Chapman v State of Queensland through the Department of Communities (Housing and Homelessness Service) [2011] QCATA 242

CITATION: Chapman v State of Queensland through the Department of Communities (Housing and Homelessness Service) [2011] QCATA 242 PARTIES: Ms Helen Chapman (Applicant/Appellant) v State of Queensland through the Department of Communities (Housing and Homelessness Service) (Respondent) APPLICATION NUMBER: APL181-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President DELIVERED ON: 6 September 2011 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE –TENANCY – PROCEDURAL FAIRNESS – where the applicant lived in a unit as a tenant of the Department – where the applicant’s daughter caused disruption at the unit complex – where the Department applied to the Tribunal for an order terminating Ms Chapman’s tenancy for objectionable behaviour – where the Magistrate adjourned the matter so that the applicant could obtain legal advice as the applicant could not read or write – where the applicant sought a further adjournment – where the Magistrate refused the further adjournment and ordered that the tenancy agreement be terminated – whether the refusal to grant a further adjournment amounted to a lack of procedural fairness – whether grounds for -- 1 of 5 -- 2 leave to appeal Queensland Civil and Administrative Tribunal Act 2009, s 142 Residential Tenancies and Rooming Accommodation Act 2008, s 297 Cachia v Grech [2009] NSWCA 232, cited Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, cited McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, cited QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41, cited APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] Ms Chapman lived in a unit as a tenant of the Department. In April 2011, Ms Chapman’s daughter, who was living with her, made threats against neighbours and was abusive towards them. Queensland Police officers were called and Ms Chapman’s daughter was removed from the complex. [2] The Department received information which indicated that this incident was the latest in a series of events alleged to involve unacceptable behaviour by Ms Chapman, and her daughter. It applied to the Tribunal in its Minor Civil Disputes jurisdiction for an order terminating Ms Chapman’s tenancy for objectionable behaviour.1 [3] The application came before a Magistrate, sitting as a QCAT Ordinary Member, on 16 May 2011. The learned Magistrate, after learning that Ms Chapman could not read or write, indicated he would allow her to be represented by a person from the Tenant Advice and Advocacy Service but then, after observing that he must ‘… make sure that Mrs Chapman gets natural justice’, adjourned the hearing to 18 May 2011 so that she could obtain legal advice. [4] On 17 May 2011, Tenant Advisory and Advocacy Service (Qld) (TAAS) sent a facsimile to the Tribunal which stated, in part: Our office then contacted Qpilch today and was able to obtain a telephone appointment for Tuesday 24 May at 3pm for legal advice. Unfortunately given the short time frames they were unable to provide any solid assistance today however Qpilch sound confident that they will be able to assist Helen by referring to a local Qpilch member. … 1 Residential Tenancies and Rooming Accommodation Act 2008, s 297. -- 2 of 5 -- 3 Therefore we are asking if it is at all possible to adjourn the matter so Helen can seek the appropriate advice and representation. … We apologise in advance for not being present tomorrow, primarily due to limited resources in our office. [5] On 18 May 2011, Ms Chapman asked for an adjournment. The Magistrate had not seen the facsimile from TAAS, and was not familiar with QPILCH.2 The learned Magistrate refused a further adjournment. He ordered that the tenancy agreement be terminated as at noon on 18 May 2011 and that a warrant for possession issue. [6] Ms Chapman seeks leave to appeal the Magistrate’s decision because he continued with the hearing, despite her application for adjournment and despite the fact that Ms Chapman was not represented. Because this is an appeal from the Tribunal in its Minor Civil Disputes jurisdiction, leave is necessary.3 [7] 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?4 Is there a reasonable prospect that the applicant will obtain substantive relief?5 Is leave necessary to correct a substantial injustice to the applicant caused by some error?6 Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?7 [8] Read in isolation, the transcript of 18 May 2011 suggests that the learned Magistrate may not have ensured that Ms Chapman received a fair hearing. He knew that she was unable to read or write. He had already granted an adjournment so that she could obtain advice, although the adjournment was for a very short time. [9] Ms Chapman told the Magistrate that she had sought advice, and that she had been told to ask for a further adjournment.8 It appears that the learned Magistrate refused the adjournment because he understood that Ms Chapman wanted representation through Legal Aid, even though Legal Aid did not offer assistance in these types of matters.9 The learned Magistrate was not aware of QPILCH, and he did not know that QPILCH might be able to represent Ms Chapman at the hearing. [10] The transcript of 16 May 2011 puts the learned Magistrate’s decision to proceed in context: he was acutely aware of the need to provide natural 2 Transcript 18 May 2011: page 1, line 43. 