State of Queensland v Mizner
[2022] QCATA 149
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- Unreported Judgment
- State of Queensland v Mizner[2022] QCATA 149
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State of Queensland v Mizner[2022] QCATA 149
State of Queensland v Mizner[2022] QCATA 149
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | State of Queensland v Mizner [2022] QCATA 149 | ||
PARTIES: |
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v | |||
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APPLICATION NO/S: | APL175-22 | ||
ORIGINATING APPLICATION NO/S: | ADL004-22 | ||
MATTER TYPE: | Appeals | ||
DELIVERED ON: | 11 October 2022 | ||
HEARING DATE: | On the papers | ||
HEARD AT: | Brisbane | ||
DECISION OF: | Senior Member Brown | ||
ORDERS: | The application for leave to appeal or appeal filed 15 June 2022 is dismissed. | ||
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – FROM INTERLOCUTORY DECISIONS – LEAVE TO APPEAL – whether the Tribunal failed to take into account relevant considerations – whether the Tribunal afforded the applicant procedural fairness – whether leave to appeal is necessary to correct a substantial injustice – whether the appeal raises a question of general public importance – whether a serious question is to be tried – whether the Tribunal had sufficient material – whether the learned member erred in granting an interim order – whether the Tribunal considers the proceeding to be frivolous, vexatious, misconceived, or an abuse of power. Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 47, s 142 King v Lintrose Nominees Pty Ltd & Ors; Hopkins v King [2001] VSCA 140. Pickering v McArthur [2005] QCA 294. Rigney v Littlehales and Ors [2005] QCA 252. | ||
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REASONS FOR DECISION
- [1]The applicant (the respondent in the proceeding below) has appealed an interlocutory decision of the Tribunal in proceedings brought by the respondent (the applicant in the proceeding below) for discrimination.
- [2]The respondent is serving a prison term. On 6 May 2022 the Tribunal made an order prohibiting the applicant from placing the respondent in a dual occupancy cell pending the determination of an application for an interim order filed by the respondent on 5 May 2022. The decision under appeal was, in effect, an ‘interim’ interim order. I refer to the order in the past tense as subsequent events have overtaken the decision.
- [3]On 6 July 2022 the Tribunal vacated the interim order and made a further interim order in virtually identical terms to the order made on 6 May 2022. The order made 6 July 2022 is the subject of a separate appeal (the second appeal proceeding).
- [4]It might therefore be thought that there is little utility in the present appeal, the interim order having been vacated and therefore of no effect. The operative decision is that made on 6 July 2022. With this in mind, the Appeal Tribunal made directions on 14 July 2022 for the parties to file and exchange submissions addressing whether the application for leave to appeal or appeal should be dismissed pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). The parties have filed their submissions and the question of whether the appeal should be dismissed falls to be determined.
The decision under appeal
- [5]As I have noted, the respondent in this appeal, the applicant in the proceeding below, is serving a term of imprisonment.
- [6]The relevant factual background to the filing of the application for interim order may be summarised as follows:
- (a)The single occupancy cells at the correctional centre where the respondent was incarcerated were being renovated over a period of time to house dual occupants;
- (b)The respondent was housed in a single occupant cell;
- (c)The respondent was advised that his cell was to be converted to a dual occupancy cell;
- (d)The respondent advised the applicant of his concerns at being housed in a dual occupancy cell;
- (e)On 1 May the applicant was moved to temporary accommodation within the correctional centre until the renovations on his cell had been completed;
- (f)The anticipated completion date of the renovations was 8 or 9 May;
- (g)On 5 May, while in the temporary accommodation and prior to being returned to his renovated, dual occupancy, cell the respondent filed the application for an interim order.
- (a)
- [7]On 6 May the Tribunal made an order suspending the operation of any decision by the applicant to move the respondent to a dual occupancy cell pending the determination of the application for interim order. Directions were made by the Tribunal for the parties to file and serve submissions. The application was to be determined on the papers after 12 May.
- [8]The learned member found:
- (a)The application was required to be determined as a matter of urgency;
- (b)The respondent was at risk of physical and mental harm;
- (c)It was in the interests of justice for an order to be made on an interim basis to protect the respondent from possible harm until the application for an interim injunction could be considered and determined.
- (a)
The grounds of appeal
- [9]The applicant relies upon two grounds of appeal:
- (a)Ground 1 – the Tribunal failed to take into consideration relevant considerations when making the interim order. The applicant says that the learned member failed to consider whether it was ‘just and convenient’ to make the order. The applicant says that the learned member failed to take into consideration:
- Whether there was a serious question to be tried;
- Whether damages were an adequate remedy;
- Whether the balance of convenience favoured the grant of an interim order;
- The impact of the decision on the applicant’s ability to exercise its powers in the management of the correctional centre and the inmates of the centre.
- (b)Ground 2 – the Tribunal did not afford the applicant procedural fairness, deciding the application on the papers based solely on the respondent’s material.
