Cutbush v Team Maree Property Service (No 2) [2010] QCATA 20

CITATION: Cutbush v Team Maree Property Service [2010] QCATA 20 PARTIES: Paul Cutbush (Applicant) v Team Maree Property Services (Respondent) APPLICATION NUMBER: APL031-10 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President DELIVERED ON: 7 June 2010 DELIVERED AT: Brisbane ORDERS MADE: 1. Appeal allowed 2. Set aside the orders made by the QCAT adjudicator on 4 March 2010 and order, instead, that the respondent’s application to QCAT in Minor Civil Dispute matter no. Brisbane 923/10 (Beaudesert 017/10) for a termination order be dismissed CATCHWORDS : RESIDENTIAL TENANCIES – TERMINATION OF TENANCY – Residential Tenancies and Rooming Accommodation Act 2008, s 297 – MEANING AND EFFECT – where tenant photographed neighbours – whether tenant’s behaviour was objectionable pursuant to s 297 – whether behaviour warranted termination order Residential Tenancies and Rooming Accommodation Act 2008, s 297 Queensland Civil and Administrative Tribunal Act 2009, s 142(3) Hope v Bathurst City Council (1980) 144 CLR 1, applied -- 1 of 6 -- 2 Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748, cited APPEARANCES and REPRESENTATION (if any): APPLICANT : RESPONDENT: REASONS FOR DECISION [1] This appeal arises out of the tenancy of a residential property at 32 Stringybark Road Tamborine. The appellant Mr Cutbush and his wife are the tenants and the respondent, Team Maree Property Services, was the agent of the owner. In fact the operator of that business, Ms Maree Leach, is also the owner of the property. [2] In February 2010 Ms Leach brought proceedings in QCAT seeking an order that the tenancy be terminated on the grounds of the tenants’ alleged objectionable behaviour. The matter was heard by a QCAT adjudicator on 4 March 2010 who found that Mr Cutbush had been guilty of objectionable behaviour in terms of s 297 of the Residential Tenancies and Rooming Accommodation Act 2008 (RTRA) and ordered that the tenancy be terminated from 31 March 2010, and that a warrant for possession issue on 1 April to expire on 14 April. [3] Mr Cutbush sought leave to appeal that decision, and for a stay of its operation. A stay was ordered on 17 March 2010. On 29 April Mr Cutbush was granted leave to appeal, and the stay was extended until its determination. [4] Each party is filed further lengthy submissions. Mr Cutbush’s occupy 36 pages, with a number of annexures. They were received on 20 May 2010. On 21 May another large bundle of submissions, with copies of statements and emails, was received from him. Ms Leach has also delivered lengthy submissions, with attachments. [5] One of the attachments to Mr Cutbush’s submissions requires particular mention. It is an email addressed to the President of QCAT by a person styled as a General Manager in a Queensland state government department, and says that Mr Cutbush is employed as Director in that department and that it ‘…may be relevant to the matter…for the Tribunal to note that Mr Cutbush has and continues to perform his Departmental duties diligently… (and)…continues to hold a high standing by the Department’. [6] The email can have no purpose save as an attempt to influence this Appeal Tribunal’s decision. It is a matter of grave concern that persons (including Mr Cutbush) holding what appear to be senior positions in a government department should apparently fail to understand how -- 2 of 6 -- 3 improper that is. The communication is also, of course, entirely irrelevant. It must be ignored in the appeal process. [7] S 297 of the RTRA (‘Application for termination for tenant’s objectionable behaviour’) allows a lessor to apply to QCAT for a termination order because the tenant has harassed, intimidated, or verbally abused the lessor or lessors agent or a person occupying or allowed on premises nearby, or is causing or has caused a serious nuisance to persons occupying nearby premises. [8] As explained in the decision granting Mr Cutbush leave to appeal1 the learned adjudicator who heard the matter determined, it appears, that Mr Cutbush had behaved objectionably because he had taken photographs of members of a neighbouring family and, also, because he sought to rely at the hearing on the contents of a report presented by a witness he called which, the adjudicator said, contained serious but unproven allegations against Ms Leach. [9] The reasons for granting leave contain an error, concerning that report. They observe that nothing in the record of the proceedings revealed a document of that kind. That was incorrect. Part of the adjudicators file had gone missing within the QCAT Registry. The document was subsequently found. [10] The oversight has, however, no bearing on the outcome of the application for leave because, as explained in the Reasons for that decision, the conduct upon which the adjudicator relied did not occur before Ms Leach applied for the termination order or in any context referrable to