Du v INA Operations Pty Ltd No.2
[2024] QCATA 17
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- Unreported Judgment
- Du v INA Operations Pty Ltd No.2[2024] QCATA 17
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Du v INA Operations Pty Ltd No.2[2024] QCATA 17
Du v INA Operations Pty Ltd No.2[2024] QCATA 17
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Du v INA Operations Pty Ltd No.2 [2024] QCATA 17 |
PARTIES: | XI DU (applicant) v ina operations pty ltd (respondent) |
APPLICATION NO/S: | APL027-24 |
ORIGINATING APPLICATION NO/S: | MCD Q5358-23 |
MATTER TYPE: | Appeals |
DECISION MADE ON: | 8 February 2024 |
REASONS DELIVERED ON: | 19 February 2024 |
HEARD AT: | Brisbane |
DECISION OF: | Member Lember |
ORDERS: | The application to stay a decision (correction decision dated 7 February 2024) is refused. |
CATCHWORDS: | APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where a stay is sought of a decision made in the minor civil dispute jurisdiction to correct the address of a property on a decision to terminate a tenancy – where correction decision made during the currency of an application for leave to appeal or appeal – where a decision refusing to stay the termination decision predated the correction decision Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 293, s 350 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 32, s 58, s 134, s 145, sch 3 Australian Securities and Investments Commission v Jorgensen [2009] QCA 20 Cachia v Grech [2009] NSWCA 232 Day v Humphrey [2017] QCA 104 Elphick v MMI General Insurance Ltd & Anor [2002] QCA 347 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 Hessey-Tenny & Anor v Jones [2018] QCATA 131 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Simonova v Department of Housing and Public Works [2018] QCA 60 State of Queensland v Bell [2016] QCATA 176 |
APPEARANCES & REPRESENTATION: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). |
REASONS FOR DECISION
What is this application about?
- [1]Xi Du (‘Du’) seeks leave to appeal a decision made by the Tribunal below on 18 January 2024 to end their tenancy of site T09 at the Brisbane North Rental Village, operated by INA Operations Pty Ltd (‘INA’) (the ‘termination decision’).[1]
- [2]Pending an outcome in that application, Du sought to stay the termination decision by an application that I refused on 1 February 2024.
- [3]On 7 February 2024, the Tribunal below corrected the termination decision by amending the property address referred to therein (the ‘correction decision’).
- [4]On 8 February 2024 I refused an application by Du to stay the correction decision for the reasons that follow.
Factual background
- [5]By an application in a minor civil dispute – residential tenancies dispute filed on 20 November 2023 INA applied to the Tribunal to terminate Du’s tenancy on the grounds of failure to leave under section 293 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘RTRAA’) and for a warrant of possession under section 350(1) of the RTRAA.
- [6]All documents (correspondence, notices, invoices) then before the Tribunal referred to Du’s tenancy as “T09/1420-1432 Gympie Road, Aspley”. Therefore, it was tribunal error, alone, that caused the property addresses to be incorrectly referred to in the termination decision made 18 January 2024, and, again, in an on-the-papers decision made on 19 January 2024 purporting to correct it.
- [7]The decision made on 7 February 2024 finally corrected the property address referred to in the termination decision to what it ought to have been all along: T09/1420-1432 Gympie Road, Aspley.
- [8]Du says that the correction decision was made ultra vires because it was initiated by an application to correct filed by INA when the application for leave to appeal or appeal was already on foot and seeks to stay the correction decision on that basis.
Stays and applications for leave to appeal under the QCAT Act
- [9]Under s 145(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”) the Appeal Tribunal may make an order staying the operation of a decision of the Tribunal below until the appeal is finally decided. However, there is no appeal until and unless leave to appeal has been granted where required.
- [10]Section 58(1) of the QCAT Act permits the Appeal Tribunal to make any interim order it considers appropriate in the interests of justice, including, for example:
- to protect a party’s position for the duration of the proceeding; or
- to require or permit something to be done to secure the effectiveness of the exercise of the tribunal’s jurisdiction for the proceeding.
