about the giving of the notice to leave was clarified by the representative of the tenant who said that all paperwork was left in the letterbox.7 From this, it does appear likely that the notice to leave was given to the tenant on 4 October 2018. In his reasons, the Adjudicator said he was satisfied that the notice to leave had been ‘properly issued’.8 The Adjudicator did not confirm satisfaction that it had been given on 4 October 2018, nor analyse the adjustment of the precise handover day by section 38(2) of the Acts Interpretation Act 1954 (Qld) as I have done. Bearing in mind on the face of it the notice was one day short it was probably good practice to have considered and explained the matter but it is not surprising the Adjudicator omitted to do this on the day bearing in mind it was not expressly put in issue. As a point for this appeal, it is not successful for the reasons given above. Ground (b) – various points about the form and content of an affidavit The points made are all about an affidavit of service made on 12 November 2018 that was filed by the Department with the application for termination. That affidavit of service purported to prove the service of the notice to leave as referred to above. It is said that the jurat was defective, the affidavit referred to something that happened two days later as if it had happened in the past, that fields were incorrectly completed and were internally inconsistent, and the wrong postcode for the premises was given. 6 Paragraph 11. 7 Transcript page 1-17, line 22, also page 1-24, line 5. 8 Transcript page 1-38, line 31. -- 7 of 13 -- 8 I do not agree that the jurat was defective: the affidavit used the tribunal’s own approved form for the purpose which had a standard form of jurat. I do not agree that the affidavit referred to something that happened two days later as if it had happened in the past: I believe this is a misunderstanding of what the affidavit said. It is true that there was an internal inconsistency as explained above, and that the postcode was wrong. However, the maker of the affidavit was in attendance at the hearing and so any discrepancies in the affidavit could be resolved. This is certainly not a valid point to be made in this appeal. Ground (e) - procedural unfairness It is true that the affidavit relied on by the Department at the hearing was handed to the Adjudicator and to the tenant and her representative at the commencement of the hearing, and they had not previously seen it. The affidavit was made by a client service manager of the Department. It described the premises but stated that the Department had become aware that the tenant was not living there. This, it was said, was based on 14 visits to the property, four letters sent to the property, telephone calls, text messages, emails and urgent calling cards, none of which were responded to. In the visits to the property it was found that the yard was overgrown, windows and doors were covered in cobwebs and the letterbox was not emptied. It was said that there was no power connected to the property. It was said that the tenant had a different address registered with Centrelink. Neighbours said that the tenant kept the unit to house her cats, and she visited there twice a week to feed them but only spent 30 minutes there at a time. Since proceedings were issued, the Department had made another five home visits to the premises but the situation remained the same. There were also photographs of the property and the electricity meter handed up at the hearing which the tenant and her representative had not seen before, but it is not said in this appeal that there was any prejudice arising from this. When assessing whether the tenant and her representative were disadvantaged by not previously seeing the affidavit, it is notable that they had to read the affidavit and consider the photographs while the hearing was continuing. At one point, when asked by the Adjudicator whether she had any more to say, the representative said that she had not yet finished reading the affidavit.9 It is clear from the remainder of the transcript after that point however, that the tenant’s representative was able to go through all the points in the affidavit, and to deal with them adequately. The extent of any disadvantage to the tenant is informed by pre-hearing communications. The information about this appears from documents provided to the Adjudicator at the hearing by the tenant. From this is can be seen that prior to the hearing the Department had communicated with the tenant giving details of the problem she faced.10 These documents show that the tenant and her solicitors were aware that the Department was saying that (a) the tenant was no longer living at the premises and for that reason it had decided to end housing assistance; (b) Centrelink had a different address for the tenant; and (c) the property had cobwebs and was unclean, and the 9 Transcript page 1-15, line 46. 