the residential tenancy itself but, only, within the confines of the QCAT hearing. It was not behaviour to which s 297 can be seen to apply, and a finding against Mr Cutbush based upon it cannot stand. [11] The first finding – that Mr Cutbush’s conduct in taking photographs of his neighbours was objectionable – was based upon evidence from two neighbours on the adjoining property, with their children. Ms Leach was on close terms with those neighbours, and called them in her case. Relevantly, the adjudicator observed that her conduct in passing on to those neighbours some emails Mr Cutbush had sent her, concerning the behaviour of the neighbours’ dogs, exacerbated tensions between them and Mr Cutbush. [12] Because Mr Cutbush’s appeal was against a QCAT decision in a minor civil dispute, it was necessary for him to obtain leave: Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) s 142(3)(a)(i). As I understood his submissions, he alleges his conduct was not objectionable within the meaning of s 297. 1 [2010] QCAT 175 -- 3 of 6 -- 4 [13] His appeal is, then, on a mixed question of fact and law, a concept helpfully explained by the Supreme Court of Canada in Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748 2 : Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests. In particular, the question whether facts fall within a statutory provision is a question of law: Hope v Bathurst City Council (1980) 144 CLR 1 at 7 per Mason CJ. [14] Under s 147 of the QCAT Act appeals involving mixed questions of this kind must be decided by way of rehearing, with or without the hearing of additional evidence. In deciding the appeal QCAT may confirm or amend the decision, or set it aside and substitute its own decision. [15] The original hearing involved 85 pages of transcript, a large number of exhibits, and 13 pages of Reasons. The parties have provided sizeable bundles of additional material in this appeal including, in particular, documents indicating their dispute remains ongoing; each has delivered, it appears, additional Notices under the RTRA alleging (on the Cutbush’ part) breaches of the tenancy agreement by the agent or landlord and, on the agent’s part, demands that the Cutbush’s leave, and the like. It is now asserted by the agents, for example, that the Cutbush’s are in arrears of rent. However, nothing in this material suggests that either party have or wish to adduce any additional evidence about the hearing that came before the adjudicator and would actually be relevant to this appeal. [16] I did not understand Mr Cutbush to deny he had taken photographs of the neighbours. The issue in the appeal is then, in truth, distilled to a relatively simple point: was that conduct objectionable behaviour in terms of s 297, warranting a termination order? [17] The neighbours each gave evidence. The male neighbour admitted that on the first occasion he and Mr Cutbush spoke he called Mr Cutbush a ‘fucking coward’ and a ‘bastard’. He admitted, too, that he had filmed Mr Cutbush and an acquaintance of his. The female neighbour gave evidence of seeing Mr Cutbush taking photos of her children but Mr Cutbush alleged that, immediately before this incident, the female neighbour stuck her finger up at him when he looked out the window. [18] The learned adjudicator, who had the advantage of seeing and hearing the parties and witnesses in person, plainly accepted that the neighbours’ conduct had been provocative. He described it, in his reasons, as ‘quite unimpressive’ and ‘…not something they should be proud of’. He accepted (as the evidence plainly established) that they had sworn at the Cutbush family, and taken photographs of them. 2 At [ 35] per Iacobucci J, speaking for the Court -- 4 of 6 -- 5 [19] The critical finding is at page 1-9 of the learned adjudicator’s reasons: There is evidence about photographs being taken. I accept the evidence of the neighbours with respect to this. I know Mr Cutbush says he was taking photographs of his family and the horses and dogs. However, the evidence of the neighbours was quite firmly that the camera was directed at them personally and photographs were taken of them and the children. I accept that evidence. However, I also accept the evidence of Mr Cutbush that photographs were taken of him and his family by the neighbours. However, I do consider that the conduct of the tenant was objectionable with respect to taking photographs of the neighbour. [20] The learned adjudicator then directed himself to s 297 and said, correctly with respect, that the section requires that two matters be established: first, that the behaviour was objectionable; and, secondly, that it justifies terminating the agreement. In the passage set out above, a finding was made about the first question. As to the second, at pages 1-9 and 1-10 of the Decision the learned adjudicator referred to the fact that the lease still had 9 months to run and said: The issue is whether the objectionable behaviour