Tenancy Law Case Summaries (Human Rights)

A residential tenant was served with an application from ‘Vanilla Rentals’, seeking a termination order and warrant of possession on the grounds that the tenant’s residential tenancy agreement had ended and they had refused to vacate the premises. The tenant wished to remain in the premises for a further six months while she recovered from imminent surgery and renovated her next place of residence (mobile home). The tenant argued that a variety of her human rights would be interfered with by a forcible eviction, but the Tribunal limited its consideration to her freedom to choose where to live.

Decision and Reasons

The Tribunal considered the extent to which the Human Rights Act 2019 (Qld) applied to the exercise of its discretion to issue a termination order and warrant of possession. The Tribunal decided that the tenant’s right under the Act “must be taken account of, but not to the exclusion of other relevant and countervailing matters” in favour of terminating the tenancy. The ‘relevant and countervailing matters’ referred to include the premises’ need for maintenance, the tenant’s refusal to allow contractors to access the premises, and the cessation of the residential tenancy agreement itself.

While the Tribunal granted the termination order and warrant of possession, consideration was given to the tenant’s circumstances in delaying their enforcement until January 2024.

You can read the full decision here: Vanilla Rentals v Tenant [2023] QCAT 519

A tenant failed to pay rent for community housing and did not remedy the rent breach or leave the premises after being issued notices by the housing provider, Horizon Housing Company. Horizon sought termination of the lease on the ground of the Respondent’s failure to leave.

Decision and Reasons

In deciding the case, Adjudicator Walsh acknowledged that the tribunal is bound to consider the tenant’s relevant human rights (specific rights not mentioned), but that they should be considered in the factual and legal context of each case. In the circumstances where the tenant had ignored his responsibilities as a tenant and was in ongoing breach of the lease in increasing rental amounts, the tenant’s human rights were lawfully limited by the valid and effective provisions of the Residential Tenancies and Rooming Accommodation Act 2008. As such, Horizon was entitled to a termination order and a warrant of possession.

You can read the full decision here: Horizon Housing Company v Ross [2020] QCAT 41

The State of Queensland (Applicant), as landlord of the relevant premisies, received over 148 videos in which the Respondent tenant allegedly demonstrated ‘objectionable behaviour’. On this basis, the Applicant sought to evict the Respondent along with her 20-year-old son.

The Respondent, who notably suffered from a serious mental illness and had reportedly been the victim of domestic violence, submitted that the termination of her State Tenancy Agreement would interfere with her freedom to choose where to live, right to protection from degrading treatment, right to familial privacy, and freedom of expression.

Decision and Reasons

The Tribunal determined that the Respondent’s freedom to choose where to live was suitably limited by the availability of public housing, and the aggressive/abusive nature of the ‘objectionable behaviour’ warranted termination of the lease.

The Tribunal determined that the Respondent’s right to protection from degrading treatment encompassed forcible eviction but was reasonably limited in circumstances where they refused to vacate the premises in accordance with a Tribunal order.

The Tribunal determined that the Respondent’s freedom of expression was lawfully limited given the interference their ‘objectionable behaviour’ had on the rights of others (neighbours).

The Tribunal determined that the Respondent’s right to familial privacy was not unlawfully or arbitrarily restricted, and the consequences of forcible eviction were inevitable considering the Respondent’s ‘objectionable behaviour’.

You can read the full decision here: The State of Queensland through the Department of Housing and Public Works v Tenant [2020] QCAT 144

The tenants in this matter (Respondents) were found to have been directly discriminated against under the Anti-Discrimination Act 1991 by the landlord and his wife (Appellants), on the basis of pregnancy and race.

Halfway through their fixed-term lease, the Respondents, who are of Kenyan descent, informed the Appellants that they wanted to break their lease to move somewhere larger for the benefit of the forthcoming baby. The Appellants agreed on the condition that a new tenant could be found but later told them that they would evict the Respondents if they brought the newborn into the home. The Respondents were also subject to a “campaign” to deny or limit access to any benefits associated with the accommodation (delaying water repairs, issuing baseless breach notices, threatening eviction, etc.) because of their race as well as on the basis of the Respondents’ pregnancy.

Decision and Reasons

The Tribunal found for the Respondents in first instance and this decision was confirmed with the Appellants’ appeals being dismissed.

Key Takeaways:

• It is direct discrimination to threaten or actuate eviction proceedings because the tenant is pregnant and will be bringing a baby into the accommodation.
• A landlord does not need conscious awareness that their conduct was made on the basis of protected attribute for direct discrimination to occur, as long as their reason for different treatment occurred on the basis of a protected attribute. This means conscious awareness of prejudice is not a necessary element for direct discrimination.
• Direct discrimination by a landlord against a tenant can occur even if the landlord themselves does not have prejudicial views of the relevant protected attribute (e.g. race of the tenant). It is enough that someone who a landlord will listen to when making tenancy decisions (e.g. a spouse) holds prejudicial views against the relevant protected attribute.

You can read the full decision here: De Soysa Walsh Pty Ltd & Ors v Gitau & Anor [2024] QCATA 100

The appeal related to a previous Magistrates Court decision over a residential tenancy dispute, in which the lessee (Applicant) refused to allow the lessor (Respondent) access to the premises to conduct crucial maintenance.

On appeal, the Applicant alleged that the Respondent had previously breached the tenancy agreement by failing to maintain the premises, which led to the deterioration of the Applicant’s mental health (supported by letter from general practitioner). The Applicant subsequently formed the belief that the Respondent only wants to access the premises now for the purpose of gathering evidence to evict the Applicant.