10 This appears from a written statement submitted to the tribunal by the tenant which attached three letters written by her solicitors to the Department prior to the hearing, dated 27 September, 22 October 2018 and 26 November 2018. The Adjudicator marked this material ‘Ex 3 – Resp’. -- 8 of 13 -- 9 letter boxes were not being emptied and (d) she had been given a valid notice to leave dated 4 October 2018. The documents also show that the tenant provided a recent electricity account for $199.44 covering the period 26 June to 18 September 2018 to the Department tending to show that she lived at the premises. The new evidence in the affidavit was therefore limited to the attempts to contact the tenant without response, what was being said by the neighbours, and the Department’s contention that the electricity was disconnected. At one point in the hearing, the tenant’s representative asked for an adjournment. The grounds were that ‘so that we can do this again’. It was clear however, that the reason for this request was that the tenant wanted to show that the photographs were ‘fabricated’ and depicted the wrong meters for the premises.11 The Adjudicator considered the application for an adjournment but refused it with brief reasons.12 Although it was most unfortunate that the Department did not provide to the tenant or her representative its affidavit or photographic evidence before the hearing, I do not think it was procedurally unfair of the Adjudicator to require the matter to proceed on the day of the hearing. This is because the tenant largely had prior knowledge of the Department’s case as demonstrated by the pre-hearing correspondence. Provided time was given to read and understand the affidavit, which I am satisfied was given, the new matters in the affidavit could be dealt with by the tenant in her evidence. As for the alleged disconnection of the electricity, she did have the last bill which she put before the Adjudicator. The desire of the tenant’s representative to be able to have time to prove that the meters in the photographs were the wrong ones, would not have worked (we know that they were the correct meters). In the circumstances there was no procedural unfairness and this ground of appeal fails. Grounds (c) and (d) – points about the ending of housing assistance decision I shall take these grounds together because they are a challenge to the Department’s evidence and since the Adjudicator accepted that evidence, they are a challenge to his findings. In order properly to decide this appeal, I need to consider whether this appeal can properly be brought so as to have the effect of impugning the Department’s decision to end housing assistance or whether it must be limited to ensure that the tribunal correctly exercised its discretion whether or not to terminate the tenancy, given the fact of the Department’s decision. In the affidavit handed to the Adjudicator at the hearing, and in the Department’s submissions for this appeal, it is explained that if the Department’s officers believe that a tenant is away from the premises for more than eight weeks without approval, then it will commence an investigation under the Fair Absence policy and reassess the tenant’s ongoing need for social housing assistance. During this process the tenant is given an opportunity to contact the Department and provide further information. 11 Transcript page 1-23, line 9. 12 Transcript page 1-25, line 20. -- 9 of 13 -- 10 Since that did not happen, and since the Department’s officers believed that the tenant was not residing at the premises, the Department decided to end housing assistance. When housing assistance ends in this way the Department is able to give the tenant a notice to leave under section 290 of the RTRAA. Such a notice to leave is called a notice to leave for ‘ending of housing assistance’. If the tenant does not leave on the handover day in the notice to leave, then the Department can apply to the tribunal for a termination order. Section 340 of the RTRAA enables the tribunal to make the order. It reads in subsection (2):- (2) The tribunal may make the order if it is satisfied the lessor has established the ground of the application and notice to leave. The ground of the application in this subsection is a reference to a failure to leave after the ending of housing assistance. Hence in these types of applications, the Department merely has to prove that housing assistance has ended, and that it served a valid notice to leave, and the tenant did not leave, for section 340(2) to be engaged. It follows that the tribunal does not have to be satisfied on these types of applications that the Department was right to end housing assistance. This means also that the tribunal would not conduct a review of the Department’s decision.13 This is different therefore from the approach taken by the tribunal in the case of termination applications brought by the Department for damage or injury (under section 296A) or for objectionable behaviour (under section 297A). In those types of applications the Department must prove the behaviour complained of actually happened. This is because the ‘ground of the application’ under the relevant statutory provisions is the behaviour concerned.14 One reason why the statutory provisions do not permit or require the tribunal to conduct a review of the Department’s decision to end housing assistance is that there is an internal review process available under section 65 of the Housing Act 2003 (Qld). That permits a tenant to apply to the Chief Executive of the Department for a review of a decision about that person’s eligibility for a social housing service within 28 days of notice of the decision or becoming aware of the decision.15 It would also appear that there is another review available, that is under the Judicial Review Act 1991 (Qld) by application to the Supreme Court. This is not to say that the tribunal must terminate the tenancy in every case where the Department has ended housing assistance and given a valid notice to leave, and where the tenant has failed to leave. The word ‘may’ in section 340(2) denotes some discretion. There is little authority as to when that discretion may be exercised in the tenant’s favour. The only statutory guidance is section 349A of the RTRAA which provides that the tribunal must not refuse to terminate the tenancy merely because the tenant is a social housing tenant. 