IMM v Department of Housing and Public Works [2020] QCATA 73

Date: 9 June 2020
Tribunal: Queensland Civil and Administrative Tribunal
Tribunal Member: Judge Allen QC, Deputy President
Human Rights Act 2019 (Qld) Sections: s 31(3)
Rights Considered: Right to a fair hearing: all judgments or decisions made by a court or tribunal in a proceeding must be publicly available.
Other Legislation: Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 58, 66, 143, 145; Residential Tenancies and Rooming Accommodation Act 2008 s 201

Keywords: Tenancy; Mental health; Confidentiality; Privacy; Fair hearing

This case concerned the right to a fair hearing, particularly the right to have all judgments or decisions made by a court or tribunal publicly available pursuant to section 31(3) of the Human Rights Act 2019 (Qld). The applicant sought an order that his name be suppressed to protect his mental health, and the Tribunal ordered a non-publication order on this basis.

This case concerned a residential tenancy dispute filed by the respondent in the local Magistrates Court in May 2020. Orders were sought pursuant to section 201 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) to enable the lessor to enter the property: at [3]. The respondent filed an affidavit of an employee of the respondent who ‘deposed, amongst other things, as to the applicant’s refusal to allow the respondent’s agents to enter the premises to effect repairs and carry out maintenance under the rules of entry’: at [5]. In response, the applicant filed an affidavit denying the respondent’s allegations: at [6].

In the first instance, the Magistrate (sitting as QCAT) ordered that ‘the rules of entry in respect of the tenancy of the premises be changed in terms which permitted entry of the premises for effective repairs to and maintenance of the premises’ including mowing the grass, replacing gutters, repairing the fence and replacing the vinyl flooring: at [7].

The applicant sought leave to appeal, or appeal, a previous decision (‘the first application’) and an application to stay a decision (‘the second application’): at [8]. The first application included allegations by the applicant that the respondent ‘misled the QCAT member’ and for ‘defamation and perjury’: at [9]. The second application included allegations of ‘prior breaches of the tenancy agreement by the respondent, including failure to maintain the yard resulting in attraction of snakes, affecting the applicant’s post-traumatic stress disorder and leading to assaults upon the applicant by neighbors’: at [10].

In the applicant’s initial affidavit, he sought an order that his name be ‘suppressed “on the basis of mental health protection”’: at [19]. To determine this, section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) was examined by Judge Allen, whereby his Honour asserted that the ‘exercise of discretion’ pursuant to this section ‘must be in the context of the paramount principles favouring open justice’: at [23]. Section 31(3) of the Human Rights Act 2019 (Qld), which states that all judgments and decisions made by a court or tribunal in a proceeding must be publicly available, was mentioned in support of section 66.

His Honour ruled that a non-publication order was ‘necessary to avoid endangering the physical or mental health or safety of the applicant’ and made additional orders prohibiting the publication of documents, evidence presented, and orders or reasons given by the Tribunal ‘to the extent that it could identify or lead to the identification of the applicant’: at [24].

Visit the reported judgement: IMM v Department of Housing and Public Works [2020] QCATA 73