Hessey-Tenny v Jones[2018] QCATA 131

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   These are the reasons for my decision, made on 12 September 2018, that the applicants’ application for a stay pending appeal be refused.
2. [2]
   The primary dispute between the parties arises out of the applicants’ tenancy from the landlord respondent of certain residential premises at Forest Glen.  The tenancy agreement commenced on 31 March 2017 and was due to end on 30 March 2018.
3. [3]
   Prior to the expiration of the tenancy agreement, relations between the parties soured as a result of the applicants’ dissatisfaction with various aspects of the amenities in the property.  The applicants vacated the property before the nominated expiration date of the tenancy.
4. [4]
   It appears on the material before me that the applicants and the respondent attempted unsuccessfully to agree to terms for the applicants’ early vacation of the premises.  The applicants then made a “dispute resolution request” to the Residential Tenancies Authority (“RTA”) pursuant to s 402 of the Residential Tenancies and Rooming Accommodation Act 2008 (“RTRA”).  The RTA then gave the parties notice under s 403(2) of the RTRA that the dispute was not suitable for conciliation. 
5. [5]
   The applicants then commenced proceedings in the Tribunal in the form of a minor civil dispute against the respondent claiming, in effect, for the repayment of bond clean, certain costs and a claim for a 50 per cent reduction in rent already paid.  The total claimed by the applicants was $11,115.30. 
6. [6]
   The respondent lodged a counter-application seeking loss of rent and various other costs, totalling $9,065. 
7. [7]
   The matters came on for hearing on 7 March 2018 before a Magistrate sitting at Maroochydore.  On 4 April 2018, the Magistrate delivered the Tribunal’s decision together with written reasons.  The learned Magistrate:

- rejected a preliminary point which had been argued to the effect that the Tribunal lacked jurisdiction because the conciliation process under the RTRA had not been completed;

- rejected a preliminary argument that the respondent’s counter-application had been made outside the six month limitation period prescribed by s 419(3) of the RTRA;

- dismissed the applicants’ application; and

- allowed the respondent’s counter-application to the extent only of $6,615.50.

8. [8]
   On 19 April 2018, the applicants filed a Form 39 application for leave to appeal or appeal.  By s 142 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”), leave to appeal against the primary decision is required.  The Form 39 filed by the applicants identified the proposed grounds of appeal as follows:

“1. The learned QCAT Member erred in law in finding that the Respondent’s application could be heard in contravention of the mandatory requirement set out at Section 416 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld);

2. The learned QCAT Member erred in fact in finding that the Applicants were at fault when to do so was against the weight of the evidence;
3. The learned QCAT Member erred in law in dismissing the application made under Section 94 of the Act;
4. Failing to apply the principles of Natural Justice and Procedural Fairness as prescribed under Sections 28 and 29 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld); and
5. Such other grounds as become apparent from the transcript of the hearing when it is received.”

9. [9]
   The applicants also sought a stay of the primary decision made by the Magistrate pending appeal, and it is to that application that this decision is directed.
10. [10]
    In the Form 44 application to stay a decision, the applicants identified their reasons for seeking the stay as:

“1. We are simultaneously filing a Form 39 Application for Leave to Appeal or Appeal on the grounds of error of law and fact, subject to amendment upon receipt of the transcript of the hearing;

2. The stay is essential to preserve the subject matter of the appeal, which is the payment of $6615.50;
3. Success on appeal will render the QCAT decision nugatory.”

