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Queensland Judgments
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  • Unreported Judgment

IMM v Department of Housing and Public Works

 

[2020] QCATA 73

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

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

PARTIES:

IMM

(applicant/appellant)

 

v

 

DEPARTMENT OF HOUSING AND PUBLIC WORKS

(respondent)

APPLICATION NO/S:

APL 145-20

ORIGINATING APPLICATION NO/S:

MCDT148/20

MATTER TYPE:

Appeals

DELIVERED ON:

9 June 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judge Allen QC, Deputy President

ORDER (8/06/2020):

FURTHER ORDER (9/06/2020):

The application to stay a decision is refused.

Until further order, pursuant to s 66(1) of Queensland Civil and Administrative Tribunal Act 2009, publication of:

  1. (a)
    the contents of a document or thing filed in or produced to the Tribunal;
  2. (b)
    evidence given before the Tribunal; and
  3. (c)
    any order made or reasons given by the Tribunal,

is prohibited to the extent that it could identify or lead to the identification of the applicant.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where  a stay of a decision is sought pending appeal – whether a stay can be granted when leave to appeal has not yet been granted – whether an interim order in the nature of a stay should be made – whether a non-publication order should be made

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 58, s 66, s 142, s 145

Hessey-Tenny & Anor v Jones [2018] QCATA 131

REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

Self-represented

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

Introduction

  1. [1]
    These are the reasons for my decision, made on 8 June 2020, that the applicant’s application to stay a decision is refused.  

Background

  1. [2]
    The applicant resides in residential premises (“the premises”) pursuant to a residential tenancy agreement with the respondent.
  2. [3]
    The respondent filed an Application for minor civil dispute – residential tenancy dispute in the local Magistrates Court registry on 5 May 2020 seeking orders pursuant to section 201 of the Residential Tenancies and Rooming Accommodation Act 2008 (“RTRA Act”).
  3. [4]
    Section 201 of the RTRA Act is found in Chapter 3 (Rights and obligations of parties for residential accommodation), Part 3 (Lessor’s right of entry) of the RTRA Act. Other provisions found in Chapter 3, Part 3 provide for the lessor’s grounds of entry to premises (section 192), which include for inspection, repair and maintenance of the premises, and provisions regulating the exercise of such right to enter (sections 193 to 199). The rights and obligations under sections 192 to 199 about the entry of the premises are called the “rules of entry”: section 200. Section 201 relevantly provides as follows:

201 Entry by lessor or lessor’s agent under order of tribunal

  1. (1)
    This section applies if, on an application made to a tribunal by the lessor …, the tribunal is satisfied—
  1. (a)
    the tenant has not allowed the lessor or lessor’s agent to enter the premises under the rules of entry…
  1. (2)
    The tribunal may change the rules of entry in the way it considers appropriate.
  1. (3)
    If the tribunal changes the rules on the ground mentioned in subsection (1)(a), the lessor or agent may enter the premises under the rules of entry or the rules of entry as changed.
  1. [5]
    The respondent filed material including 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.
  2. [6]
    The applicant filed material including an affidavit in which he deposed, amongst other things, that he had not denied access to the premises as alleged by the respondent.
  3. [7]
    The application was heard and determined by a Magistrate sitting as QCAT and on 26 May 2020 the Magistrate ordered that the rules of entry in respect of the tenancy of the premises be changed in terms which permitted entry to the premises for effecting repairs to and maintenance of the premises as follows:
    1. (a)
      cleaning and mowing/slashing of the grass in the yard;
    2. (b)
      replacement of/ repairs to guttering and down pipes;
    3. (c)
      repairs to/ replacement of fencing; and
    4. (d)
      repositioning (and replacing) of furniture and the tenant’s personal effects in order to replace vinyl flooring and for repairing/replacing vinyl flooring.