- [11]A “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”.
- [12]Therefore, an application to stay a decision that falls outside the ambit of s 145 may be considered under s 58 to allow a stay of a primary order in circumstances where leave to appeal has not yet been granted.[2]
- [13]To succeed on a conventional application for a stay, the party applying for the stay must satisfy the Appeal Tribunal that there is a good reason for the stay, including:[3]
- that the applicant has a good arguable case on appeal;
- that the applicant will be disadvantaged if a stay is not ordered; and
- that competing disadvantage to the respondent, should the stay be granted, does not outweigh the disadvantage suffered by the applicant if the stay is not granted.
A good arguable case?
- [14]Importantly, Du has not applied for leave to appeal or to appeal the decision to correct. Du cannot do so in these proceedings because a separate application is required for each decision appealed. The application to stay the correction decision is misconceived in these proceedings on that basis.
- [15]For completeness, however, I observe that Du does not, in my view, have any prospect of being granted leave to appeal the correction decision.
- [16]As stated in State of Queensland v Bell [2016] QCATA 176, [9] “[t]he leave limitation on the right of appeal acts as a filter against unwarranted reconsideration of procedural issues and costs orders in tribunal proceedings.[4] It is one of the mechanisms used to distinguish between those cases that justify the dedication of finite appeal tribunal resources, and those which do not.
- [17]McMurdo JA said in Simonova v Department of Housing and Public Works[5] that “the circumstances must be exceptional before an order in the nature of a stay will be granted, pending an application for leave to appeal”.
- [18]In determining whether to grant leave, the Appeal Tribunal must be satisfied that, relevantly:
- there is a reasonably arguable case of error in the primary decision;[6]
- there is a reasonable prospect that they will obtain substantive relief;[7] and
- leave is needed to correct a substantial injustice caused by the error;[8] or
- there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.[9]
- [19]This is no reasonably arguable case of error in the correction decision, because, whilst section 134(4) of the QCAT Act prevents a party from bringing an application to correct a decision that is the subject of an application for leave to appeal, it does not prevent the tribunal from correcting a decision on its own initiative under section 134(2), even if the tribunal was made alert to the error by an application to correct improperly brought. In fact, it follows that if an application to correct is a nullity, any subsequent decision to correct can only have been made on tribunal initiative.
Balance of convenience
- [20]If I am wrong about that and an error has been made, I am not satisfied that a substantial injustice has been caused by the error (or that the balance of convenience favours Du because):
- Whilst Du suggests that without the correction decision the warrant issued pursuant to the termination decision could not be executed, and, therefore, the correction decision caused Du hardship, prior to the correction decision being made, the Appeal Tribunal had refused Du’s application to stay the termination decision. It had already been determined that Du did not have a good arguable case on appeal for having the termination decision set aside, and, therefore Du had no position to protect pending the outcome of their application for leave to appeal or appeal.
- The tribunal has an obligation of fairness to both parties.[10] Where the correction was necessary solely due to an administrative error on the part of the tribunal and where the error prevents the execution of a warrant it would be manifestly unfair to the respondent to stay the correction decision and, in doing so, to stay the execution of the warrant in respect of which an application to stay has already been refused on its merits before the correction decision made.
Decision
- [21]For those reasons, the application to stay the correction decision was refused.
Footnotes
[1] Application for leave to appeal or appeal filed 23 January 2024.
[2] Hessey-Tenny & Anor v Jones [2018] QCATA 131, [24].
[3] Elphick v MMI General Insurance Ltd & Anor [2002] QCA 347 per Jerrard JA at [8]; Day v Humphrey [2017] QCA 104 per Morrison JA at [5]–[6].
[4] Australian Securities and Investments Commission v Jorgensen [2009] QCA 20, [29] (Keane JA).
[5] [2018] QCA 60, 5.
[6] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[7] Cachia v Grech [2009] NSWCA 232, 2.
[8] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[9] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 577, 580.
[10] QCAT Act, s 3.