was so severe that it would justify the termination of the lease in question. [21] There follows, at 1-10, a passage in which the learned adjudicator considers whether or not Ms Leach should continue to manage the property or place it in the hands of another agent, and recommends that course. There is no further reference to the question of the photographing of the neighbour and whether or not it is so objectionable as to warrant a termination order. [22] Rather, the decision then turns to the evidence of Mr Cutbush’s witness Mr Nicholas and the book of apparently unrelated allegations against Ms Leach mentioned earlier. The adjudicator says: However, I regard the allegations that are set out in the report of Mr Nicholas of such severity that I consider that those allegations that are made against the applicant, especially when the respondent has no personal knowledge of the content of those matters. Here is a case where he was prepared to make allegations in his own case where another person has made allegations, spurious or otherwise. The fact that he was prepared to make those particular allegations in those circumstances to me means that his objectionable behaviour would fall across the line. That is so objectionable that the behaviour justifies terminating the agreement. And I’m prepared to make that order. [23] For the reasons explored earlier, the finding that the irrelevant evidence of Mr Cutbush’s witness constituted relevant evidence of objectionable behaviour for the purposes of the application before the learned adjudicator was wrong. In the result, no finding was actually made about the question whether or not the photographing of the neighbour was objectionable behaviour, warranting a termination order. [24] Objectionable behaviour in terms of s 297 must be looked at in context of the circumstances in which it occurred. The Macquarie Dictionary defines ‘objectionable’ as ‘unpleasant, offensive’. Taking photographs without -- 5 of 6 -- 6 permission may well be categorised in those terms but the behaviour addressed by the statutory provision does not operate in a vacuum, rather it must involve questions of degree and circumstance and, here, must be considered in the context of preceding events. [25] The evidence establishes that the first occasion of any conversation between the male neighbour and Mr Cutbush involved that person using highly offensive and unpleasant language to him. The neighbour also admitted that he had filmed, at least, a fence Mr Cutbush had constructed apparently intending to keep out the neighbours’ dogs. [26] While the taking of photographs is both unpleasant and provocative, in the context of the circumstances just described and the initial hostile and offensive conduct of, at least, the male neighbour, it is difficult to see how Mr Cutbush’s conduct can be described as harassment or intimidation of them, or a serious nuisance. It should at worst be categorised as retaliatory, and inappropriate, but hardly unexpected or surprising. [27] The evidence and the weight of evidence before the learned adjudicator pointed, in reality, to that conclusion and no other. The absence of a specific finding that the photographing warranted a termination order indicates the adjudicator also reached, but did not articulate, that conclusion. [28] That oversight is understandable. Mr Cutbush’s behaviour at the hearing was, the transcript shows, disruptive and plainly intolerable. He repeatedly spoke over or ignored the adjudicator’s requests, and directions. He interrupted the adjudicator, Ms Leach and witnesses constantly. It is inescapable that this conduct, combined with his attempts to adduce the entirely irrelevant evidence of Mr Nicholas, contributed to the error into which the learned adjudicator fell. [29] His submissions in these appeal proceedings also manifest a similar tendency to excess, and a lack of reason or perspective. Twelve of the thirteen grounds of relief he seeks, including demands for a written apology from Ms Leach, and that the ‘objectionable behaviour’ of the learned adjudicator be ‘…reviewed and coaching is undertaken in professional QCAT polices and obligations in relation to evidence’, are not available to him, or entirely inappropriate and unnecessary. His attempt to influence this Tribunal with a letter from his superior is another example of clearly inappropriate and unreasonable conduct. [30] Those regrettable matters aside, it is unavoidable that the learned adjudicator was mistaken when he categorised the only sustainable allegation of objectionable behaviour – the taking of the photographs – as conduct which fell within the ambit of the section (in the surrounding factual circumstances here), warranting a termination order. [31] This is the case in which it is necessary to allow the appeal, set aside the adjudicator’s decision and substitute a finding in Mr Cutbush’ favour. That is the limit of the relief he should receive. -- 6 of 6 --