Joy v Kibalya

[2014] QCATA 288

CITATION: Joy v Kibalya [2014] QCATA 288

PARTIES:	Virginia Joy (Applicant/Appellant)
v
Danielle and Francis Kibalya (Respondent)

APPLICATION NUMBER: APL322-14

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member Stilgoe, OAM

DELIVERED ON: 25 August 2014

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The decision dated 1 July 2014 in Caboolture Minor Civil Dispute claim number MCDT 183/14 is stayed pending the outcome of the application for leave to appeal or appeal.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – STAY APPLICATION

Kostopoulos v G E Commercial Finance Australia Pty Ltd [2005] QCA 311
Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453
Chief Executive Officer, Department for Child Protection v S (2007) 98 ALD 329

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. On 1 July 2014, the tribunal ordered that Ms Joy pay Mr and Ms Kibalya $2,988.50.

2. Ms Joy wants to appeal that decision on a number of grounds, including that the learned Adjudicator relied on evidence to which Ms Joy did not have access.

3. Ms Joy also applied for a stay of the learned Adjudicator’s decision. The question of whether a stay of the original decision should be granted is usually addressed according to established principles: Is it an appropriate case to grant a stay?[1]  Does the applicant have an arguable case on appeal?[2]  Would a refusal of a stay render the appeal nugatory?[3]  Does the balance of convenience favour granting the stay?[4]

   [1]Croney v Nand [1999] 2 Qd R 342 at 348.

   [2]Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453 at 455.

   [3]Chief Executive Officer, Department for Child Protection v S (2007) 98 ALD 329 at 331.

   [4]Kostopoulos v G E Commercial Finance Australia Pty Ltd [2005] QCA 311.

4. I do not have access to the original file or the transcript so I am unable to assess whether Ms Joy has a reasonable argument on appeal.  However, if the transcript supports her assertion that the learned Adjudicator considered material that Ms Joy did not see, then it would appear Ms Joy was denied procedural fairness and, therefore, does have grounds for appeal.

5. The other matter to which I had regards in exercising my discretion was Ms Joy’s financial position. She is on the aged pension.  She says she has no capacity to pay the amount of the learned Adjudicator’s decision. A stay will not, therefore, disadvantage Mr and Ms Kibalya – they were not going to be paid in any event – but will offer Ms Joy some temporary protection from significant financial consequences until the appeal is resolved.

6. I note Mr and Ms Kibalya’s submissions that they received nothing from Ms Joy. The tribunal record indicates that Ms Joy copied Mr and Ms Kibalya into emails she sent the tribunal. Mr and Ms Kibalya’s only basis for resisting the application for a stay is that this matter has taken some time to resolve and they have unspecified ‘family priorities’. They also have the benefit of a rental property from which they can earn income pending the decision of the appeal tribunal.

7. On balance, the application for a stay should be granted.