11. [11]
    In submissions filed in support of the stay application, the applicants raised a further so-called “preliminary issue”, asserting that whilst the tenancy agreement was between the respondent as lessor and the applicants as tenants, real property data information showed that the property is actually owned by a company.  It was asserted that “this is an issue for enforcement of any decision made”.  The applicants did not, however, elaborate on that submission or explain its significance.  The applicants’ claim was premised on a contractual landlord and tenant relationship between the applicants and the respondent.  The applicants themselves commenced and pursued the proceeding against the respondent.  If it be the case (and I do not know because the applicants have not elaborated on this point) that ownership of the property has since changed, it is not clear what this has to do with what is essentially a contractual dispute between the applicants and the respondent.
12. [12]
    The applicants’ submissions then went on to expand on the arguments which the applicants would advance on the proposed appeal, saying that they involve questions of law and fact, and further contending a denial of natural justice and procedural fairness. 
13. [13]
    As to the questions of law and fact, the applicants identified the questions of law as involving the preliminary issues which had been argued before, and rejected by, the learned Magistrate and the questions of fact relating to issues decided by the Magistrate concerning water supply, an issue with the septic tank on the property, and questions of fact in connection with the termination of the tenancy agreement and the applicants’ “liability for damages”.  The submissions also made a number of general allegations of the applicants having been denied natural justice and procedural fairness.
14. [14]
    Having outlined their grounds of appeal, the applicants then averred that an “Appeal is necessary to correct the decision as a substantial injustice will be caused to the Tenant by these errors of law and fact”. 
15. [15]
    The applicants then submitted that a refusal of the stay would render the appeal nugatory.  The applicants’ written submissions stated:

“12. In a practical sense, refusing the stay would render the Tenant subject to enforcement proceedings by the Lessor to enforce the payment of the debt which could be overturned when a decision is handed down by the Appeal Tribunal.

13. The Appeal being successful would be rendered nugatory as the Tenant would have already paid the debt as per the original QCAT decision.”

16. [16]
    The applicants also asserted that they had “demonstrated that there are substantial merits in this matter and a high prospect of success on Appeal which is consistent with granting the stay”.  The grant of a stay in these circumstances, it was argued, was in conformity with the Tribunal’s objects.
17. [17]
    The applicants further contended that a refusal of the stay would disadvantage the applicant more than a temporary loss or inconvenience.  Whilst the applicants did not file any affidavits, statements or other substantive material in support of this stay application, they asserted the following as giving rise to this disadvantage:

“21. The applicant is not in a position to go through enforcement proceedings to have the original decision to pay the debt enforced.

22. The tenant, Richard Hessey-Tenny is a Senior Wealth Adviser at Macquarie Bank and has been in a similar role for the past 25 years.
23. A person in this role is not permitted to have bad debts as they are responsible for other people’s investments and portfolios.”

18. [18]
    Section 145 of the QCAT Act provides:

“145 Effect of appeal on decision

1. (1)
   The start of an appeal under this division against a decision does not affect the operation of the decision or prevent the taking of action to implement the decision.
2. (2)
   However, the tribunal may make an order staying the operation of the decision being appealed against until the appeal is finally decided.
3. (3)
   The tribunal may act under subsection (2) on the application of the appellant or on its own initiative.
4. (4)
   The tribunal’s power to act under subsection (2) is exercisable only by –

1. the tribunal constituted for the appeal; or
2. if the tribunal has not been constituted for the appeal – a judicial member.”

19. [19]
    As a preliminary procedural issue, it should be noted that s 145 is premised on the notion that an appeal has been started.  In that regard, s 145(1) and (2) are the cognate equivalent of r 761 in the Uniform Civil Procedure Rules 1999.  Rule 761 has been construed as not being a source of power for the Court of Appeal to grant a stay in circumstances where leave to appeal is required but has not yet been granted.  In Perovich v ASIC^[1], McPherson JA said at [4]:

“The power of the Court of Appeal to stay a decision under appeal is conferred by r 761(2) of the Uniform Civil Procedure Rules, and is exercisable by a single judge of appeal.  But it relates to a stay of enforcement only of a decision ‘subject to an appeal’.  In Stone v Copperform Pty Ltd [2002] 1 Qd R 106; [2001] QCA 7, I held that the Court or a judge of appeal had no power under r 761(2) to order the stay of enforcement of a decision that was not subject to an appeal, but was subject only to an application for leave to appeal which had not yet been granted.  The decision was later, although in a slightly different context, approved and applied in Bell v Bay-Jespersen [2004] 2 Qd R 235; (2004) QCA 68, by which I am bound.”

20. [20]
    By parity of reasoning, the power of the Tribunal to order a stay under s 145(2) is not available in a case such as the present in which an application for leave to appeal is required and has been applied for, but has not yet been granted.
21. [21]
    The Supreme Court does, however, have inherent jurisdiction to grant a stay in cases in which leave to appeal is required but has not yet been granted.  The availability of such a discretion in the Court’s inherent jurisdiction was referred to, and relied on, by
    McMurdo JA in Simonova v Department of Housing and Public Works.^[2]  After referring to the Court’s inherent power to grant a stay in circumstances where there was not yet an appeal, but only an application for leave to appeal, his Honour said^[3]:

“I accept, as is submitted for the respondent that, in this context, the circumstances must be exceptional before an order in the nature of a stay will be granted, pending an application for leave to appeal.”

