Bowie v Gela

[2022] QCATA 112

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Bowie v Gela [2022] QCATA 112

PARTIES:

Albert bowie

(applicant\appellant)

v

lucy gela

(respondent)

APPLICATION NO/S:

APL094-18

MATTER TYPE:

Appeals

DELIVERED ON:

29 June 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Oliver

ORDERS:

The application for a stay is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PROCEDURE – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where stay sought pending appeal – where no specific error identified – whether arguable case on appeal – whether balance of convenience favours a stay

Queensland Civil and Administrative Tribunal Act sections 58, 142(3)(a)(i) and 145

Terera & Anor v Clifford [2017] QCA 181
Hessy-Tenny & Anor v Jones [2018] QCATA 131
Virgtel Ltd v Zabusky (no 2) [2009] QCA 349
Day v Humphrey [2017] QCA 104

Cooks Construction Pty Ltd v Stork Food Systems Aust Pty Ltd [2008] 2 Qd R 453

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

1. On 29 June 2022 the Appeal Tribunal made an order dismissing Mr Bowie’s application for a stay of the decision of the Tribunal in relation to a residential tenancy matter. He has now asked for reasons for that decision.

2. On 13 April 2022 the Tribunal made a decision terminating a residential tenancy agreement entered into between Mr Bowie and Ms Gela in respect of residential premises at Badu Island. The Tribunal was exercising jurisdiction under the Residential Tenancy and Rooming Accommodation Act (“the RTRA Act”). Ms Gela gave Mr Bowie a notice to leave in compliance with the RTRA Act, and when he did not leave she brought an application for termination of the tenancy on the grounds of failure to leave under s 293(c) of the Act.

3. Because Ms Gela had complied with the provisions of the RTRA Act in relation to termination, the learned adjudicator had no alternative but the make the orders terminating the tenancy together with the issuing of a warrant for possession.

4. Mr Bowie filed an application for leave to appeal or appeal on 12 May 2022. He also filed the application for a stay. The grounds of appeal do not address any specific error in the application of the RTRA Act to the tenancy. Instead, the grounds make generalised complaints that his rights under the Human Rights Act and the Torres strait Islander Land Act 1991 were infringed because the second respondent, who was added as a party, is the only housing provider in the location. Mr Bowie did not include Torres Straight Regional Council as a respondent to the appeal. He may well have legitimate complaints against the Council, but not in this appeal.

5. It is also relevant that this is an appeal from a decision in the minor civil disputes jurisdiction it is not an appeal as of right. Section 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides that in respect of a decision in a proceeding for a minor civil dispute an appeal may be made only if the party has obtained the appeal tribunal’s leave to appeal. Leave to appeal will usually only be granted when there is a reasonable argument that the decision was attended by error, or an appeal is necessary to correct a substantial injustice caused by the error.[1]

   [1]Terera & Anor v Clifford [2017] QCA 181.

6. Leave to appeal has not been granted and therefore the power to grant a stay is not sourced from s 145(2) of the Queensland Civil and Administrative Tribunal Act but under s 58 which gives the Tribunal a wide discretion to make orders in the interests of justice, which include granting a stay, even though leave to appeal has not been granted.[2]

   [2]           Hessey-Tenny v Jones [2018] QCATA 131 at [24]

7. Therefore, when considering whether leave to appeal would be granted in this case, I have read the transcript of the hearing below which reveals the learned adjudicator gave careful consideration to the application of the RTRA Act. She even adjourned the application to make investigations as to the correct filing date of the application to ensure there was compliance with the RTRA Act in terms of the timing of the filing of the application for a termination order.

8. It must always be borne in mind that a successful litigant is entitled to the fruits of the judgment.[3]

   [3]           Virgtel Ltd v Zabusky (no 2) [2009] QSC 349 at [19]

9. The usual factors to be taken into account in exercising the discretion is whether there is an arguable case on appeal are:

   (a)There is a good arguable case;

   (b)whether the applicant would be materially disadvantages without a stay; and

   (c)whether the balance of convenience favours a stay, in other words whether the disadvantage to the applicant outweighs that to the respondent.[4]

   [4]           Day v Humphrey [2017] QCA 104

10. In respect of the merits of the appeal, by reference to the grounds of appeal and the transcript of reasons for the decision by the learned adjudicator, Mr Bowie has, in my view, some difficulty is establishing that there is a reasonably arguable case of error by the learned adjudicator which would warrant a grant of leave to appeal.[5] The RTRA Act stipulates how an owner can retake possession of their own property where a tenancy agreement has lapsed. Those steps were followed so it is difficult to see how leave could be granted

    [5]           Cooks Construction Pty Ltd v Stork Food Systems Aust Pty Ltd [2008] 2 Qd R 453 at [12

11. Obviously Mr Bowie will be disadvantaged without the benefit of a stay because of what seems to be a shortage of housing on Badu Island. However, Ms Gela will be equally disadvantaged by not having access to her own property. This is especially so when she complied with all of the requirements of the Act.

12. Therefore the balance of convenience favours the refusal of the stay particularly in circumstances where it would appear the appeal has questionable merit.

13. As I am of the view that Mr Bowie has not established that there is a good arguable case the application for stay is refused.