Underwood v The State of Queensland Department of Communities (Housing and Homeless Service)

[2011] QCATA 275

CITATION: Underwood v The State of Queensland Department of Communities (Housing and Homeless Service) [2011] QCATA 275

PARTIES:	Mrs Helen Underwood
v
The State of Queensland Department of Communities (Housing and Homeless Service)

APPLICATION NUMBER:            APL238-11 / APL239-11

MATTER TYPE: Appeals

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: Peta Stilgoe, Acting Senior Member

DELIVERED ON:   28 September 2011

DELIVERED AT:   Brisbane

ORDERS MADE:  1.   Application to file further submissions refused.

2. Leave to appeal refused.

CATCHWORDS:

MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where tenant unhappy in accommodation – where parties agreed that tenant would transfer to other premises – where premises subject to 3 flood events – where tenant in dispute with neighbours – whether tenant entitled to abatement of rent – whether tenant entitled to compensation for loss of quiet enjoyment

Residential Tenancy and Rooming Accommodation Act 2008, ss 94, 183

Dearman v Dearman (1908) 7 CLR 549

Fox v Percy (2003) 214 CLR 118

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404
Chambers v Jobling (1986) 7 NSWLR 1

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. Mrs Underwood has been a tenant of the Department for some time.  It is fair to say that the relationship has not been a happy one.  In January 2009, Mrs Underwood moved into a unit in Nundah.  She had issues with her neighbours and numerous complaints about the living conditions of the unit.  Mrs Underwood experienced three episodes of flooding after heavy rain, each over a period of days.

1. Mrs Underwood’s neighbours’ windows looked out onto her courtyard/exclusive use area.  Her dispute with them prompted her to erect screens in front of those windows.  That action escalated the dispute to the point where the neighbours took direct unpleasant action.  Mrs Underwood also erected a shade cloth structure, fixed to the fence of her tenancy, in breach of the body corporate by laws.

1. In August 2010, the Department issued Mrs Underwood with a notice to remedy breach.  The grounds for the notice were listed as:

·     Interfered with the reasonable peace, comfort of privacy of a neighbour as stated in your State Tenancy Agreement, and

·     Failure to pursue or comply with a decision regarding approval to attach a fixture of structure as stated in your State Tenancy Agreement.

1. At a hearing on 25 October 2010, the tribunal ordered:

the Department consider a transfer request from Mrs Underwood as a matter of urgency;

Mrs Underwood will accept any suitable or appropriate offer of accommodation to satisfy her transfer request; and

The “screen” could stay, subject to the Department assisting Mrs Underwood to change the position to allow light and air flow into her neighbour’s unit.

1. On 23 March 2011, Mrs Underwood applied for a reopening of that decision on the grounds that the Department had ignored the fact that her transfer request was made pursuant to the Flood Relief Package, which required the Department to pay her removal costs.  The application to reopen was refused.

1. On the same date, Mrs Underwood filed an application for an interim injunction, asking for an order that she was not compelled to sign a new lease until certain work had been carried out; that the Department pay her moving costs; that she not be required to pay a cleaning fee; and that the Department cease intimidating behaviour.

1. On 25 March 2011, Mrs Underwood filed an application for compensation.  She claimed the full amount of rent she had paid the Department during her occupation of the unit at Nundah.

1. The applications were heard together on 3 May 2011.  By then, Mrs Underwood had signed the new tenancy agreement and the Department gave an undertaking that it would not claim cleaning costs from Mrs Underwood.  The learned Member dismissed Mrs Underwood’s claims.

1. Mrs Underwood has appealed the learned Member’s decision on these grounds:

a)    The learned Member failed to apply the relevant law.

b)    The learned Member made findings of fact where there was no evidence to support that finding.

c)    The decision breached the rules of natural justice.

d)    The decision caused Mrs Underwood significant injustice.

e)    The learned Member incorrectly included documents from matter 239-11 in his consideration of 238-11.

1. For her submissions on each of these points, Mrs Underwood has invited the appeal tribunal to consider new evidence.  The appeal tribunal will only accept new evidence if it was not reasonably available at the time the proceeding was heard and determined[1].  Ordinarily, an applicant for leave to adduce such evidence must satisfy each of the following tests:

a)    The evidence could not have been obtained with reasonable diligence for use at the trial; 

b)    The evidence, if allowed, would probably have an important impact on the result of the case (although it need not be demonstrated that it would be decisive); and   

c)    That the evidence is credible though it need not be incontrovertible.[2]

[1] Sections 137 and 138 QCAT Act.

[2]           Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.

