Gapes v Magistrate Baldwin[2022] QCA 191

[2022] QCA 191

COURT OF APPEAL

MULLINS P

DALTON JA

BODDICE J

In Appeal No 8280 of 2022

SC No 80 of 2022

SONYA LESLEY GAPES Applicant

v

MAGISTRATE BALDWIN First Respondent

STATE OF QUEENSLAND Second Respondent

In Appeal No 8320 of 2022

SC No 138 of 2022

SONYA LESLEY GAPES Applicant

v

MAGISTRATE LUXTON First Respondent

STATE OF QUEENSLAND Second Respondent

In Appeal No 8321 of 2022

SC No 126 of 2022

SONYA LESLEY GAPES Applicant

v

MAGISTRATE MACK First Respondent

STATE OF QUEENSLAND Second Respondent

BRISBANE

THURSDAY, 6 OCTOBER 2022

JUDGMENT

1. [1]
   MULLINS P:  Ms Gapes sought the leave of the Court of Appeal pursuant to s 15(4) of the Judicial Review Act 1991 (Qld) (the Act) to appeal against the order of the learned primary judge made on 10 June 2022 pursuant to s 13 of the Act dismissing each of Ms Gapes’ applications for statutory orders of review in proceedings SC No 80 of 2022 (S80), SC No 126 of 2022 (S126) and SC No 138 of 2022 (S138).  Each of these proceedings concerned decisions made in connection with terminations of tenancies under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTA).  This Court exercises its civil jurisdiction in hearing an application for leave to appeal under the Act.
2. [2]
   The applications for leave to appeal were reviewed by me on 25 August 2022.  In each application, the named first respondent was excused from further participation in the application for leave to appeal unless notified otherwise by the Registrar.  Paragraphs 3 and 4 of each application for leave to appeal were struck out which limits the relief that is sought on each application for leave to appeal and costs against the first and second respondents.  I also ordered that the hearing on 6 October 2022 be limited to the applications for leave to appeal.
3. [3]
   Ms Gapes’ submissions in this Court show that her grievances are much wider than the decisions made by the three magistrates (and Ms Koch) in S80, S126 and S138.  This Court’s civil jurisdiction is constrained by the subject matter that is before it properly on the application and it is not for the Court to embark on a wider inquiry than is necessary to deal with the applications for leave to appeal.
4. [4]
   The decisions made by each of the magistrates and a decision made by Ms Koch, a clerk employed at the Queensland Civil and Administrative Tribunal (QCAT) that were the subject of the applications before the primary judge were summarised by the primary judge in the ex tempore reasons given on 10 June 2022.  The second respondent had before the primary judge relied on an affidavit of its lawyer that exhibited the two relevant QCAT files.  The impugned decisions can be briefly described as follows.
5. [5]
   Proceeding S80 arose out of two orders made by Magistrate Baldwin on 13 December 2021 sitting as a member of QCAT.  Ms Gapes was present for the hearing and the sealed order of QCAT shows that at least the order terminating the residential tenancy agreement between the landlord and Ms Gapes as the tenant as from midnight on 3 January 2022 on the ground of failure to leave was made by consent.  The second order made by Magistrate Baldwin was to issue a warrant of possession authorising a police officer to enter the subject premises with the warrant to take effect on 3 January 2022 and remain in effect for 14 days to expire at 6.00 pm on 17 January 2022.  The warrant was executed on 5 January 2022 with Ms Gapes leaving the property on that date.
6. [6]
   S126 arose out of Ms Gapes’ attempt on 19 January 2022 to file an application to strike out the QCAT proceeding in respect of which the final orders had been made on 13 December 2021 on grounds including that the warrant had been issued illegally.  The delegate of the principal registrar of QCAT, Ms Koch, refused to receive the application on the basis that there was no proceeding then on foot and there was nothing to strike out or dismiss, as the warrant had been executed and all that remained were appeal rights.  The primary judge observed that Ms Koch’s decision seemed to be the correct decision.  Instead Ms Gapes applied to QCAT on 31 January 2022 to stay the decision in the proceeding.  Magistrate Mack refused the application on 1 February 2022 on the papers on the basis that no valid or coherent reason was supplied for making the application.  The decisions of both Ms Koch and Magistrate Mack were challenged in S126.
7. [7]
   S138 arose out of a proceeding under the RTA in relation to another property owned by the same landlord that was rented to Ms Gapes’ mother and to which Ms Gapes relocated on 5 January 2022 after leaving the property in respect of which her tenancy had been terminated.  Ms Gapes’ mother appeared by telephone on the application and both she and Ms Gapes gave evidence.  Ms Gapes’ mother was not concerned about the termination of the tenancy and wanted to ensure that she had sufficient time to organise removal of their possessions from the property. Magistrate Luxton exercising jurisdiction as a member of QCAT disposed of the landlord’s application for termination of the tenancy agreement from midnight on 10 February 2022 on the ground of failure to leave and ordered that a warrant of possession issue authorising a police officer to enter the subject premises to take effect on 16 February 2022 and remain in effect for 14 days to expire at 6.00 pm on 2 March 2022.
8. [8]
   Although the primary judge was unsure of how Ms Gapes had any standing to challenge the orders made against her mother, Ms Gapes clarified at the review hearing on 25 August 2022 that she was in possession of the property rented by her mother when the warrant was executed.  The primary judge did note in the reasons that Ms Gapes did not dispute that the landlord was entitled, on giving proper notice, to terminate the tenancy agreements and that Ms Gapes did not mount any positive case that she was entitled to retain possession of either property.
9. [9]
   In accordance with the submissions made by the second respondent, the primary judge disposed of the applications on the basis that the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) provided Ms Gapes with appeal rights following the QCAT decisions made by each of the magistrates or at least provided for her to apply for leave to appeal.  The primary judge held that it was in the interests of justice for parties who are aggrieved by decisions of QCAT to appeal those decisions rather than pursuing the decision makers personally as Ms Gapes had done in proceedings S80, S126 and S138.  The primary judge also considered that the decisions of the magistrates did not appear to be decisions of an administrative character, but that was not the point taken by the second respondent.  In fact, an even easier route to dismissal of the applications for statutory orders for review is s 156 of the QCAT Act which expressly excludes part 3 of the Act dealing with statutory orders of review to a decision or to the conduct of QCAT in a proceeding other than to the extent the decision or conduct is affected by jurisdictional error.  No jurisdictional error was asserted by Ms Gapes.
10. [10]
    Arguably, Ms Koch’s decision to refuse to receive the application filed on 19 January 2022 was a decision in respect of an administrative character.  The primary judge disposed of that part of the application effectively on the basis it was the correct decision.
11. [11]
    On the applications in this Court, Ms Gapes makes many sweeping allegations against a variety of parties, including those not involved in S80, S126 or S138.  Allegations are made against the Crown Solicitor, various judicial officers and the Department of Justice.  Much of the material in Ms Gapes’ affidavit and submissions is irrelevant to the impugned decisions that were before the primary judge.
12. [12]
    To the extent that s 156 of the QCAT Act applied to decisions of the magistrates under review by the primary judge, the primary judge did not err in dismissing the applications.  There was no error in dismissing S126 to the extent that it related to Ms Koch’s decision.
13. [13]
    The interests of justice are not served by granting Ms Gapes leave to appeal against the primary judge’s decision which could not have any different result on an appeal.
14. [14]
    In each proceeding, I would order that the application for leave to appeal is refused.
15. [15]
    DALTON JA:  I agree.
16. [16]
    BODDICE J:  I agree.
17. [17]
    MULLINS P:  The order of the Court is, in each proceeding, the application for leave to appeal is refused.