- (a)
The present application
- [10]The respondent has applied to dismiss the appeal. The respondent says:
- (a)There are no grounds for granting leave to appeal the decision to grant the interim order;
- (b)The appeal cannot correct a substantial injustice;
- (c)The appeal does not raise a question of general importance and is not in the public interest;
- (d)The appeal lacks merit.
- (a)
- [11]The respondent says that leave to appeal should not be granted. The respondent says that there is no substantial justice to correct and, if the appeal is allowed, the decision is no longer capable of being set aside and, in the alternative, setting aside the decision would have no practical effect.
- [12]The respondent says that there is no question of general importance warranting the grant of leave. The respondent says the reasons for the decision have not been published on the Supreme Court Library website and that the issue of the granting of interim orders in the circumstances of the present case will be considered by the Appeal Tribunal in the second appeal proceedings.
- [13]The respondent says that it is not in the public interest for leave to appeal to be granted noting that the parties are publicly funded. The respondent says that the appeal is inconsistent with the functions of the tribunal in s 4 of the QCAT Act which require the tribunal to encourage the economical resolution of disputes and minimise cost to parties.
- [14]In response, the applicant says:
- (a)The appeal does not lack substance. In this regard the applicant relies upon the grounds of appeal referred to above;
- (b)The appeal raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to public advantage.
- (a)
- [15]The applicant says that the status of the Tribunal as a court of record renders it undesirable that the Tribunal’s record should contain an order beyond jurisdiction. The applicant says that a closer examination of the applicable law and the facts may reasonably be expected to add colour and content to the application and development of legal principle. The applicant says that in the present case the relevant legal principles relate to questions of law and the denial of procedural fairness which are in the public interest to resolve as the Tribunal’s resources serve the public as a whole, not just the parties to the proceedings.
- [16]The applicant says that it will suffer disadvantage if the decision is not tested on appeal as there are potential implications for the applicant and others of a precedent whereby an interim order is made on an ex parte basis.
The appeal framework
- [17]
- [18]Leave to appeal will usually be granted only where an appeal is necessary to correct a substantial injustice to the applicant and there is a reasonable argument that there is an error to be corrected.[3] Leave to appeal may also be granted if the appeal raises a question of general public importance.
Section 47 of the QCAT Act
- [19]Where the tribunal considers a proceeding or part of a proceeding brought by an applicant to be frivolous, vexatious or misconceived; or lacking in substance; or otherwise an abuse of process, the tribunal may order the proceeding or part be dismissed or struck out.[4]
- [20]The Tribunal may act under s 47(2) of the QCAT Act on the application of a party to the proceeding or on the Tribunal’s own initiative.
- [21]The power conferred upon the Tribunal by s 47 of the QCAT Act is in the nature of a summary judgment power. The Tribunal will hasten slowly to deprive a party of their opportunity to argue their case at a final hearing. Only in the clearest of cases will a proceeding by an applicant be summarily dismissed.
Consideration
- [22]It should be noted at the outset that the applicant says the learned member’s reasons for decision do not reveal a consideration of the relevant requirements for the granting of interlocutory relief pursuant to s 58 and s 59 of the QCAT Act. In approaching whether leave to appeal an interlocutory decision should be granted, attention is directed to the decision and not the reasons for decision.[5]
- [23]I do not accept the submission by the applicant that the learned member heard and decided the application on an ex parte basis. As the learned member’s reasons set out, the application was referred by the Tribunal Registry to the Tribunal late on 6 May 2022. In its submissions the first applicant says that it was notified by an associate to a Senior Member of the Tribunal that the application had been filed. The associate spoke with a lawyer with Crown Law who informed the associate that the first respondent did not consent to the application. The lawyer communicated a number of submissions to the Senior Member’s associate. In the submissions in the present application, the first applicant says it did not have formal instructions and would have to seek instructions from the applicants. It is not clear whether the lawyer had at that time seen the application. It seems likely that they had noting the considered nature of the submissions communicated to the Senior Member’s associate.
- [24]As I noted earlier, an appeal against an interlocutory decision of the Tribunal may only be made with leave. The relevant considerations in determining whether to grant leave to appeal are well established. An application for leave to appeal from an interlocutory judgment will usually be refused unless the decision from which it is sought to appeal is attended with sufficient doubt to warrant its being reconsidered and also that, accepting it is wrong, substantial injustice would result if leave were refused.[6]
- [25]On or about 1 May the applicant was transferred from his single occupant cell to temporary accommodation in another unit and was required to sleep on the floor of the common area, while waiting for his cell to be renovated. Prior to this, on 26 April 2022, in an email from his legal representatives to the correctional centre authorities the applicant sought advice as to whether, following the proposed renovation of his cell to a two person cell, he would be required to share the cell with another inmate.[7] In the communication of 26 April the applicant’s legal representatives set out the medical conditions suffered by the applicant including post-traumatic stress disorder, borderline bipolar personality disorder and comorbid bipolar personality disorder, autism spectrum disorder and acquired brain injury. The communication outlined the characteristics of the identified impairments[8] and advised that the prospect of sharing a cell was causing the applicant significant distress. The communication requested the correctional facility authorities have regard to the respondent’s circumstances and make reasonable adjustments to accommodate his disabilities by not placing him in doubled up accommodation.
