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

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.
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.
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bowie v Gela

Details

AGLC: Bowie v Gela [2022] QCATA 112
Case: [2022] QCATA 112
Decision Date: 29 June 2022

CaseChat Overview and Summary

The case of Bowie v Gela involved a legal dispute between the plaintiff, Bowie, and the defendant, Gela. The nature of the dispute was a request for a stay of proceedings pending an appeal. The matter was heard in the appellate court, which had to determine the appropriate procedure for the stay. The central legal issues were whether there was an arguable case on appeal and whether the balance of convenience favoured a stay. These issues necessitated a thorough examination of the general principles guiding the grant or refusal of a stay of proceedings.

The court considered the fundamental principles for granting or refusing a stay of proceedings. A stay may be granted if there is a specific error identified or if there is a likelihood of success on appeal. The court examined whether the plaintiff had established an arguable case on appeal, which would support a stay. Additionally, the court weighed the balance of convenience, assessing whether the stay would serve the interests of justice. In this case, the plaintiff did not identify any specific error or establish an arguable case on appeal, and the court found that the balance of convenience did not favour a stay.

Consequently, the appellate court concluded that the application for a stay should be refused. The court found that the plaintiff had not demonstrated an arguable case on appeal or provided a basis for identifying a specific error. Furthermore, the court determined that the balance of convenience did not tilt in favour of granting a stay of proceedings. Therefore, the application for a stay was denied, and the proceedings continued as originally planned.

Orders

Orders of the court

The application for a stay is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.