Bergin v Department of Housing and Public Works [2013] QCATA 190 (12 June 2013)

Last Updated: 9 August 2013

CITATION:

Bergin v Department of Housing and Public Works [2013] QCATA 190

PARTIES:	Kerry John Bergin (Applicant/Appellant)
	v
	Department of Housing and Public Works (Respondent)

APPLICATION NUMBER:

APL074-13

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes, Member

DELIVERED ON:

12 June 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

Leave to appeal, if required, is granted. The appeal is allowed. The order of 5 February 2013, terminating the Appellant’s tenancy, is set aside.

CATCHWORDS:

APPEAL – MINOR CIVIL CLAIM – TERMINATION OF TENANCY – whether jurisdiction to make termination order existed – whether error of law – whether leave to appeal required – whether leave, if required, should be granted – primary order set aside Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 61 Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 293, s 297, s 325, s 419, Schedule 2 Residential Tenancies and Rooming Accommodation Regulation 2009 (Qld), Schedule 3 Lowe v Aspley [2010] QCATA 59 Big4 Brisbane Northside Caravan Village v Schliebs [2012] QCAT 277 Sendall v Howe and Anor [2012] QCATA 41 Place West Rentals v Brooks and Anor [2012] QCAT 511 Evans v Saarman [2013] QCATA 58 Plowman v Palmer [1914] HCA 41; (1914) 18 CLR 339 Sydney Cove Redevelopment Authority v Maniaci [1972] 1 NSWLR 453

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 (‘QCAT Act’).

REASONS FOR DECISION

[1] On 28 April 2011 the Appellant became lessee of premises at 24 Walkers Lane Booval under a State Tenancy Agreement[1] (“the lease”) with the State of Queensland, through the Respondent (“the Department”).
[2] It is a term of the lease that the Appellant must not cause a nuisance by the use of the premises, for example, by “causing loud noises” or “interfer[ing] with the reasonable peace, comfort or privacy of a neighbour”.[2]
[3] On 23 October 2012 the Department gave the Appellant a notice to remedy a breach of the lease other than rent arrears.[3] The reason given for the notice was “interfer[ing] with the reasonable peace, comfort or privacy of a neighbour as stated in your State Tenancy Agreement”. The last date for remedying the alleged breach was 2 November 2012.
[4] On 5 November 2012 the Department alleged that the breach had not been remedied and gave him a notice to leave the premises[4] by 21 November 2012.
[5] On 5 February 2013, upon application by the Department, the Tribunal ordered that the tenancy be terminated.
[6] From that decision the tenant now appeals on several grounds that may summarised as follows:

1. Error of law, in failing to apply the time limit prescribed in section 293(2) of the RTA;
2. Apprehended bias;

100. That the ground of the Department’s application was amended without jurisdiction to do so;

4. Absence of proper notice to prepare a response to the application so amended;
5. Non-disclosure, or late disclosure, of evidence for the Department;
6. Failure to order witnesses to retire until required to give evidence (“contamination of witnesses”);
7. Undue restriction of cross-examination;
8. Acting upon irrelevant and prejudicial evidence.
   

The Time Limit in RTA section 293(2)

[7] Section 293 of the enabling Act provides that, where a lessor has given the tenant a notice to leave the premises, and the tenant fails to yield possession by the “handover day”,[5] the lessor may apply to the Tribunal for a termination order.[6]
[8] However, the section proceeds: “An application under this section must be made within 2 weeks after the handover day.”[7]
[9] It is common ground that the handover day was Wednesday 21 November 2012, and that the initiating application to the Tribunal was filed on 7 December 2012 – that is, two days after the time limit prescribed by the RTA expired.
[10] The existence of that time limit was not drawn to the attention of the Adjudicator, and in the pressure-cooker conditions under which Adjudicators are commonly required to work, it is quite understandable that the learned member did not advert to subsection 293(2) of the RTA.
[11] That raises the question whether the Adjudicator, had he been referred to subsection 293(2), could have granted the Department a short extension of time for filing its application.[8] There is authority in the Tribunal to indicate that the answer to that question is “No”.
[12] Section 61 of the QCAT Act is headed: “Relief from procedural requirements”. However, as the Deputy President held in Lowe v Aspley[9] the requirements of the RTA with respect to issuing notices and commencing proceedings are “not merely matter[s] of form; they are preconditions to QCAT’s jurisdiction to grant relief” under that legislation. In Big4 Brisbane Northside Caravan Village v Schliebs[10] the learned President refers with approval to the decision in Lowe v Aspley.
[13] Somewhat closer to the present case is the decision of Senior Member Oliver in Sendall v Howe and Anor.[11] In that case the applicant failed to comply with the 6 months’ limit that applies to claims for compensation.[12] The learned member observed:

