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Turnbull v State of Queensland

 

[2014] QCA 240

COURT OF APPEAL

MORRISON JA

Appeal No 8959 of 2014

QCAT No 1191 of 2014

ROBERT MICHAEL TURNBULL

Applicant

v

THE STATE OF QUEENSLAND THROUGH

THE DEPARTMENT OF HOUSING

AND PUBLIC WORKS

Respondent

BRISBANE

WEDNESDAY, 24 SEPTEMBER 2014

JUDGMENT

MORRISON JA:  This is an application to stay a decision in the Queensland Civil and Administrative Tribunal, pending an appeal from that decision.

The applicant is currently a resident at premises in Lenneberg Street, Southport, which he has on a form of tenancy where the Department of Housing and Public Works is the landlord.  He has resided in those premises since August 2010.

The material reveals that in about June 2014 the applicant's premises was searched by Queensland Police.  That search resulted in the discovery of a number of boxes containing approximately 108 items which the police contend are items for the production of an illegal drug, namely, methylamphetamine.  The items include equipment such as reaction vessels, condensers, glassware, beakers, burners, and scales, and chemicals such as Iodine and caustic soda.  The applicant has since been charged with offences relating to what was discovered, but those charges have not been finalised.

On the 7th of July 2014 the respondent issued a notice to leave, entitled First and Final Strike Notice and Notice to Leave, requiring the applicant to vacate the premises by 22 July 2014.  This was done under a departmental policy whereby the recipient of a first and final strike notice is no longer eligible for public housing.  The basis of the notice was the discovery of the items characterised by the police and by the respondent as, a category C Clandestine Drug Laboratory.

The notice relied on sections of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld), providing that the landlord may give such a notice if it, "reasonably believes the tenant, an occupant, a guest of the tenant or a person allowed on the premises by the tenant", has used the premises for an illegal activity: s 290A(1)(a), or has intentionally or recklessly endangered others in those premises or nearby premises: s 290A(1)(b)(ii).

The applicant did not vacate the premises and on 28 July 2014 the respondent brought an application to QCAT seeking a termination order and a warrant to enforce that order.  Part of the material relied upon at the hearing of that application included alleged admissions by the applicant, that there was an illegal drug laboratory or apparatus and toxic chemicals stored in boxes in his premises; that he suspected what was in the boxes, but was not 100 per cent sure of their contents, as the boxes belonged to someone else.

The material also revealed a contended course of abusive and anti-social behaviour by the applicant towards his neighbours and staff in the residential block where he lives.  This included allegations of harassing, intimidating, abusing and threatening neighbours and staff.  The applicant in that respect had been given a number of verbal warnings and a written formal warning.

The QCAT adjudicator made an order on 28 August 2014.  As a consequence a termination order was issued requiring the applicant to vacate the premises.

On 12 September 2014 the applicant took two steps in relation to the adjudicator's decision.  They were to file applications:

(a) seeking leave to appeal, and

(b) for a stay of the adjudicator's orders.

The grounds relied upon for the stay included that the applicant would be evicted from his residential premises, that he had no alternative accommodation and would be homeless, that he was suffering significant medical and mental health issues, and that the refusal of a stay would render his application for leave to appeal nugatory.

On 12 September 2014 the applicant's application for a stay was heard on the papers by Acting Senior Member Paratz.  The application for a stay was refused, and directions were given that the applicant had to notify by 22 September 2014 if he wished to proceed with the application for leave to appeal, otherwise that application for leave to appeal would be dismissed without further order.

On 18 September 2014 the solicitors for the applicant sent a letter to QCAT advising in respect of the decision of Acting Senior Member Paratz to refuse the application for stay, that:

“Our client proposes to appeal the decision of A/Senior Member Paratz not to grant a stay and to that end we request a copy of the written reasons for the decision be provided to us as a matter of some urgency as our client's Warrant of Possession (under which he will be evicted) is due to be executed on 25 September 2014 and we are proposing to have the matter heard in the Court of Appeal on 23 September 2014.”

That letter was evidently not seen by QCAT as being sufficient to satisfy the direction for notice to be given by the 22nd of September 2014.  On 23 September 2014 an order was made by Acting Senior Member Paratz in the form of a direction that:

“The Appeal Tribunal’s direction 3 dated 12 September 2014 dismissing these proceedings in the event of non-compliance by the applicant is confirmed.”

When that matter was raised with Mr Di Carlo, who appears for the applicant, it was made clear that that order has not been brought to the attention of the applicant prior to it being produced today under an affidavit filed by leave by the respondent.

The application to this court is to seek a stay of the order made on 12 September 2014, so that an application for leave to appeal to this court can be made against that order.  I pause to note that the documents actually filed in this Court suggest that it is intended to seek leave to appeal against the decision of the adjudicator as well.  For reasons which will appear, that is not possible.

The grounds relied upon in relation to the application include that the applicant will be made homeless if the stay is not granted and the order to vacate is enforced.  The applicant points to evidence that he underwent bowel cancer surgery in July and is still recovering from that.  Further, that his health issues include suffering glaucoma and requiring the use of a mobility scooter.  Other material put before the court include a psychologist's report from 2011 deposing as to the applicant's ability to control his then behaviour, at a time when the applicant was a serial offender for driving whilst disqualified.  The report deposes to cognitive difficulties which the applicant suffers.  Once again it is said that if the stay is not granted then any appeal (assuming leave is given) will be rendered nugatory as the applicant will have been required to vacate before it is heard.