Decision and Reasons

The Tribunal dismissed the Applicant’s concern on the basis that the Respondent already had ample evidence to evict the Applicant without entering the premises to conduct maintenance.

The Applicant also requested a non-publication order in the interests of mental and physical health protection. Despite ultimately granting the Applicant’s non-publication order, the Tribunal did consider the requirement that ‘all decisions in a proceeding must be made publicly available’ under section 31(3) of the Human Rights Act 2019 (Qld).

You can read the full decision here: IMM v Department of Housing and Public Works [2020] QCATA 73

An affordable housing provider (Applicant), sought to extend their exemption to potential breaches of the Anti-Discrimination Act 1991 (Qld) that occur during business operations.

In particular, the Applicant wished to provide accommodation to certain people based on their relationship status, familial status, age and existence of any impairment, without fear of being litigated.

Decision and Reasons

In making a decision compatible with the Human Rights Act 2019 (Qld), the Tribunal considered:

• the necessity of an exemption;
• the appropriateness of an exemption;
• alternatives to an exemption; and
• whether the community is interested in granting an exemption.

The Tribunal ultimately granted the extension and concluded that any limitation it placed on human rights is reasonable and demonstrably justifiable. In addition, the Tribunal was persuaded by the link between the limitation on human rights and the Applicant’s overall purpose, which was to provide affordable housing to appropriate tenants.

You can read the full decision here: Brisbane Housing Company Ltd (No 1) [2024] QCAT 5 (9 January 2024)

A tenant (Applicant) and her husband rented an apartment unit owned by Ocean Blue Realty (second Respondent) and managed by Medi-Aid (first Respondent). The Applicant had been diagnosed with various mental health conditions and had been advised by her doctor to obtain an assistance dog. However, there was a “no pets” term in the lease. The Applicant and her husband requested permission from the Respondents to keep the dog. However, the Applicant and her husband were later issued with a Notice to Leave on the basis of breaching the lease by having the dog on the premises. The Applicant alleges the Respondents discriminated against her, evicting her because of her impairment and reliance on an assistance dog.

Decision and Reasons

The Tribunal found that the Respondents had directly discriminated against the Applicant. The Applicant was treated less favourably than a person without an assistance dog (the comparator) would have been treated, as that person would not have been required to leave.

The Tribunal found on the evidence that the Respondents’ staff were aware that the dog was an assistance dog, despite denying this knowledge, and the less favourable treatment was “on the basis of” the reliance on an assistance dog.

The “no pets” term constituted indirect discrimination. The discrimination was unlawful. The eviction was not because of the “no pets” term, but because of the Applicant’s ownership and reliance of an assistance dog which breached that term, satisfying the causation requirement.

The Tribunal awarded the Applicant with $10,000 for stress, humiliation and loss of dignity from the discrimination, and $3,115 for furniture storage costs.

You can read the full decision here: Jackson v Ocean Blue Queensland Pty Ltd & Ors [2020] QCAT 23 (23 January 2020)

The Tribunal had previously decided to terminate the residential tenancy agreement between the tenant (Appellant) and landlord (Respondent) on the basis that the appropriate procedure under the Residential Tenancy and Rooming Accommodation Act 2008 (Qld) had been followed by the Respondent. The Appellant filed an application for leave to appeal or appeal, as well as an application for stay. As part of the grounds of appeal, the Appellant made generalised complaints that his rights under the Human Rights Act 2019 (Qld) were infringed because the Respondent was the only housing provider in the location.

Decision and Reasons

Member Oliver concluded that it would be difficult to establish that there is a reasonably arguable case of error in the previous decision that would warrant a grant of leave to appeal.

The Tribunal member did not seem to make any substantive comments on the human rights arguments but noted that the Appellant would be disadvantaged without the benefit of a stay as there did appear to be a housing shortage in that location. However, the Respondent would be equally disadvantaged if she could not access her own property. As such, the application for a stay was refused.

You can read the full decision here: Bowie v Gela [2022] QCATA 112

This matter concerned an appeal by Gold Coast Property Expo, the agents of the owner (Appellant) against a decision by a Member to summarily dismiss their residential tenancy compensation claim against their former tenants (the Respondents).

The Respondents created an exit condition report and provided their only copy to the Appellant. The Appellant then created their own digital exit condition report and failed to include the Respondents’ report in their evidence to the Tribunal. The original Tribunal Member dismissed the claim on the grounds that by failing to include the report the Appellants were conducting the proceedings in a way that was unnecessarily disadvantaging the Respondents and failing to provide the Tribunal with adequate evidence.

Decision and Reasons

The Appellate Member considered the exit condition report as simply “a contemporaneous document which in the circumstances of this particular case had little relevance.” The Appellate Member stated that the Appellant was not obliged to ensure all relevant evidence was before the court, including evidence that would harm their case. As such, it was wrong on principle to dismiss the claim because of the Appellant’s failure to include the exit condition report in their evidence. Leave was granted and the appeal was allowed.

The key takeaway from this case is that the Tribunal must be mindful that striking out or dismissing a claim without hearing its merits is a “drastic” and “very serious matter,” especially considering section 31 of the Human Rights Act 2019 (Qld) which provides that persons involved in a civil proceeding have a right to “to have the proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.”

There needs to be clear reasons as to why a Member is exercising their discretion to dismiss an application and the “unnecessary disadvantage” to the other party must be expressly identified.

You can read the full decision here: Gold Coast Property Expo v Rhodes [2022] QCATA 120