Although the Tribunal has a general power to extend time under section 61 of the QCAT Act, that provision must be read in conjunction with the provisions of the [RTA], the enabling Act, which confers jurisdiction on QCAT to deal with tenancy matters. Here subsection 3 [of s 419] prescribes the period within which a compensation claim can be made. The language used is mandatory, in that any application “must” be made within 6 months. The [RTA] is prescriptive about the requirements for timeframes in which notices ... can be issued and when proceedings can be commenced.[13]

[14] Mr Oliver proceeded to set aside an order that was inconsistent with RTA s 419(3), as made without jurisdiction.[14]
[15] Sendall and similar Tribunal decisions are consonant with decisions of courts, to the effect that a discretion to relax procedural rules cannot avoid an inflexible, prescriptive statutory limitation. An unauthorised or prohibited act is a nullity, not a mere irregularity.[15]
[16] Ingeniously, the Department argues that the time limit imposed by RTA section 293(2) is immaterial, in view of amendment of the Department’s application, at the Adjudicator’s suggestion, to plead RTA section 297[16], which has no such limit. The defect in this submission is that the original section 293 application was a nullity, and so there was no justiciable matter before the Tribunal to amend.
[17] It follows that it is strictly unnecessary to examine the other grounds of appeal. However, the claim of apprehended bias cannot be allowed to pass without comment. Perusal of the transcript[17] shows that the Appellant persistently interrupted the Adjudicator, and acted with marked discourtesy towards witnesses and the Tribunal. The Adjudicator’s valiant efforts to maintain order and relevance cannot reasonably be described as indicia of bias.
[18] Further, the Appellant’s complaints of surprise and insufficient notice are not impressive. The substitution of section 297 for section 293 was a distinction without a significant difference. The breach notice issued on 23 October 2012 alleged interference with the “reasonable peace, comfort or privacy of a neighbour”. That is scarcely distinguishable from a claim of objectionable behaviour. And in fact the Appellant’s conduct of his case, in so far as it was relevant and intelligible, was entirely focused upon the propriety or otherwise of his conduct towards his neighbours. That conduct involved the obscene abuse of a woman aged 80, who would not allow the Appellant to use her telephone for a potentially expensive long distance call to a mobile phone number.[18] The Appellant’s effusions to the Tribunal included indiscriminate descriptions of neighbours as “criminals”.[19] The Appellant’s daughter, who lives with him, conceded that “he does drink”, that “once or twice” he was “yelling” in the street,[20] and that the police called at the Appellant’s house in response to complaints of loud music, “nine or ten times”.[21] A written statement by local police lists some 50 such visits. It might reasonably be said that the Appellant’s demeanour before the Adjudicator presented him as an exhibit in the Department’s case. Further proceedings are a matter for the Department to consider.
[19] However, unmeritorious as the Appellant’s case may be, the Adjudicator, bereft of professional assistance, inadvertently fell into legal error by purporting to exercise jurisdiction he did not possess. Consequently leave to appeal, if required, must be granted, the appeal allowed, and the order terminating the tenancy set aside. There will be orders accordingly.

ORDERS

1. Leave to appeal, if required, is granted.
2. The appeal is allowed.
3. The order of 5 February 2013, terminating the Appellant’s tenancy, is set aside.
   

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[1] Residential Tenancies and Rooming Accommodation Regulation 2009 Schedule 3.
[2] Clause 19(2) of the lease.
[3] Residential Tenancies and Rooming Accommodation Act 2008 (“RTA”) s 325 Form
11c.
[4] RTA Form 12.
[5] “Handover day” means the day stated in a notice to leave ... as the day vacant

possession of the premises is required to be ... handed over to the lessor: RTA Schedule 2 Dictionary.
[6] “Termination order” means an order of a tribunal terminating a residential tenancy
agreement or rooming accommodation agreement: RTA Schedule 2 Dictionary.
[7] Section 293(2), emphasis added.
[8] QCAT Act s 61.
[9] [2010] QCATA 59 at [11].
[10] [2012] QCAT 277 at [23].
[11] [2012] QCATA 41.
[12] RTA s 419(3).
[13] [2012] QCATA 41 at [10]. See also Place West Rentals v Brooks and Anor [2012]
QCAT 511 at [8]; Evans v Saarman [2013] QCATA 58 at [9].
[14] [2012] QCATA 41 at [11].
[15] Plowman v Palmer [1914] HCA 41; (1914) 18 CLR 339 at 348; contrast the error of the process server
in Sydney Cove Redevelopment Authority v Maniaci [1972] 1 NSWLR 453.
[16] Application for termination for tenant’s objectionable behaviour.
[17] 5 February 2013.
[18] Transcript 5 February 2013 page 20. “That woman is a bitch”: transcript page 31 (the
Appellant).
[19] Transcript pages 31, 36.
[20] Transcript page 29.
[21] Transcript page 27.