Mooney v Rowan Air Pty Ltd[2022] QCATA 185

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This is an application to stay a decision of a magistrate^[1] pending the hearing and determination of an application for leave to appeal and any appeal.  The appellant’s wife applied to the Tribunal on 14 April 2022 using the form for a minor civil dispute – consumer dispute.  This related to the installation by the respondent of a number of air conditioning units in the appellant’s home.^[2]  The original application sought repair of the damage to the home, and replacement of the air conditioning units.  On 8 September 2022 the magistrate ordered the respondent to carry out rectification work on the house as directed by the Queensland Building and Construction Commission (“the QBCC”) within 15 business days. 
2. [2]
   On 19 September the appellant filed an application for leave to appeal to the Appeal Tribunal, and on the same day filed an application to stay the decision.  Directions were given, including for the hearing of the stay application, which has now come before me.  The appellant has made no submissions as to why a stay should be granted, although it follows from his submissions in relation to the application for leave to appeal is that he does not trust the respondent to do a proper job if the rectification is left in its hands.  The respondent has forwarded submissions prepared by a lawyer which do not say anything about the question of a stay, but do raise the question of whether the appellant is a proper party to the proceeding. 

Power to stay

3. [3]
   The first question is whether there is power to stay a decision of the Tribunal pending the hearing of an application for leave to appeal.  The QCAT Act s 145(2) permits the Tribunal to stay the operation of a decision being appealed against until the appeal is finally decided.  It is well established that such wording does not give power to stay pending an application for leave to appeal, but only when there is an appeal as of right, or leave to appeal has been granted: Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd [2019] QCA 276 at p 5.  That decision pointed out that the Court of Appeal can overcome this by relying on an inherent power to grant a stay. 
4. [4]
   Daubney J, the then President of the Tribunal, considered this issue in Hessey-Tenny v Jones [2018] QCATA 131, and held that the necessary power could be found in the QCAT Act s 58(1), which permitted the Tribunal to make an interim order it considered appropriate before making a final decision in a proceeding.  The term “proceeding” is defined in the QCAT Act Schedule 3 as including an application for leave to appeal, and accordingly there is pending in the Tribunal a proceeding commenced by that application in which the Tribunal can grant a stay under s 58(1), even though the proceeding at first instance has been the subject of a final decision.  I agree with this reasoning, and I can therefore hear and determine the application for stay.

Test for grant of a stay

5. [5]
   The fundamental justification for staying judicial orders pending appeal is to ensure that the orders which ultimately might be made by the courts are fully effective.^[3]  Another way of putting it is that a stay is necessary to preserve the subject matter of the litigation.^[4]  The issue of a stay commonly arises in circumstances where there is good reason to believe that, unless the stay is granted, there is at least a substantial risk that the appeal will be rendered futile.  In Cherwell Creek Coal Co (supra) for example, the appeal was to be brought against an order that certain commercially sensitive documents were to be disclosed.  In Jennings Construction (supra) the stay was granted because otherwise, under the order to be appealed against, certain liens would be cancelled and whatever security they gave to the applicant would be lost.  Another situation where a stay may be granted is where there is a judgment for payment of money to someone who is unlikely to be able to repay it if the judgment is set aside. 
6. [6]
   The usual factors taken into account are whether there is a good arguable case, whether the applicant would be materially disadvantaged without a stay, and whether the balance of convenience favours a stay.^[5]  The present situation is unusual, in that the decision sought to be challenged was on its face one that the respondent do something for the appellant.  From the point of view of the appellant however it is not what he wants, because the original work done by the respondent was defective, and he does not trust it to do the work properly this time.

