Dalco v State of Queensland through the Department of Housing and Public Works [2014] QCATA 133

CITATION: Dalco v State of Queensland through the Department of Housing and Public Works [2014] QCATA 133 PARTIES: Rachel Louise Dalco (Applicant/Appellant) v State of Queensland through the Department of Housing and Public Works (Respondent) APPLICATION NUMBER: APL400 -13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Thomas, President DELIVERED ON: 26 May 2014 DELIVERED AT: Brisbane ORDER MADE: The application for leave to appeal is refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – RESIDENTIAL TENANCY DISPUTE – where tenant did not attend hearing – where hearing previously adjourned to allow tenant to obtain witness statements – where termination on grounds of objectionable behaviour – where tenant denied objectionable behaviour – where independent witness statements provided by department – whether grounds for leave to appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 142(3)(a)(i) Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 345A Chambers v Jobling (1986) 7 NSWLR 1, applied Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, cited Dearman v Dearman (1908) 7 CLR 549, applied -- 1 of 3 -- 2 Fox v Percy (2003) 214 CLR 1, applied Pickering v McArthur [2005] QCA 294, applied 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 [1] The State of Queensland through the Department of Housing and Public Works filed an application to terminate Ms Dalco’s tenancy on the grounds of objectionable behaviour. The first hearing was adjourned so that Ms Dalco could get witness statements. She did not appear at the resumed hearing. A Magistrate, sitting as a member of the tribunal, considered the Department’s evidence and terminated Ms Dalco’s tenancy. [2] Ms Dalco filed an application to reopen the proceeding, however that application was dismissed. She now wants to appeal the learned Magistrate’s decision on the same ground as the reopening: that she had a reasonable excuse for not attending the hearing. Ms Dalco also challenges the Department’s evidence of objectionable behaviour. [3] Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.1 The principles the appeal tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as his Honour then was) in Pickering v McArthur: There are numerous authorities, in varying language but with unvarying emphasis, that leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.2 [4] The appeal in this case is under s 147 of the QCAT Act. It is an appeal by rehearing. An appeal by way of rehearing is based on the record of the proceedings before the Member. [5] The appeals tribunal will accept additional evidence if it was not reasonably available at the time the proceeding was heard and determined. Where a party seeks to rely on such evidence, the party must satisfy three tests: with reasonable diligence, could the evidence have been obtained for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?3 1 QCAT Act s 142(3)(a)(i). 2 [2005] QCA 294 at [3]. 3 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408. -- 2 of 3 -- 3 [6] The tribunal adjourned the hearing so that Ms Dalco could get witness statements. She did not obtain any evidence from independent witnesses. No such evidence has been field to date. Ms Dalco has sworn a statement. Nothing further has been provided. For example, she has not provided a statement from the RSPCA about her dogs, a copy of the Department’s inspection report, or the statements from the witnesses who say she was asleep at critical times. In light of the material filed by the Department, it is unlikely that Ms Dalco’s statement would have had a significant impact on the result. The relevant test is not satisfied. [7] In deciding if objectionable behaviour justifies termination, the tribunal must consider any serious or adverse effects on neighbours, including whether neighbours are likely to be subjected to objectionable behaviour if the agreement is not terminated.4 [8] The learned Magistrate considered three affidavits in support of the Department’s application. An independent witness has sworn to the events from 16 June 2013 to 21 August 2013. Ms Dalco says the witness is mistaken but his statement clearly identified the residents of Ms Dalco’s tenancy as causing the problem. Ms Parsons swore that Edmonton Police have confirmed each of the Police attendances at Ms Dalco’s tenancy. Even though Ms Dalco was not the person whose behaviour is objectionable, she is responsible for the acts of people who visit her.5 She has breached that obligation and it was open for the learned Magistrate to terminate her tenancy. [9] The appeal tribunal will not usually disturb findings of fact on appeal if it considers the conclusions of the decision maker below were able to be made on the evidence before decision maker,6 however may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.7 [10] There is nothing in the transcript to persuade me that the learned Magistrate should have taken a different view of the facts. The findings made by the learned Magistrate were clearly able to be made on the evidence before her. There is no reasonably arguable case that the learned Magistrate was in error. Leave to appeal should be refused. 4 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 345A(3)(a). 5 Clause 19(2)(d) of the tenancy agreement. 6 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125- 126. 7 Chambers v Jobling (1986) 7 NSWLR 1 at 10. -- 3 of 3 --