Armstrong v Triple One Group Pty Ltd t/a Robert James Realty
[2016] QCATA 42
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Armstrong v Triple One Group Pty Ltd t/a Robert James Realty[2016] QCATA 42
- Add to List
Armstrong v Triple One Group Pty Ltd t/a Robert James Realty[2016] QCATA 42
Armstrong v Triple One Group Pty Ltd t/a Robert James Realty[2016] QCATA 42
CITATION: | Armstrong v Triple One Group Pty Ltd t/a Robert James Realty [2016] QCATA 42 |
PARTIES: | Gary Armstrong (Applicant) v Triple One Group Pty Ltd t/a Robert James Realty (Respondent) |
APPLICATION NUMBER: | APL113-16 |
MATTER TYPE: | Appeals |
HEARING DATE: | On the Papers |
HEARD AT: | Brisbane |
DECISION OF: | Justice DG Thomas, President |
DELIVERED ON: | 8 June 2016 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where applicant brought appeal proceedings against decision of the Appeal Tribunal to refuse stay designated APL113 – 16 – where the Appeal Tribunal was constituted by a Judicial member – whether Appeal Tribunal has jurisdiction to hear appeal of Appeal Tribunal Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 3(c), 32, 142, 142(1), 149(2) Mobile Building System International Pty Ltd v Hua [2014] QCATA 336 Reihana v Beenleigh Show Society [2015] QCATA 170 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
REASONS FOR DECISION
Background
- [1]The applicant, Gary Armstrong, initially applied to the Tribunal to appeal the issuing of a warrant of possession over a property he was renting on 18 March 2016. The warrant of possession was ordered due to an alleged failure by Mr Armstrong to comply with a Form 12 Notice to Leave issued by the respondents, Robert James Realty, in December 2015.
- [2]Mr Armstrong also filed an application to stay the decision to order the warrant, which was heard and refused by Carmody J on 1 April 2016.
- [3]Acting on the advice of the Noosa Registry, Mr Armstrong sought to appeal the refusal of the stay made by Carmody J. He filed an application for leave to appeal the stay refusal and an application to stay the stay refusal, which was designated APL113-16 by the Noosa Registry.
- [4]Mr Armstrong seeks to appeal to an Appeal Tribunal the decision of the Appeal Tribunal constituted by a Judicial Member. The following reasons address those applications.
Appeals from a Judicial Member
- [5]The first issue which Mr Armstrong faces in his application to appeal is that the matter was heard by a supplementary Judicial Member of the Tribunal.
- [6]Pursuant to section 142 of the QCAT Act, the decisions of Judicial Members cannot be appealed to the Appeal Tribunal.
- [7]Section 142(1) of the QCAT Act relevantly provides:
142 Party may appeal
- A party to a proceeding may appeal to the appeal tribunal against a decision of the tribunal in the proceeding if a judicial member did not constitute the tribunal in the proceeding (emphasis added)
- [8]Further, section 149(2) of the QCAT Act provides that appeals of Appeal Tribunal decisions in which the Appeal Tribunal was constituted by a Judicial Member must be made to the Court of Appeal.
- [9]In this case, Carmody J heard and refused the application to stay the decision from which Mr Armstrong now seeks leave to appeal to the Appeal Tribunal. Carmody J is a supplementary Judicial Member of QCAT and therefore an appeal cannot be made to the Appeal Tribunal. Such an appeal correctly lies in the Court of Appeal.
- [10]Thus, the QCAT Appeal Tribunal lacks the jurisdiction to hear the appeal the subject of Mr Armstrong’s application.
Appeals to the Appeal Tribunal from the Appeal Tribunal
- [11]Even if the Appeal Tribunal were not constituted by a Judicial Member, an appeal of this nature faces the issue that Mr Armstrong seeks to appeal the decision of an Appeal Tribunal to an Appeal Tribunal. This raises the preliminary jurisdictional question of whether the Appeal Tribunal can hear and determine applications for leave to appeal from an Appeal Tribunal.
- [12]The Appeal Tribunal has considered this question in a number of recent cases, such as Mobile Building System International Pty Ltd v Hua [2014] QCATA 336 and Reihana v Beenleigh Show Society [2015] QCATA 170. In those decisions, the Appeal Tribunal found that it lacked jurisdiction to hear and determine applications for leave to appeal from the Appeal Tribunal.
- [13]These decisions are correct in application and should be followed to ensure certainty and predictability of Tribunal decisions.[1]
- [14]Thus, the QCAT Appeal Tribunal lacks the jurisdiction to hear the appeal the subject of Mr Armstrong’s application.
Orders
- [15]For the reasons above, the Tribunal makes the following orders:
- The application for leave to appeal is refused.
- The application to stay the decision is dismissed.
Footnotes
[1] QCAT Act s 3(c).