De Iorio v Kemp

[2013] QCATA 41

CITATION: De Iorio v Kemp [2013] QCATA 41

PARTIES:	Mr Peter De Iorio (Applicant/Appellant)
v
Mr Timothy John Kemp t/as Kemp Concreting (Respondent)

APPLICATION NUMBER: APL038-13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Mr Richard Oliver, Senior Member

DELIVERED ON: 21 February 2013

DELIVERED AT: Brisbane

ORDERS MADE: The application for a stay is refused.

CATCHWORDS:

Stay – whether basis for stay – consideration of principles.

Queensland Civil and Administrative Tribunal Act 2009, s 145(2)

Commissioner of Taxation (Cth) v The Myer Emporium Ltd (No 1) (1986) 160 CLR 220;
JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 2) [1983] 2 Qd R 255; Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685.

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. On 4 December 2012 a Tribunal Member, legally qualified, made an order that Mr Di Iorio pay to the respondent $4,864.50.  The claim was made in respect of concreting work carried out by the respondent for Mr Di Iorio. 

1. Mr Di Iorio was dissatisfied with that decision and has filed an application for leave to appeal or appeal.  He also filed an application to stay the Tribunal Member’s decision pending the outcome of the appeal.  This is not unusual however the application for the stay was devoid of any justifiable reason for granting the stay hence it was refused. Mr Di Iorio has now asked for reasons.

1. In his application Mr Di Iorio simply said he wanted to stay the decision “made by an incompetent unqualified non judicial person”.  Although one does not expect well reasoned submissions based on legal authority from a self represented litigant, here there was nothing. His comment about the learned Member did not enlighten me as to why a stay should be granted having regard to the usual principles. 

1. Those principles are well settled and they are that a successful litigant is entitled to the ‘fruits’ of the litigation, a phrase which typically includes a judgment.[1]  While it has been suggested that an applicant for a stay must establish ‘special circumstances’[2] before an order will be made, it has also been said that the discretion is unfettered and that the applicant must demonstrate a basis for a stay, with particular emphasis upon such matters as the balance of convenience, and the competing rights of the parties.[3] 

   [1]Commissioner of Taxation (Cth) v The Myer Emporium Ltd (No 1) (1986) 160 CLR 220 at 222-3 per Dawson J.

   [2]JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 2) [1983] 2 Qd R 255 at 258.

   [3]        Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694-5.

1. As is evident from his documents, Mr Di Iorio did not demonstrate any basis upon which a stay might be granted.  However, rather than confine my consideration to the contents of the stay application I also considered whether or not there was a basis set out in the application for leave to appeal.  The grounds of appeal were unhelpful because once again he did not make any attempt to identify any error in the decision making process by the learned Member.  The grounds of appeal were nothing more than a   vitriolic, insulting and derogatory attack on the learned Member who made the decision.  I won’t descend here to particulars of the descriptive words used by him but all they do is demonstrate that Mr Di Iorio is aggrieved by the decision. Unfortunately, he has not made any attempt to say, in a coherent, logical and sensible way why the decision is wrong. 

1. There was nothing said by Mr Di Iorio in either the application for the stay, or in the application for leave to appeal which would justify a departure from the usual principles surrounding stays, that the respondent is entitled to the fruits of the judgment in the absence of any real prospects of success by Mr Di Iorio on the appeal or that any success on the appeal would render the appeal nugatory. 

1. In a letter to the Tribunal requesting reasons, to which Mr Di Iorio has a statutory right, it is evident that he misconceives that the function of the Appeal Tribunal in that rather than have his appeal determined on the papers, he requests an oral hearing so that he has “an opportunity to cross examine the witnesses making claims and statements”.  The time for cross examination of witnesses and leading new evidence is past.  The appeal is to examine the decision of the learned Member to determine whether or not there is an error of law or whether the conclusions of fact were open on the evidence presented at the hearing.  Another basis upon which leave to appeal, or permission to appeal might be granted is if there was a substantial injustice.  It is not an opportunity to have a rehearing of the original proceeding.  I make these comments to assist Mr Di Iorio so that he has a better understanding of the appeal process. 

1. Those are the reasons why the application to stay the decision made on 4 December 2012 was refused.