Dash v Hopkins

CITATION:

Dash v Hopkins [2017] QCATA 87

PARTIES:	John Dash (Applicant/Appellant)
v
Rohan Hopkins (Respondent)
APPLICATION NUMBER:		APL162-17

MATTER TYPE:

Applications and Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Carmody

DELIVERED ON:

7 June 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

THE APPEAL TRIBUNAL ORDERS THAT:

1. The application to stay a decision filed 24 May 2017 in Minor Civil Dispute claim number 139/17 is refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – STAY – where the applicant filed an application to stay the operation of the decision – where the applicant failed to file submissions or evidence in support of the application to stay the decision – where the applicant failed to establish a “good arguable case” of vitiating error – whether the application to stay should be granted.

Queensland Civil and Administrative Tribunal Act 2009 ss 32, 122

KG v The Public Trustee of Queensland [2011] QCATA 1

Wheeler & Smith v Body Corporate for Calypso Towers & Anor [2015] QCATA 162

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

The tribunal terminated a tenancy agreement for failure to leave on 3 May 2017. The applicant filed a form 39, an application for leave to appeal or appeal, on 19 May 2017. On 24 May 2017 an application to stay a decision[1] was filed by the applicant. The form 44 stated that the applicant is applying to have the decision stayed because of personal circumstances where the enforcement of the decision “will cause undue hardship on them by having to leave the property without being able to relocate to an alternative property. The decision does not give sufficient consideration to the welfare of the children”.
[1]QCAT Form 44.
On 25 May 2017 I granted an order “suspending the operation of the termination and warrant” and directed the applicant to file submissions and material in support of the application to stay a decision or advise no further material will be filed by 30 May 2017. The applicant did not file further submissions nor did he advise the tribunal of his intention to rely on the filed material.
On 7 June 2017 the tribunal refused the applicant’s application to stay the decision filed 24 May 2017 in Minor Civil Dispute claim number 139/17.
The applicant, within the prescribed time, filed a request that the tribunal give written reasons for the decision.[2]
[2]QCAT Act s 122.
The tribunal was not provided with sufficient evidence to establish the necessary facts relied on by the applicant in support of the stay application.[3]
[3]Wheeler & Smith v Body Corporate for Calypso Towers & Anor [2015] QCATA 162.
The prospects of success, balance of convenience and likelihood of obtaining alternative relief are relevant factors in considering whether to grant a stay of the decision pending appeal.
The applicant has not set out any errors of law or fact, instead, states “… the Magistrate did not take into account the current rental market and my circumstances when setting the date to leave the property”. Mere assertions about the merits or what a decision maker did or did not consider (and how much) will not be enough to establish a “good arguable case” of vitiating error.[4]
[4]KG v Public Trustee of Queensland [2011] QCATA 1, [2]-[3].
Thus, the application to stay the decision was refused for non-compliance with the directions and partly on the assumption that, as often happens, it had been overtaken by events and was no longer being pursued.

The appeal tribunal considered an application by the appellant to stay the operation of a decision made in the lower court. The appellant had filed an application to stay the decision made in a minor civil dispute claim, specifically in the case of Dash v Hopkins. The appellant had not filed any submissions or evidence in support of the application to stay the decision. The tribunal was required to determine whether the application to stay should be granted, given the absence of submissions or evidence from the appellant.

The legal issues before the tribunal were whether the appellant had established a "good arguable case" of vitiating error in the decision, and if the application to stay should be granted in light of the appellant's failure to provide submissions or evidence. The tribunal considered the relevant law on applications to stay decisions and the requirements for establishing a good arguable case. It noted that an applicant must establish that there is a good arguable case of vitiating error for an application to stay to be successful.

The tribunal concluded that the appellant had failed to establish a good arguable case of vitiating error, given the absence of submissions or evidence. The tribunal further held that the appellant's failure to file submissions or evidence in support of the application to stay the decision was a significant factor in its decision not to grant the application. The tribunal found that the appellant had not met the threshold for a successful application to stay the operation of the decision.

The tribunal ordered that the application to stay a decision filed on 24 May 2017 in Minor Civil Dispute claim number 139/17 was refused. The tribunal did not grant the appellant's application to stay the operation of the decision. The tribunal's decision was based on the appellant's failure to establish a good arguable case of vitiating error and the absence of submissions or evidence in support of the application to stay.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established