Etienne v Hamlet

[2017] QCA 9

[2017] QCA 9

COURT OF APPEAL

PHILIP McMURDO JA

Appeal No 990 of 2017
QCAT No 449 of 2016

SIEGFRIED ETIENNE  Applicant

v

BRUCE HAMLET  Respondent

BRISBANE

WEDNESDAY, 8 FEBRUARY 2017

JUDGMENT

PHILIP McMURDO JA:  This is the further hearing of an application made by Mr Siegfried Etienne for a stay of an order made in the Queensland Civil and Administrative Tribunal last year, which terminated his residential tenancy and ordered the issue of a warrant for the possession of the premises.  He has appealed within QCAT against that decision.  The appeal is the subject of some interlocutory directions, made by a Senior Member, and the appeal is likely to be heard at some time after late March.

Having lodged that appeal, he applied to QCAT in its appellate division for a stay of the original decision, pending appeal.  On 4 January 2017, Senior Member Stilgoe made an interim order suspending the operation of the termination order, and enforcement of the warrant, until further order of the Tribunal.  On 24 January 2017, Senior Member Stilgoe refused to further stay the original decision and the enforcement of warrant.  The application to stay the original decision was then formally refused.

On the following day, 25 January 2017, Mr Etienne applied to Justice Thomas, President of QCAT, for such a stay.  His Honour refused the application, his order records, upon the basis that he lacked jurisdiction.  I do not have any statement of further reasons by his Honour, but it would appear that he declined the application because he was being asked, in effect, to sit on an appeal from Ms Stilgoe’s decision of the previous day, which, as I have said, was made in the appellate division of QCAT.  There is no demonstrated error on his Honour’s part, and Mr Etienne’s challenge must be one, if it can be made, to the decision of Ms Stilgoe, which refused him his stay pending appeal.

I do not have a statement of reasons from Ms Stilgoe for that decision, but it is Mr Etienne who, in this Court, must establish at least an arguable basis for this Court reviewing that decision of 24 January, and, in effect, he must argue that the decision made by Ms Stilgoe was one which could not have been made by the proper exercise of her discretion.

It does not appear, there being no statement of reasons, that Ms Stilgoe took the view that Mr Etienne’s appeal against the original decision was unmeritorious; at the same time that she refused the stay pending appeal, she made directions for the progress of the appeal.  Assuming that she was not of the view that the appeal was without merit, the discretion which she had to exercise was one which required a balancing of competing interests: on the one hand, Mr Etienne’s facing eviction from his residence, which, for any person, particularly a person such as Mr Etienne, who is relatively old and in poor health it seems, is a very important consideration; on the other hand, there was a strong objection by the respondent, who is the building manager of the apartment where Mr Etienne has been living, to his remaining in possession, having regard to the background of this dispute.

Importantly, the original decision for the termination of the tenancy was made upon the basis of what was found to be Mr Etienne’s objectionable behaviour.  Now, it must be said at once that the finding in that respect is to be challenged in Mr Etienne’s appeal in QCAT.  But for Ms Stilgoe, it was presumably not clear that that finding was in error, and if she was unable to reach a clear view as to who would succeed in the appeal, then the exercise of her discretion was one which required a balancing of those two important interests.  It was open, in those circumstances, to Ms Stilgoe to refuse to further stay the enforcement of the original decision, and, in particular, the warrant which issued as a result of it.

In other words, Mr Etienne has not demonstrated, in this Court, that there was any arguable error made by Ms Stilgoe, or, for that matter, as I have endeavoured to explain, Justice Thomas.  There is therefore no basis upon which this Court could intervene by granting a stay as Mr Etienne seeks by this application, and his application filed in this Court must be refused.