- [26]At the time the application for interim order was filed there had been no response from the correctional facility authorities to the 26 April 2022 communication.
- [27]In my view, there were grounds to make the interim order. Firstly, there was sufficient material before the Tribunal to permit the learned member to conclude that there was a serious question to be tried. The respondent had filed a statement of contentions in which he articulated a claim for indirect discrimination.
- [28]There was also sufficient material before the Tribunal establishing that there was an urgency attaching to the determination of the application. The respondent had filed an affidavit by his solicitor exhibiting, inter alia, the various complaints by the respondent regarding his accommodation. Of significance, there was also a letter from the respondent’s treating psychiatrist referring to the respondent’s medical history and supporting the respondent’s request not to share a cell. It was open to the learned member to infer that there was a potential for the respondent to be adversely affected should he be required to share a cell with another inmate.
- [29]As to balance of convenience considerations, again, it was open to the learned member on the material before the Tribunal to form the view that the risk of adverse medical consequences to the respondent if the interim order was not made outweighed any adverse consequences to the applicant if the interim order was made. As to the latter, these would appear to be confined to operational considerations. In the circumstances outlined above it was also open to the learned member to find that damages would not be an adequate remedy. While damages might compensate the respondent for loss as a consequence of his impairment being exacerbated, it was open to the learned member to form the view that preventing the occurrence of the exacerbation could only be achieved by granting the interim order.
- [30]In circumstances where the learned member was satisfied that the respondent had a prima facie case of indirect discrimination; there was a risk of harm to the respondent if he was moved to a dual occupancy cell with another inmate which risk outweighed the potential adverse consequences for the applicant if the interim order was made; and where it was open to the learned member to find that damages would not be an adequate remedy, there was in my view no error by the learned member in granting the interim order.
- [31]The applicant says that the learned member erred in not affording it procedural fairness. For the reasons I have outlined, the learned member was entitled to proceed on the basis that the application required urgent determination. The views of the applicant were sought. The order made by the learned member maintained the status quo until the parties had been given the opportunity to make detailed submissions and the application for interim order could be finally determined. Seen against this background, the interim order made by the learned member on 6 May 2022 was of a strictly limited nature. It follows that any adverse consequences for the applicant as a result of the making of the order were of a limited duration. As events transpired, the interim order was vacated two months after it was made, and a further interim order made.
- [32]Taking all of these matters into consideration the applicant’s prospects of success in the appeal are, in my view, poor.
- [33]In my view it is unlikely that leave to appeal will be granted. Firstly, and as I have observed, the applicant’s prospects of success in the appeal are poor. Secondly, even if the decision was attended by error, leave to appeal is not required to correct a substantial injustice. The decision under appeal has ceased to have operative effect and cannot be reversed even if the appeal is successful. Thirdly, the appeal raises no question of public importance. The principles in relation to the granting of urgent interim relief are well settled. The present appeal raises no new matters of principle, nor could it be said that the application of the established principles by the learned member was manifestly perverse.
Conclusion
- [34]A proceeding may be dismissed if the Tribunal considers the proceeding or part thereof to be frivolous, vexatious or misconceived, lacking in substance or otherwise an abuse of process. In my view, and for the reasons set out, there is no basis upon which the applicant is likely to succeed in being granted leave to appeal. As such the application for leave to appeal or appeal lacks substance.
- [35]The appropriate order is that the application for leave to appeal, or appeal filed 15 June 2022 is dismissed.
Footnotes
[1] Queensland Civil and Administrative Tribunal 2009 (Qld) s 142(1) (‘QCAT Act’).
[2] Ibid. s 142(3)(a)(ii).
[3] Pickering v McArthur [2005] QCA 294.
[4] QCAT Act, s 47(1), s 47(2)(a).
[5]King v Lintrose Nominees Pty Ltd & Ors; Hopkins v King [2001] VSCA 140.
[6] Rigney v Littlehales and Ors [2005] QCA 252.
[7] Affidavit of Brittany Smeed, filed 6 May 2022.
[8] Including difficulty sleeping, sensitivity to light and noise disturbances when sleeping, adjustment difficulties including difficulties sharing sleeping quarters with other people, exacerbation of mental illness symptoms and seizures when deprived of sleep, seizures, nervous and endocrine problems, intrusive recollections/flashbacks and nightmares, hypervigilance, emotional hyperarousal, mood swings and panic attacks.