1. An application for leave to appeal is not, and should not be, an attempt to shore up the deficiencies of a party’s case at the initial hearing.  Mrs Underwood has provided no explanation as to why this material was not available earlier.  That evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Member.

1. Mrs Underwood has also applied, informally, for leave to file further submissions in response to the Department’s submissions.  She has already filed a large volume of material.  The issues in dispute are known to her.  She has not given the appeals tribunal any cogent reason why she should be granted this further indulgence.  Finality in litigation is highly desirable because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties.[3]  Leave to file further submissions in response should be refused.

   [3]        See Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Kirby and Gummow JJ.

1. Because this is an appeal from a decision of the tribunal in its minor civil dispute jurisdiction, leave is necessary.  Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief.  Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?

1. Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[4] 

   [4]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.

1. An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.[5]  As the High Court said in Fox v Percy:

In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses.  In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.[6]

[5]        Chambers v Jobling (1986) 7 NSWLR 1 at 10.

[6]        Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.

1. Mrs Underwood says that the learned Member failed to consider the effect of s 94 of the Residential Tenancy and Rooming Accommodation Act 2008.  That section enables the tribunal to decrease the rent payable if the premises are partly unfit to live in or the amenity or standard of the premises decreases substantially, through no fault of the tenant.

1. The learned Member did not expressly refer to the terms of s 94 in his reasons for decision but he made the point that the question of abatement was a matter for his discretion.[7]  The learned Member did not accept that the premises were unfit to live in or that the amenity of the unit decreased substantially during the period of the tenancy.  I have considered the documents filed in the tribunal and read the transcript carefully.  There is nothing in the material that persuades me that the learned Member should have taken a different view.

   [7]           Transcript 3 May 2011; page 24, lines 22-25.

1. Mrs Underwood refers to a decision of the Consumer, Trader and Tenancy Tribunal of New South Wales in support of her application for leave to appeal.  Unhelpfully, she has not provided the name of the decision, nor a valid reference number.[8]  I have searched for a decision published on 4 March 2011 and can find nothing that fits the description.  I cannot, therefore, give any consideration to the principles that it may have expressed.

   [8]        These decisions are published with the designation [2011] NSWCTTT.

1. I note Mrs Underwood’s submissions about: the neighbours’ behaviour; the Department’s entry without notice; the alleged breaches of by-laws; and the design defects.  Section 183 of the RTRA deals with quiet enjoyment.  The landlord’s obligation is limited to taking “reasonable steps” to ensure quiet enjoyment.  The learned Member did consider the issue of compensation for loss of quiet enjoyment[9].  Once again, it was a matter within his discretion and, once again, there is nothing in the material that indicates his conclusion was contrary to compelling inferences.

   [9]        Transcript 3 May 2011; page 24, lines 23-25.

1. Mrs Underwood does not provide any detail of the way in which the decision breached the rules of natural justice.  She took the opportunity to submit material to the tribunal.  She was present at, and made submissions during, a number of tribunal hearings.  The transcript shows that Mrs Underwood was given every opportunity to address the learned Member, submit evidence and bring matters to his attention.  I can find no support for a finding that the tribunal proceedings, or the learned Member’s conduct, gave rise to a lack of natural justice.

1. Similarly, Mrs Underwood does not detail the way in which the decision caused her significant injustice.  She was living in subsidised housing.  She continues to live in subsidised housing.  She was transferred from the Nundah unit at her request.  She was not required to pay the exit cleaning fee.  The only unusual expense that Mrs Underwood has borne from this multi-headed dispute is the cost of moving from Nundah to another home.  Mrs Underwood may not be happy with the learned Member’s decision but that does not mean that she has suffered an injustice.

1. Mrs Underwood’s last complaint is that she should have her moving expenses paid under the Flood Relief Package.  The decision that Mrs Underwood should move was taken in October 2010, well before the flood events of January 2011.  The Flood Relief Package was a specific and direct response to the January 2011 flood events.  Because there is no connection between the flood and the tribunal’s order of 25 October 2010, Mrs Underwood cannot be entitled to claim her moving expenses.

1. Mrs Underwood has filed a great deal of material on both files.  Much of it is repeated.  Her claims against the Department are based upon the same events: the conduct of the neighbours, the flooding and the living conditions.  If the learned Member considered material on one file when determining the issue in another, it was to Mrs Underwood’s advantage and I can see no cause for error in the learned Member’s decision.

1. There is no question of general importance that should be determined by the appeal tribunal; there is no reasonably arguable case that the learned member was in error; and there is no reasonable prospect of substantive relief on appeal.  Leave to appeal should be refused.