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La Macchia v Department Of Housing And Public Works[2015] QCATA 143

La Macchia v Department Of Housing And Public Works[2015] QCATA 143

CITATION:

La Macchia v Department Of Housing And Public Works [2015] QCATA 143

PARTIES:

Anthea Tarna La Macchia

(Applicant/Appellant)

v

Department Of Housing And Public Works

(Respondent)

APPLICATION NUMBER:

APL282-15

MATTER TYPE:

Appeals

HEARING DATE:

11 August 2015

HEARD AT:

Brisbane 

DECISION OF:

Justice Carmody

DELIVERED ON:

Orders delivered on 11 August 2015; reasons delivered on 8 September 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

THE TRIBUNAL ORDERS THAT:

  1. Stay of decision in the Minor Civil Dispute claim number MCD62/15 is refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL  – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCIES – STAY – where the Magistrate issued a termination order and warrant of possession against the applicant – where the applicant filed an application for leave to appeal and appeal – where the applicant sought a stay of the decision on the ground of hardship – whether the applicant established a prima facie arguable case for appellate intervention – whether the applicant adduced evidence in support of its hardship – whether the Appeal Tribunal should grant a stay of the operation of the decision.

APPEARANCES:

APPLICANT:

No appearance

RESPONDENT:

L Fraser for the respondent

REASONS FOR DECISION

  1. [1]
    This is an interlocutory application filed 16 July 2015 for a stay of a decision of a Magistrate exercising the minor civil dispute jurisdiction of the Queensland Civil and Administrative Tribunal in MCD62/15 ordering a warrant for possession against the applicant.  The respondent resists the application on the basis that the Magistrate committed no discernible or material legal, factual or discretionary error.
  2. [2]
    On 11 August 2015 the Appeal Tribunal refused the application to stay the decision ex tempore, but reserved its reasons for decision. 
  3. [3]
    At the outset, it is noted s 148 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) requires the Appeal Tribunal to give its final decision in an appeal, and the reasons for that decision, to the parties in writing.  “Final decision” is defined under Schedule 3 to mean the Tribunal’s decision that finally decides the matters the subject of the proceeding. 
  4. [4]
    The Appeal Tribunal finds that an interlocutory decision to refuse an application to stay the decision of the Tribunal, although it may often render final relief nugatory or futile, is not a “final decision” resolving the matter in dispute because the application for leave to appeal remains in progress.
  5. [5]
    Even if it were a “final decision”, the Appeal Tribunal questions whether it would be necessary to give written reasons for the decision, because it would be a final decision in an application for leave to appeal, rather than in an appeal.  In any event, it is not necessary to resolve this question, as a refusal to stay a decision is clearly an interlocutory, and not final, decision.
  6. [6]
    Therefore, it is not necessary for the Appeal Tribunal to give written reasons. Nevertheless, as this matter frequently arises before the Appeal Tribunal, it is in the public interest to provide written reasons to clarify the position.
  7. [7]
    A successful party is entitled to the fruits of its litigation.  The orders of the original decision-maker are intended to be final, and not merely provisional subject to the applicant initiating an appeal.  This is particularly the case where the applicant requires leave to appeal, and is not entitled to appeal as of right.  Accordingly, the applicant must furnish compelling reasons before the Appeal Tribunal will grant a stay of an original decision.
  8. [8]
    An application to stay the decision of an original decision-maker requires the Appeal Tribunal to be satisfied that: (a) the applicant possesses an arguable case; (b) the applicant will suffer some kind of harm, detriment, prejudice, injury, damage or other disadvantage if the stay is not granted; and (c) the balance of convenience favours granting the stay of the decision.  The failure to establish any one of these elements should result in the refusal of the application to stay the decision. 
  9. [9]
    An “arguable case” requires the applicant to identify that the original decision was infected by, at least prima facie, some legal, factual or discretionary error.  If the applicant requires leave to appeal, the applicant must also establish that it has arguably suffered some kind of substantial injustice as a result of the erroneous decision.
  10. [10]