(“the decision”)

The applications for leave to appeal or appeal and to stay the decision 

  1. [8]
    The applicant filed an Application for leave to appeal or appeal the decision on 3 June 2020.  The applicant filed an Application to stay a decision on the same date. 
  2. [9]
    In the Application for leave to appeal or appeal, the applicant alleges that the respondent misled the QCAT member and alleges defamation and perjury.
  3. [10]
    In the Application to stay a decision, the applicant:
    1. (a)
      repeats the allegations in the Application for leave to appeal or appeal;
    2. (b)
      alleges 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 neighbours; and
    3. (c)
      attaches a letter from his general practitioner dated 2 June 2020.
  4. [11]
    The letter from the applicant’s general practitioner is helpful in that provides a context of a history of dispute between the applicant and the respondent as to the condition of the premises, confirms the dreadful condition of the premises and describes the serious adverse consequences to the applicant by reason of his living circumstances and his dispute with the respondent. I will say more about that later. The letter is also helpful in providing some insight as to the applicant’s reasons for opposing the respondent’s access to the premises:

… [IMM] has been intending to seek broad rectification of the issues detailed above through an independent QCAT application. He is now justifiably concerned the current actions of the Department are an attempt to find grounds on which to evict him.

As [IMM]’s General Practitioner, and his advocate, I implore the Sitting Member to grant a stay of the order allowing the Queensland Department of Housing access to the property [redacted] on [redacted]. This would allow [IMM] to lodge his own application to QCAT as above.

  1. [12]
    Leave to appeal the decision is required: Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”), s 142(3)(a)(i).

Principles 

  1. [13]
    The Tribunal has power to make an order staying the operation of a decision being appealed against until that appeal is finally decided: s 145(2) of the QCAT Act. The circumstances in which a stay might be granted are not proscribed by the QCAT Act.  General principles applied by the courts on applications for a stay pending appeal provide guidance.  An applicant for a stay must demonstrate a reason to warrant the exercise of discretion to grant the stay. The applicant must show that the balance of convenience favours a stay. Considerations such as irremediable prejudice in the absence of a stay will be relevant.  Original decisions are not to be treated as merely provisional pending the determination of an appeal. Absent a good reason for a stay, a successful party is entitled to the fruits of judgment unless and until the judgment is overturned on appeal.
  2. [14]
    Where, as is the case here, leave to appeal is required but has not yet been granted, the power to stay the decision under s 145(2) of the QCAT Act is not available but s 58 of the Act will empower the Tribunal to make an interim order to the same effect where the applicant can demonstrate exceptional circumstances such as to warrant the making of an order in the nature of a stay: Hessey-Tenny & Anor v Jones [2018] QCATA 131.

Consideration

  1. [15]
    I do not yet have available to me a transcript of the hearing and the Magistrate’s reasons for decision. That constrains any provisional assessment of the applicant’s prospects of obtaining leave to appeal and successfully appealing the decision. On the material I do have before me, I can conclude that there was ample evidence upon which the Magistrate could be satisfied that the applicant had not allowed entry to the premises under the rules of entry and that orders should be made permitting entry for badly needed repairs and maintenance. My necessarily provisional assessment is that the applicant’s prospects of obtaining leave to appeal are poor. That factor weighs against a stay.
  2. [16]
    I turn to consideration of any factors relevant to a consideration of the balance of convenience. It is true that any appeal would be rendered nugatory in the absence of a stay, in that the respondent will have exercised the right of entry pursuant to the Tribunal’s orders in the absence of a stay. I do not consider that such factor provides justification for a stay. The Magistrate was no doubt satisfied that such entry was for the purpose of badly needed repairs and maintenance. There is no reason I would conclude otherwise. The applicant’s real concern, as can be discerned from the material he filed in the Tribunal proceedings and as more clearly articulated in the letter from his general practitioner, is that the respondent will use such entry to gather evidence it could then use to evict the applicant from the premises. The applicant is concerned that this will place him at a tactical disadvantage in proceedings in relation to the tenancy he wishes to institute in the Tribunal. I do not consider that the applicant has demonstrated a relevant disadvantage in this respect. Firstly, there appears to be ample evidence available to the respondent, both from its own investigations and from material filed by the applicant in the Tribunal, of the dreadful state of the premises in any event. Secondly, the applicant can, in any event, in Tribunal proceedings instituted by himself or in defence of further proceedings by the respondent, litigate those matters he has detailed in his voluminous material filed in the Tribunal proceedings. A stay of the Magistrate’s orders is not necessary to preserve the applicant’s right and ability to do so. 
  3. [17]
    None of the considerations that would favour a stay have been demonstrated in this case. The balance of convenience does not favour a stay of the decision. The applicant has not demonstrated exceptional circumstances such as to warrant the making of an order in the nature of a stay.
  4. [18]
    For these reasons, my decision was that the application to stay the decision was refused.