13 That this is the correct approach to these types of applications was the view of Justice Carmody, expressed obiter in Simonova v Department of Housing and Public Works [2018] QCATA 33, [67]. 14 This can be seen from the terms of sections 344 and 345A respectively. 15 The period of 28 days can be enlarged under section 65(4). -- 10 of 13 -- 11 At the hearing the tenant protested that she was still living at the property, and in particular she challenged that any proper conclusion could be reached from the condition of the property and the information from neighbours, and disputed that the electricity was disconnected and that Centrelink had the wrong address. In this appeal, the tenant attempts to say that the Adjudicator was wrong to find that she had largely been absent from the premises, but as can be seen from the above this matter can only go to the tribunal’s residuary discretion under section 340(2). Of these issues in dispute at the hearing, there could well be an explanation for the condition of the property and information from neighbours consistent with the tenant’s continuing living at the premises. The question of the electricity and the Centrelink address would have been of greater importance. The electricity was important because if it were true that it was disconnected, then it would be very unlikely that the tenant was living at the premises and it would also be completely contrary to the evidence she gave at the hearing that in the year before the hearing she only spent a couple of nights away.16 The Centrelink address was important because if she had given Centrelink a different address this would also show she was not living there and would raise into question whether she was in need of social housing. I have concerns however, about whether these two matters were dealt with properly at the hearing. With respect to the electricity, at the hearing the housing officer gave evidence that there was no electricity connected to the property.17 When asked by the Adjudicator how she knew that this was the case, the officer said it was because ‘there was no movement’.18 This was a reference to the photographs of the meters taken on 18 October and 7 November 2018. There were two meters for the electricity servicing the premises, one meter is displayed on the left hand side of the photographs and one on the right hand side.19 A close examination of the photographs show that the Department’s evidence about this was incorrect. The meters were both of the mechanical dial type and so the amount of electricity used appears from the dials. The dials on the meter on the right of the photograph had not moved very much, but the meter on the left had moved by just under 100 kilowatt-hours over the three week period between the two photographs.20 It is clear from this, that the electricity was not disconnected as was claimed by the Department. It seems possible that there was a mistake made when looking at the photographs. Underneath the dials for each meter there is a number, which looks a bit like a digital 16 Transcript page 1-20 line 21. 17 Paragraph 7 of the affidavit of 6 December 2018, and oral evidence at page 1-9 line 29 of the transcript. 18 Transcript page 1-9 line 33. 19 That both meters served the premises was confirmed by the housing officer at the hearing at page 1- 10 line 11 of the transcript, and it is confirmed by an email from the electricity provider dated 17 December 2018 which was submitted to the tribunal in the tenant’s application to reopen. 20 Between 18 October and 7 November 2018 the reading changed from 62633 to 62732. -- 11 of 13 -- 12 meter display. But in fact it is the meter number.21 Since for each meter this number did not change, it might at first glance appear from the photograph that no electricity had been used at all. The tenant had also provided the electricity account covering the period 26 June to 18 September 2018 for $199.44, which also belied the evidence given by the Department about the tenant not living at the premises over the period when the Department was making home visits and trying to contact her.22 When these matters were discussed at the hearing, the Adjudicator pointed out to the tenant’s representative what he saw as a discrepancy between the photographs of the meters and the earlier electricity bill provided by the tenant. He said:-23 Well, these mater readings would indicate that between the 18 th of October and the 7th November, there was not the slightest little bit of electricity used. The only answer the tenant’s representative could give