    “Detriment” requires the applicant to establish that the refusal of the stay will cause some kind of loss, detriment, injury, damage, prejudice or other disadvantage to the applicant.  The applicant must show a logical connection between the refusal to stay the original decision and the relevant detriment relied on. The natural consequences of the order will not ordinarily be enough. However, in an appropriate case, the practical consequences of enforcement of the order may establish the required detriment. 
  11. [11]
    The balance of convenience requires the Appeal Tribunal to consider and weigh the competing rights and interests of the respective parties.  The Appeal Tribunal may consider the following:
    1. the substantive merits of the application for leave to appeal and appeal. 
    2. any loss, detriment, injury, prejudice or other disadvantage caused to the applicant as a result of refusing the application for stay of the original decision, particularly where not remediable by a costs order or monetary award of compensation;
    3. any loss, detriment, injury, prejudice or other disadvantage caused to the respondent as a result of granting the application for stay of the original decision, particularly where not remediable by a costs order or monetary award of compensation;
    4. whether the refusal of the stay would render the appeal futile or nugatory; and
    5. whether, in an appropriate case, the applicant has offered any undertaking or security as to compensation if the application for stay of the original decision is granted and the appeal is dismissed.
  12. [12]
    Certain considerations material to the “balance of convenience” overlap with the requirements of the threshold “arguable case” and “detriment” criteria.  This is because the balance of convenience will require the Appeal Tribunal to consider the cogency of the applicant’s case, rather than merely whether it is “arguable”, and the degree and nature of detriment the applicant might sustain if the application for stay is refused, rather than merely whether any detriment is sustained. 
  13. [13]
    The applicant has raised the following grounds of appeal in her application for leave to appeal and appeal:
    1. the respondent failed to discharge their maintenance obligation;
    2. the rent increases imposed by the respondent were excessive;
    3. the applicant experienced difficulties engaging in effective communication with the respondent;
    4. the respondent failed to discharge certain repairs; and
    5. the costs attributed to maintenance are excessive.
  14. [14]
    The grounds of appeal enumerated by the applicant are beyond the scope of the originating application filed by the respondent.  The applicant failed to file any evidence or other material in support of these assertions in the original or appellate proceedings.  In light of this, it is my preliminary view that the grounds of appeal enumerated by the applicant do not disclose an arguable case that the decision of the Magistrate was infected by any material legal, factual or discretionary error.
  15. [15]
    The applicant has raised the following reasons in support of her application for a stay of the original decision:
    1. the applicant considers the decision to be unwarranted and unfair;
    2. the decision will cause the applicant hardship and homelessness;
    3. homelessness will have an adverse impact on the applicant’s mental health;
    4. the father of the children of the applicant has recently died; and
    5. the applicant’s children will be returning to her care and she requires stable accommodation.
  16. [16]
    The applicant has failed to articulate any reasons for her assertion that the decision of the Magistrate was unwarranted and unfair.
  17. [17]
    The applicant has also failed to adduce evidence in support of each other reason furnished in support of application.  Although I empathise with the hardship experienced by the applicant, in the absence of evidence supporting her contentions, the Appeal Tribunal cannot intervene to stay the operation of the decision of the Magistrate.  Even if such evidence were presented, as the applicant has not articulated any arguable case which would warrant appellate intervention, the Appeal Tribunal would be enjoined to refuse her application to stay the operation of the Magistrate’s decision.
  18. [18]
    The application to stay the decision in the minor civil dispute claim number MCD62/15 is refused. 
Close

Editorial Notes

  • Published Case Name:

    La Macchia v Department Of Housing And Public Works

  • Shortened Case Name:

    La Macchia v Department Of Housing And Public Works

  • MNC:

    [2015] QCATA 143

  • Court:

    QCATA

  • Judge(s):

    Carmody J

  • Date:

    08 Sep 2015

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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