In relation to the general prospects of appeal, the applicant points to the unreasonable nature of the decision to serve a notice to terminate, or to proceed on it, in the absence of any analysis by the police of the items found in the applicant's premises.  To that may be added the submission that no steps have been taken to determine whether the property - residential property - requires remediation or decontamination.  The applicant points to that and the fact that no analyst's certificate has yet issued, as a grounds to suggest that there is reason to doubt that the items found truly involved, or were involved, or were intended to be involved at some point, if not by the applicant, then by others, in the production of methylamphetamine.

Attention is also drawn by the applicant in relation to what is said to be “irrelevant material” which was put to one side by the adjudicator, but which may have caused prejudice.  Further, a contention is made that the decision is simply unreasonable, given the applicant's health issues and impending homelessness.

There is, however, a substantial hurdle which confronts the applicant in the prosecution of this application.  That relates to whether an appeal could be brought to this Court from the relevant decisions made in QCAT.

The adjudicator's decision was a final decision in those proceedings.  As a consequence a termination order issued, and a warrant to enforce it.  On 12 September 2014 the applicant applied for leave to appeal to the appeal division of QCAT, and for a stay pending the hearing of that appeal.  The application for a stay was refused by Acting Senior Member Paratz on 12 September 2014.

The proceedings instituted by the respondent in QCAT, which were heard by the adjudicator, correctly came within the definition of a “minor civil dispute”.  Where that is the case, and a civil dispute is decided by QCAT, a party can appeal to the appeal tribunal: s 142(1) of the Queensland Civil and Administrative Tribunal Act 2009, the Act, but only with leave: s 142(3)(a)(i) of the Act.  That is an appeal brought under Division 1 of Part 8 in Chapter 2 of the Act.

Under s 145(2), a tribunal can stay a decision until such an appeal is heard.  However, under s 145(4) that power can only be exercised by the “tribunal constituted for the appeal", or if the appeal tribunal has not been so constituted, by "a judicial member".  I assume that Acting Senior Member Paratz was delegated as the appeal tribunal for the purpose of hearing at least the application for a stay.  That is a view shared by Mr Di Carlo, who appears for the applicant.

Section 149 is the provision in the Act which provides that a party can appeal to this court against the decision of QCAT.  However, that right applies only to a party to a proceeding "other than an appeal under division 1": s 149(2).  The applicant is a party to a proceeding, but that proceeding is an appeal under Division 1.

Further, even if the application for stay could be construed as a "proceeding", of its own, for the purposes of s 149(2), which I doubt, that section will still not avail the applicant.  That is because s 149(2) only applies where a, "judicial member", constituted the tribunal in the proceeding.  Mr Paratz is not a judicial member.

Hence s 149(2) does not give the applicant the right to appeal to this court.  Mr Di Carlo urged that s 149(2) should be read down, as it were, in light of the provisions of s 166 of the Act, which governs the constitution of the appeal tribunal.  Under s 166(1), the appeal tribunal is to be constituted for an appeal, or for an application for leave to appeal, by one, two, or three judicial members.

However, subsection (2) of s 166 provides that if the President considers it appropriate for a particular appeal or application for leave to appeal, the President may choose one, two, or three suitably qualified members to constitute the tribunal for appeal.

I would not read the requirement in s 166(1) to mean that the appointment must be and can only be of judicial members.  The plain words of s 166(2) qualify that in some cases the President may consider it appropriate to appoint non-judicial members, but nonetheless, "suitably qualified members", to constitute the appeal tribunal.  Evidently, Mr Paratz was appointed in that capacity.

The foregoing demonstrates that no appeal lies to this Court from the decision of the adjudicator.  Any appeal from the adjudicator must be to the appellate division of QCAT: s 142(3)(a)(i).  Further, there is no right of appeal to this court from the decision on 12 September 2014, as the applicant does not come within s 149(2) of the Act.

Mr Di Carlo urged upon me that even if I came to that view, I should nonetheless have something to say about the merits of the application, as that may be of use elsewhere.  I do not think that is an appropriate course to follow.

Mr Di Carlo also drew attention to the fact that Mr Paratz heard the application for a stay on the papers, and, so it was contended, declined to allow submissions to be made.  That is not apparent from the material put before me, although the directions made on 12 September 2014 indicate the proceeding was an “On-Papers Hearing”.  Any complaint about that should be agitated in QCAT at first instance.

For the reasons that I have given, the application must be dismissed.

In relation to costs, the application has been dismissed, on grounds that don't relate to the merits of the application, but because the applicant cannot bring himself within the provisions entitling an appeal to be made to this court, and thus enlivening the power to grant the stay, pending an appeal or an application for leave to appeal.

Costs normally follow the event unless an order is made to the contrary.  In the circumstances there is no reason not to make an order for costs, although whether that order is then enforced is a matter for the respondent.

In the circumstances I order the applicant to pay the respondent's costs of and incidental to the application, to be assessed on the standard basis.

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Editorial Notes

  • Published Case Name:

    Turnbull v State of Queensland

  • Shortened Case Name:

    Turnbull v State of Queensland

  • MNC:

    [2014] QCA 240

  • Court:

    QCA

  • Judge(s):

    Morrison JA

  • Date:

    24 Sep 2014

Litigation History

Event Citation or File Date Notes
Primary Judgment - - QCAT
Appeal Determined (QCA) [2014] QCA 240 24 Sep 2014 -

Appeal Status

{solid} Appeal Determined (QCA)