3 QCAT Act, s 142(3)(a)(i). 4 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 5 Cachia v Grech [2009] NSWCA 232 at 2. 6 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 7 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. 8 Transcript 18 May 2011: page 1, lines 40-41. 9 Transcript 18 May 2011: page 2, lines 29-33. -- 3 of 5 -- 4 justice;10 Ms Chapman had the assistance of TAAS;11 and, she had already contacted a lawyer, who could not attend on 16 May 2011.12 The Magistrate advised Ms Chapman that he did not think Legal Aid would be able to assist her.13 His decision on 16 May to allow only a short adjournment for two days was deliberate14 because of the serious nature of the conduct alleged against her, and her daughter, and the fact that Ms Chapman should have sought advice ‘a long time ago’. [11] Ms Chapman knew, or should have known, that the learned Magistrate would proceed with the hearing on 18 May 2011, whether or not she was represented. She had the benefit of legal advice prior to the hearing on 16 May 2011, and she was assisted by TAAS at that hearing. [12] In all the circumstances, I am satisfied that the learned Magistrate did give Ms Chapman a reasonable opportunity to be represented at the hearing on 18 May 2011 and, therefore, to ensure procedural fairness. [13] The transcript of the hearing on 18 May shows that it took over two hours. Ms Chapman was allowed to have her daughter (who was one of her witnesses) present in the hearing room to make notes, and assist her. Ms Chapman questioned the Department’s witnesses and the Magistrate also asked questions which were obviously intended to ensure she put her case to them. She gave evidence herself, as did her daughter and another witness she called. [14] The learned Magistrate then gave reasons for his decision which reflected the evidence, and the weight of the evidence, he had heard. [15] It is compelling, from the transcript, that despite Ms Chapman’s inability to read or write, she was able to present her case; and, that the learned Magistrate was at pains to ensure she had a fair opportunity to do so. [16] As Mason J (as he then was) observed in Kioa v West,15 procedural fairness is a term which conveys the notion of a flexible obligation to adopt fair procedures which are appropriate, and adapted to, the circumstances of the particular case. Here, the allegations against the tenant were serious and, if proven, suggested the need for urgency in dealing with them. [17] The learned Magistrate was aware of the difficulty facing the tenant but, also, properly alive to the need to balance his obligations to ensure she was afforded natural justice against the implications of the serious case against her. His conduct in allowing an adjournment and, then, the manner in which he presided at the hearing show his concern to ensure that the tenant got a fair hearing. 10 Transcript 16 May 2011: page 8, lines 21-22; page 9, lines 21-22. 11 Transcript 16 May 2011: page 7, lines 5-29. 12 Transcript 16 May 2011: page 8, lines 36-46. 13 Transcript 16 May 2011: page 9, line 17. 14 Transcript 16 May 2011: page 10, line 41; page 11, lines 3-5 and 36-38. 15 (1985) 159 CLR 550 at 584-5. -- 4 of 5 -- 5 [18] It cannot be said that what occurred, in these circumstances, offended principles of natural justice. Indeed, the learned Magistrate can fairly be said to have carefully, and thoughtfully, achieved the proper measure of procedural fairness, in challenging circumstances. [19] It is to be noted, too, that Ms Chapman no longer resides in the unit. Despite the submissions from TAAS, she has been able to rent accommodation privately. There can be no useful purpose in allowing leave to appeal because there is no prospect that Ms Chapman will now obtain any substantive relief from the proceeding. [20] In any event, there is no question of general importance that should be determined by the appeal tribunal; there is no reasonably arguable case that the learned Magistrate was in error; and, there is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused. -- 5 of 5 --