Background

7. [7]
   One of the difficulties I face is that I can locate no reasons for the decision, and the minor civil dispute file seems to contain little information.  The appellant and his wife reside in a home in which the respondent installed five air conditioning units.  One of them later fell off the wall, and spilled liquid, causing (the appellant says) some damage.  Another has partly come away from the wall.  It appears that the problems began to appear in early 2019. 
8. [8]
   In July 2022 an inspector from the QBCC visited the property, and found that in four cases the units had been installed on a plasterboard wall using nylon wall mates, instead of being securely fixed to the wall substrate as required by the installation instructions from the manufacturer.  This was regarded as inadequate fixing by the inspector,^[6] and on 29 July 2022 the QBCC issued a direction to the respondent to rectify in respect of four units.^[7]  The direction is somewhat vague as to what is required, and does not require the damage to the plasterboard to be made good, nor any other damage to the premises.  I can understand the appellants regarding it as inadequate. 
9. [9]
   The inspection report identified the person making the complaint as the wife of the appellant.  The wife was also the person who obtained quotes for rectification work, and she was the person who was identified as the applicant in the application for minor civil dispute filed in the Tribunal; the appellant was identified as her representative.  This appears to have been treated in the local registry as an application by both of them, and the decision identified them both as applicants.  Treating this as a consumer dispute, the issue depends on who was the party to the contract with the respondent, although as far as any question of damage to property is concerned, if the appellant and his wife are co-owners he would have a cause of action with her for damage to it.  In the absence of reasons, I have no idea to what extent (if at all) any of this was explored by the magistrate. 

Consideration

10. [10]
    Another question which arises is whether this dispute should have been commenced as a building dispute rather than as a minor civil dispute.  This was raised in the directions given on 10 October 2022, but contrary to those directions neither party addressed this issue, except for a bald assertion by the respondent that the application was incorrectly filed as a minor civil dispute.  If the dispute is properly a building dispute, the appellant, if an owner, may well have been properly a party to the proceeding, but the matter should not have been dealt with by a magistrate, as their power under s 171(2) is confined to minor civil disputes. 
11. [11]
    If the wrong person has been made a party to the proceeding, either at first instance or on appeal, that is a matter which can be remedied by an appropriate order under the QCAT Act s 42.  Pleas in bar were abolished a long time ago, and there is no reason to think that they were revived in 2009 by the QCAT Act, given that its objects included having the Tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick.^[8]  In any event, this is an issue which will have to be sorted out at some time. 
12. [12]
    Of greater concern is the possibility that the application before the Tribunal may have been heard and determined by a person who did not have power to do so, if it ought really to have been before the Tribunal as a building dispute.  The fact that a particular form was used is also something which can be rectified,^[9] and a direction can be made for the matter to be heard and determined by a Member who is not a magistrate sitting under s 171(2), but that would mean that the existing decision should be set aside, and possibly was a nullity. 
13. [13]
    It also strikes me as curious that such limited relief would be given in circumstances where there was clear evidence of defective workmanship which had damaged the plasterboard walls, and possibly other parts of the property.  On the face of it the respondent should be responsible for making good all damage caused when the unit fell off the wall.  In the absence of reasons, it is hard to know why the magistrate came to this decision, but on the face of it, as a decision on the merits it strikes me as being at least odd.  On the whole, I consider that there is good reason to think that the decision of the magistrate may well be set aside, for one reason or another. 
14. [14]
    As to whether the appellant will be materially disadvantaged without a stay, assuming that he has some interest in the house, on the face of it, if the units are just reattached properly to the walls, it will become more difficult and troublesome to repair the damage to the plasterboard walls, which for some reason was not covered by the QBCC direction.  That strikes me as a material disadvantage, even if a desire not to have the respondent doing any further work on the house does not qualify, as to which I express no opinion.
15. [15]
    As to the balance of convenience, the respondent can hardly object to being relieved of the obligation to carry out the rectification work, although no doubt it would prefer that to paying the sort of damages the appellant seeks.  But if the application for leave to appeal is refused, and it has to do the work, it will be no worse off.  As to the direction of the QBCC, I understand that organisation regards a refusal of the owners of the property to allow access to enable the direction to be complied with as a good reason not to have to comply with the direction.  In the particular, somewhat unusual circumstances of this case, I consider that the balance of convenience favours the grant of a stay. 
16. [16]
    The decision of the Appeal Tribunal is as follows:

    1. (a)
       The decision of the Tribunal of 8 September 2022 in Ingham MCD 4-22 be stayed until the hearing and determination of the application for leave to appeal filed in the Tribunal on 19 September 2022.