22. [22]
    This Tribunal, of course, does not have resort to an inherent jurisdiction such as that possessed by the Supreme Court.  However, s 58(1) of the QCAT Act provides:

“(1) Before making a final decision in a proceeding, the Tribunal may make an interim order it considers appropriate in the interests of justice, including, for example –

 (a) to protect a party’s position for the duration of the proceeding; or

 (b) to require or permit something to be done to secure the effectiveness of the exercise of the tribunal’s jurisdiction for the proceeding.”

23. [23]
    The term “proceeding” is defined in Schedule 3 of the QCAT Act to generally mean “a proceeding before the tribunal, including an appeal before the appeal tribunal and a proceeding relating to an application for leave to appeal to the appeal tribunal”. 
24. [24]
    Having regard to that expansive definition of the word “proceeding” it seems to me that in a case such as the present, which falls outside the ambit of s 145, s 58 is sufficient to confer appropriate jurisdiction on the Tribunal to entertain and, if appropriate, allow a stay of a primary order in circumstances where leave to appeal has not yet been granted.   That being said, as was noted by McMurdo JA, the circumstances must be exceptional before an order in the nature of a stay will be granted, pending an application for leave to appeal. 
25. [25]
    For the reasons which follow, I do not consider that the applicants have demonstrated exceptional circumstances such as to warrant the making of an order in the nature of a stay.
26. [26]
    Nor do I consider that, on an application of the conventional principles relating to the granting of stays pending appeal, the applicants have demonstrated a case for the grant of a stay.
27. [27]
    In Cooks  Construction Pty Ltd v Stork Food Systems Aust Pty Ltd^[4], Keane JA, with whom McMurdo P and White AJA agreed, said^[5]:

“The decision of this Court in Berry v Green suggests that it is not necessary for an application for a stay pending appeal to show ‘special or exceptional circumstances’ which warrant the grant of the stay.  Nevertheless, it will not be appropriate to grant a stay unless a sufficient basis is shown to outweigh the considerations that judgments of the Trial Division should not be treated as merely provisional, and that a successful party in litigation is entitled to the fruits of its judgment.  Generally speaking, courts should not be disposed to delay the enforcement of court orders.  The fundamental justification for staying judicial orders pending appeal is to ensure that the orders which might ultimately be made by the courts are fully effective: the power to grant a stay should not be exercised merely because immediate compliance with orders of the court is inconvenient for the party which has been unsuccessful in the litigation.” (emphasis added)

28. [28]
    In Day v Humphrey^[6], Morrison JA said^[7]:

“[5] An applicant for a stay must demonstrate some reason why a judgment should not be given immediate effect.  The test applicable on an application to stay a judgment pending an appeal is simply expressed as being whether the case is an appropriate one for a stay.             

[6] The test reflects a wide discretion reposed in the Court and authority establishes that there are some traditional factors to be taken into account on the application, namely whether:

1. there is a good arguable case;
2. the applicant will be disadvantaged if the stay is not granted; and
3. there is some compelling disadvantage to the respondent if a stay is granted, which outweighs the disadvantage suffered by the applicant.”