Non-publication order

  1. [19]
    In his affidavit filed in the Tribunal proceedings, the applicant sought an order that his name be suppressed “on the basis of mental health protection”.
  2. [20]
    In her letter dated 2 June 2020, the applicant’s general practitioner states, regarding the applicant:

He is profoundly depressed and suicidal, and, validly, is feeling increasingly desperate. He has no escape from this situation and it is completely consuming him. I have never seen anyone live under such constant extreme stress levels.

…I have seen a clear and significant deterioration in both his physical and mental health in the 18 months I have been treating him.

  1. [21]
    Section 66 of the QCAT Act provides as follows:
  1. (1)
    The tribunal may make an order prohibiting the publication of the following other than in the way and to the persons stated in the order—
  1. (a)
    the contents of a document or other thing produced to the tribunal;
  1. (b)
    evidence given before the tribunal;
  1. (c)
    information that may enable a person who has appeared before the tribunal, or is affected by a proceeding, to be identified.
  1. (2)
    The tribunal may make an order under subsection (1) only if the tribunal considers the order is necessary—
  1. (a)
    to avoid interfering with the proper administration of justice; or
  1. (b)
    to avoid endangering the physical or mental health or safety of a person; or
  1. (c)
    to avoid offending public decency or morality; or
  1. (d)
    to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or
  1. (e)
    for any other reason in the interests of justice.
  1. (3)
    The tribunal may act under subsection (1) on the application of a party to the proceeding or on its own initiative.
  1. (4)
    The tribunal’s power to act under subsection (1) is exercisable only by—
  1. (a)
    the tribunal as constituted for the proceeding; or
  1. (b)
    if the tribunal has not been constituted for the proceeding—a legally qualified member or an adjudicator.
  1. [22]
    In LSC v XBV [2018] QCAT 332, the Hon Peter Lyons QC stated:

[26] Section 66 should be read with section 90 of the same Act.  That section commences by identifying, as the primary rule, a requirement that a hearing of a proceeding be held in public.  It then provides that the Tribunal may direct a hearing or part of a hearing be held in private, but only in circumstances similar to those specified in section 66, including where the Tribunal considers it necessary to make the order to avoid endangering the physical or mental health or safety of a person.  As will become apparent, both sections give the Tribunal a broader power to constrain the operation of the open court principle than is available to courts generally by virtue of their inherent (or implied) jurisdiction.

  1. [23]
    The exercise of discretion pursuant to s 66 of the QCAT Act must be in the context of the paramount principles favouring open justice. I further note the terms of sections 31(3) of the Human Rights Act 2019 in this regard.
  2. [24]
    I consider that a non-publication order is necessary to avoid endangering the physical or mental health or safety of the applicant and accordingly order as follows:             

Until further order, pursuant to s 66(1) of Queensland Civil and Administrative Tribunal Act 2009, publication of:

  1. (a)
    the contents of a document or thing filed in or produced to the Tribunal;
  2. (b)
    evidence given before the Tribunal; and
  3. (c)
    any order made or reasons given by the Tribunal,

is prohibited to the extent that it could identify or lead to the identification of the applicant.

Close

Editorial Notes

  • Published Case Name:

    IMM v Department of Housing and Public Works

  • Shortened Case Name:

    IMM v Department of Housing and Public Works

  • MNC:

    [2020] QCATA 73

  • Court:

    QCATA

  • Judge(s):

    Allen J

  • Date:

    09 Jun 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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