Face 2 Face Foundation Pty Ltd v Brisbane City Council

[2014] QCATA 97

CITATION: Face 2 Face Foundation Pty Ltd & Anor v Brisbane City Council [2014] QCATA 97

PARTIES:	Face 2 Face Foundation Pty Ltd and Christopher Newton (Applicants)
v
Brisbane City Council (Respondent)

APPLICATION NUMBER: APL152-14

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Dr Forbes, Member

DELIVERED ON: 24 April 2014

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The orders of this tribunal made on 18 March 2014 are stayed, and proceedings in QCAT application APL152-14 are adjourned until determination by the Supreme Court of Queensland of Application 6566 of 2013, between Christopher Graeme Newton (applicant) and the Brisbane City Council (respondent), filed on 22 April 2014, or until further or other order of this Tribunal.

CATCHWORDS:

MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – where objection to jurisdiction – whether agreement constitutes a residential tenancy within jurisdiction of QCAT – where warrant of possession granted – where application for leave to appeal and application for stay of decision – where cognate application before Supreme Court – whether stay should be granted and application for leave to appeal adjourned pending decision of Supreme Court

Queensland Civil and Administrative Tribunal Act 2009 s 32
Residential Tenancies and Rooming Accommodation Act 2008 ss 11, 12, 341

Boyd v Halstead; ex parte Halstead [1985] 2 Qd R 249
Halabi v Westpac Banking Corporation (1989) 17 NSWLR 26
John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351
Johns and Waygood Ltd v Utah Australia Ltd [1963] VR 70
Martin, Re; ex parte Dipane (2005) 30 WAR 164
Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16
Trivett v Nivison [1976] 1 NSWLR 312

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

1. The applicants (“Face 2 Face”) seek a stay of order made by the tribunal on 18 March 2014.

2. It was then ordered

   That the Residential Tenancy agreement between the parties shall be terminated as at 20 April 2014, in relation to premises at 953 Rochedale Road, Rochedale, on the ground of failure to leave; and

   That a Warrant of Possession be issued authorising a police officer to enter the said premises, such warrant to take effect on 23 April 2014 and remain in effect for 14 days; and

   That the said warrant be executed as soon as reasonably practicable after taking effect.

3. On 3 April 2014 Face 2 Face filed an application for leave to appeal, and an application to stay that decision.

4. Face 2 Face objects to the tribunal’s jurisdiction[1], submitting that the parties’ general tenancy agreement dated 30 March 2012 does not create a residential tenancy within the meaning of the Residential Tenancies and Rooming Accommodation Act 2008[2].

   [1]Purportedly exercised under Residential Tenancies and Rooming Accommodation Act 2008 (RTRAA) s 341.

   [2]RTRAA ss 11, 12.

5. Before the stay application could be decided, the appellants’ adviser foreshadowed Federal Court proceedings - “a serious matter”[3] - but in the event, Face 2 Face was content to address the Supreme Court of Queensland. On 22 April 2014 Face 2 Face filed Supreme Court application 6566/13, inter alia, injunctions against the Queensland Police Service and a declaration that QCAT has no jurisdiction to hear and determine this dispute.

   [3]Email Russell G H Matthews to registry, 22 April 2014: “You should bring this to the attention of QCAT senior members as I [sic] am seeking a declaration in the Federal Court, that QCAT is without jurisdiction.”

6. The question then, is whether, in view of the Supreme Court proceedings, the tribunal should grant a stay of its decision, whatever else may be said for or against the procedural application made to it on 3 April 2014.

7. The mere fact that proceedings are commenced in a superior court, touching an existing case in a lower court does not necessarily require the latter to hibernate.[4] In every such case the decision to grant a stay or adjournment is a matter of discretion, professional courtesy and fairness.

   [4]Boyd v Halstead; ex parte Halstead [1985] 2 Qd R 249; Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16 at 19; Re Martin; ex parte Dipane (2005) 30 WAR 164.

8. A pertinent question is how closely the issues before the lower and the higher court are related.[5] Where they are substantially the same, the case for adjourning the lower court proceedings is strong.[6] Clearly that is the position here.

   [5]John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351 at 372; Johns and Waygood Ltd v Utah Australia Ltd [1963] VR 70 at 76.

   [6]Trivett v Nivison [1976] 1 NSWLR 312; Halabi v Westpac Banking Corporation (1989) 17 NSWLR 26.

9. If a stay were refused, a further application to the Supreme Court would probably ensue. If a stay is granted, a question that may not, after all, be settled by an appellate decision of this tribunal may be directly dealt with by higher authority.

10. In view of the institution of Supreme Court proceedings, it is unnecessary to consider the authorities well presented in the submissions of the respondent Council, or the merits of a stay on other grounds.

11. The appropriate course, in my view, is to grant a stay of proceedings, and an adjournment of the application for leave, until the determination of the Supreme Court proceedings, or until further or other order.

12. Another order of the tribunal may be appropriate if Face 2 Face does not pursue its application to the Supreme Court in an expeditious and bona fide manner.

ORDER

1. The orders of this tribunal made on 18 March 2014 are stayed, and proceedings in QCAT application APL152-14 are adjourned until determination by the Supreme Court of Queensland of Application 6566 of 2013, between Christopher Graeme Newton (applicant) and the Brisbane City Council (respondent), filed on 22 April 2014, or until further or other order of this Tribunal.