29. [29]
    In the present case, the applicants have articulated grounds of appeal which, if leave be granted, may fairly be regarded as arguable grounds of appeal on matters of law and fact.  In a case in which a preliminary assessment is able to be made that the prospects of success on appeal are poor, then this will obviously weigh against the grant of a stay.  Where, however, an applicant’s case is at least arguable, as in the present case, then the focus of consideration necessarily shifts to questions of competing advantage and disadvantage if the stay be granted or not.^[8]
30. [30]
    As noted above, the applicants’ primary argument in relation to competing advantage and disadvantage is that if a stay is not granted, the proposed appeal will be rendered nugatory.  It was said that this was because any successful appeal by the applicants would be rendered nugatory because they would have already paid the amount ordered under the original QCAT decision.  That is tantamount to the applicants saying:  “If we are given leave to appeal, and if our appeal is successful, then we will have been vindicated.”  Vindication, and the overturning of the primary decision, is the consequence of a successful appeal.  But the applicants’ argument ignores the well-established proposition that the primary decision by the Magistrate was not in any way “provisional”.  It was a final decision and remains so until it is overturned on appeal.
31. [31]
    In Alexander v Cambridge Credit Corp Ltd^[9], the New South Wales Court of Appeal referred to the principle that where there is a risk that an appeal will prove abortive if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of granting a stay.  The Court said that “where it is apparent that unless a stay is granted an appeal will be rendered nugatory, this will be a substantial factor in favour of the grant of a stay”.^[10]  One of the authorities cited by the Court of Appeal for that proposition (which, incidentally, was also cited in the applicants’ submissions) was the 1879 decision of the English Court of Appeal in Wilson v Church (No 2)).^[11]  In that case, the plaintiff was one of many holders of bonds issued by a particular railway company.  There was a large amount of money held in the hands of trustees which, it was said, was due to be returned to the bond holders.  The plaintiff, on his own behalf and on behalf of the many bond holders, brought proceedings and obtained a judgment by which it was effectively ordered that the money should be distributed immediately to the bond holders.  Apart from there being many bond holders to whom the money was liable to be distributed, many of the bond holders lived overseas.  On an application brought to stay the operation of the order for the distribution of the money to the many bond holders pending appeal, one of the issues for the Court of Appeal was whether, if the monies were dissipated to these many bond holders, a successful appeal would be rendered nugatory.  Brett LJ summarised the position as follows^[12]:

“… The Court as a general rule ought to exercise its best discretion in a way so as not to prevent the appeal, if successful, from being nugatory.  That being the general rule, the next question is whether, if this fund were paid out, the appeal, if successful, would be nugatory.  Now it seems to me that, looking at this matter in the view of men of business, one cannot help seeing that if this fund is paid out it is impossible to say to whom it will be paid.  It is quite true that the payments out will be to persons many of whom will never be able to be found; it is very possible, and most likely, that several of them will be abroad; it is most likely that several of them will be in America; and the practical result of paying this money out to the different bond holders, or to the persons who would be holding the bonds at the time, would be that the fund never could be got back again if the appeal were successful.  Therefore, if this case is to be dealt with according to the general rule, it seems to me that the Court ought to stay the payment out of this fund.”

See, to similar effect, the observations of Cotton LJ at 458.

32. [32]
    In order to make good an argument that, without a stay, a successful appeal would be rendered nugatory, the applicants need to do more than say that, if successful, they will have been vindicated.  They need to demonstrate that a successful appeal will be rendered of no value because, for example, the monies which would be liable to be repaid have been dissipated or placed beyond recovery.  There is simply no suggestion of any such circumstance in the present case. The applicants have not demonstrated that a successful appeal would be nugatory in the absence of a stay.
33. [33]
    Beyond that, the only substantive argument raised by the applicants is that, by reason of his professional status, the applicant is not in a position to go through enforcement proceedings.  There is a very short answer to this submission.  Enforcement proceedings would not be necessary if the applicants paid the amount of money they were ordered to pay under the primary decision.  There is no suggestion that the applicants are unable to pay the amount of the decision, nor any material from which it might be gleaned that such a payment would place the applicants under inordinate financial stress.  If the applicants ignore the “non-provisional” nature of the primary decision and choose not to pay the amount ordered and if the respondent then takes enforcement proceedings, that will be a consequence of the applicants’ own decision not to abide by a lawful and binding decision of the Tribunal.
34. [34]
    The applicants have otherwise not pointed to any irremediable harm which they might suffer if the stay is refused. 
35. [35]
    Accordingly, the applicants have failed to demonstrate any relevant disadvantage if the stay is refused.
36. [36]
    In all of those circumstances, on an application of the conventional principles relating to the grant of a stay pending appeal, the applicants have failed to persuade me that a stay should be ordered.  Even less, having regard to the fact that leave to appeal has not yet been granted, have the applicants demonstrated that this is an exceptional case warranting the grant of a stay.
37. [37]
    For these reasons, my decision, as communicated to the parties on 12 September 2018, was that the application for a stay of the learned Magistrate’s decision of 4 April 2018 be refused.