to this after being pressed by the Adjudicator, was that the meters in the photographs could not be the meters for the premises. The Adjudicator asked a similar question directly to the tenant who answered in the same way.24 The Adjudicator made the following finding in his reasons:- The photographs as produced by the applicant in the matter show a number of relevant matters which pertain to the department’s decision to end financial assistance in respect of the matter. In particular ... the two meters in the photograph dated the 7 th November 2018 and the two meters as photographed on the 18th October 2018 clearly show that the meter reading has remained the same between the 18th of October 2018 and the 7th November 2018. The Adjudicator’s finding here was flatly in contradiction to the tenant’s evidence that she had not spent more than two nights away from the premises all year and it is clear from the Adjudicator’s comments that the tenant had been absent from the premises for a much greater period of time and for much greater absences than she had admitted at the hearing, that he must have concluded that she was lying about this. His finding about the electricity usage therefore undermined the whole of her defence to the termination application. On the question of the address held for the tenant by Centrelink, in the tenant’s application to reopen, she provided a letter from Centrelink dated 8 November 2018 correctly addressed to her at the premises. The Department’s evidence about the Centrelink address in its affidavit was that checks were done on 10 July and 4 September 2018 and the address check ‘verified (that the) street address, suburb and postcode’ did not match the actual address of the premises.25 The meaning and significance of this was not examined at the hearing. It is agreed between the two sides that the street address of the premises changed from 26 to 30 due to development in the street. In their submissions on appeal, the Department says this happened in 21 In this case 517192 and 517190 as is confirmed by an email of 17 December 2018 from the electricity provider which was in the documents attached to the tenant’s application for reopening. 22 Between 11 January 2018 and 12 September 2018 – paragraph 7 of the affidavit of 6 December 2018. 23 Transcript page 1-13 line 18. 24 Transcript page 1-21 line 9. 25 Paragraph 8. -- 12 of 13 -- 13 2012. The tenant says that this explains why the address check was negative. The Department did not produce any written record of the address check. In the circumstances it seems at least possible that there is an explanation for the discrepancy. Whilst the Centrelink address discrepancy might have influenced the Department in its decision whether or not to end housing assistance for this tenant, it did not seem to feature at all in the mind of the Adjudicator in his finding that the tenant had largely been absent from the premises, although he did say that he preferred to the evidence of the Department where it conflicted with that of the tenant, so it is possible he was influenced by it. Overall, I am concerned by the issues raised by this ground of appeal. Conclusions in the appeal Although the role of the tribunal is not to review the decision of the Department to end housing assistance, the tribunal does retain some discretion as to whether or not to make a termination order on the grounds of the ending of housing assistance. Here there was a fundamental flaw in the facts presented to the Adjudicator in the Department’s evidence, which probably influenced the Adjudicator to reject the tenant’s evidence that she had not been absent from the premises over the period concerned. In the circumstances, it seems inevitable that the Adjudicator misdirected himself when applying the residuary discretion under section 340(2) of the RTRAA as to whether or not to make the termination order. Leave to appeal must be given on this basis. I must now consider how to resolve the appeal. As an appeal on a question of fact or mixed law and fact under section 147 of the Queensland Civil and Administrative Tribunal Act 2019 (Qld) (‘QCAT Act’), it should be dealt with by a rehearing in the Appeal Tribunal. In that rehearing I consider that there was a mistake of fact which caused the Adjudicator to misdirect himself when applying the residuary discretion under section 340(2) of the RTRAA as to whether or not to make the termination order. In the circumstances, it is right to set aside the termination order. The Department has however, decided to end housing assistance and it served a valid notice to leave, and the tenant failed to leave on the handover day. Having set aside the termination order, there is a valid application for termination currently before the tribunal. It is difficult for the Appeal Tribunal now to exercise the discretion under section 340(2) because of the time which has passed. I suspect also that the Department may well wish to reconsider its position in this particular matter and possibly make further enquiries to enable it properly to do so. In the circumstances I think the better course of action is to return the matter to the tribunal for reconsideration, and that can be done under recent amendments to the appeal provisions in the QCAT Act.26 26 Section 147(3)(c). -- 13 of 13 --