Kerr v Ray White Gladstone Residential

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SUPREME COURT OF QUEENSLAND

CITATION:

Kerr v Ray White Gladstone Residential & Anor [2023] QCA 106

PARTIES:

ROBERT JOHN KERR
(applicant)
v
RAY WHITE GLADSTONE RESIDENTIAL
(first respondent)
GERARD THOMAS MOORE
(second respondent)

FILE NO/S:

Appeal No 13625 of 2022
QCATA No 208 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Queensland Civil and Administrative Tribunal Act

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal at Brisbane – Unreported, 29 September 2022 (Acting Senior Member Fitzpatrick)

DELIVERED ON:

19 May 2023

DELIVERED AT:

Brisbane

HEARING DATE:

11 April 2023

JUDGES:

Bond and Flanagan JJA and Crow J

ORDER:

The application for leave to appeal is refused.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – STATUTORY APPEALS FROM ADMINISTRATIVE AUTHORITIES TO COURTS – where the applicant is the lessee of a unit owned by the second respondent – where the second respondent appointed the first respondent to sell the property on his behalf – where the first respondent asked the applicant to sign a photographic consent form so that photographs could be taken of the unit – where the applicant refused to sign the consent unless the first respondent gave an undertaking it would make an effort to avoid inclusion of personal belongings of the applicant in the photographs – where the applicant was subsequently issued with a Notice to Leave by the second respondent – where the applicant filed an “Application for minor civil dispute – residential tenancy dispute” with QCAT seeking orders that the Notice to Leave be set aside – where the original decision maker dismissed the application – where the applicant filed an application to dismiss the decision of the decision maker and an application for leave to appeal the dismissal with the QCAT appeal tribunal – where the QCAT appeal tribunal dismissed the stay application but did not deal with the application for leave to appeal – where the applicant filed an application with the Court of Appeal seeking leave to appeal to set aside the decision of the QCAT appeal tribunal on the stay application –whether the Court of Appeal has jurisdiction to hear the application – whether the applicant could identify any error of law – whether the QCAT appeal tribunal decision maker’s decision constituted a “final decision” – whether leave to appeal should be given

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 11, s 58, s 142, s 145, s 147, s 149, s 150
Residential Tenancies and Rooming Accommodation Act2008 (Qld), s 203, s 291

Pivovarova v Michelsen (2019) 2 QR 508; [2019] QCA 256, applied

COUNSEL:

The applicant appeared on his own behalf
The director of the first respondent appeared for the first respondent
No appearance for the second respondent

SOLICITORS:

The applicant appeared on his own behalf
The director of the first respondent appeared for the first respondent
No appearance for the second respondent

  1. THE COURT:  The applicant Mr Kerr, who represents himself, seeks leave to appeal a decision of Acting Senior Member Fitzpatrick of…

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Details
Case
[2023] QCA 106
Decision Date

CaseChat Overview and Summary

In the matter of Kerr v Ray White Gladstone Residential, the applicant, Mr Kerr, sought leave to appeal a decision of the Queensland Civil and Administrative Tribunal (QCAT) Appeal Tribunal. The QCAT Appeal Tribunal had dismissed Mr Kerr's application to stay a Notice to Leave issued by the second respondent, the owner of the property. Mr Kerr argued that the Notice to Leave was retaliatory, issued because he refused to sign a consent form allowing the property to be photographed for marketing purposes unless his personal belongings were excluded from the photographs. The QCAT Appeal Tribunal found that Mr Kerr had not identified any error of law that would justify an appeal.

The legal issues before the Court of Appeal were whether the Court had jurisdiction to hear the appeal and whether Mr Kerr could identify any error of law. The Court examined the statutory framework governing appeals from QCAT decisions. It found that the QCAT Appeal Tribunal's decision to refuse the stay application was not a "final decision" within the meaning of the QCAT Act, and thus, the Court did not have jurisdiction to hear the appeal under section 150 of the QCAT Act. The Court also noted that Mr Kerr had not identified any error of law that would warrant an appeal. The Court concluded that the QCAT Appeal Tribunal's decision was a preliminary ruling on a stay application and did not finally decide the matters in dispute.

In light of the findings, the Court of Appeal refused Mr Kerr's application for leave to appeal. The Court held that it lacked jurisdiction to hear the appeal, and no error of law had been identified that would justify setting aside the QCAT Appeal Tribunal's decision. The Court's decision underscored the importance of strictly adhering to the statutory requirements for appeals from QCAT decisions and highlighted the limited scope of appellate review in such matters.

Orders

Orders of the court

The application for leave to appeal is refused.

Background

Background to the litigation

Second, it will also appear that the appeal record in this Court was deficient in many respects. Mr Kerr sought to address some of those deficiencies by seeking this Court’s leave to rely on further evidence, as contained in his affidavits affirmed on 27 October 2022, 28 December 2022, and 10 February 2023. As to that application:(a)Leave to rely on the affidavit affirmed on 27 October 2022 should be given because that affidavit identifies the content of further procedural steps taken in the QCAT appeal tribunal not otherwise contained in the appeal record.(b)Leave to rely on the affidavit affirmed on 28 December 2022 should be refused. It contains details of the relationship between the first respondent and people other than Mr Kerr. It does not contain material which is relevant to the application before this Court.(c)Leave to rely on the affidavit affirmed on 10 February 2023 should be refused as it does not actually contain any supplementary material but expresses only argument.Factual Background Mr Kerr is the lessee of a home unit in Calliope. The unit is owned by the second respondent who appointed the first respondent to sell the property on his behalf. A notice of intention to sell was sent by the first respondent to Mr Kerr on 28 April 2022. On 3 May 2022 the first respondent sent Mr Kerr an email enclosing a photographic consent form. The consent form was sent by the first respondent to Mr Kerr because s 203 of the Residential Tenancies and Rooming Accommodation Act2008 (Qld) (RTRAA) prohibits a person photographing a rental property if the photograph includes “something belonging to the tenant” in the absence of the written consent of the tenant. The draft of the tenant consent form provided what Mr Kerr referred to as an “open consent”; that is, a consent to show any of Mr Kerr’s belongings in photographs. In an email dated 3 May 2022 Mr Kerr replied that he was not inclined to give an open consent and required the agent to undertake to avoid the inclusion of his property from photographs wherever possible. The first respondent’s sales agent, Mr Crick, responded by email at 9.50 am on 4 May 2022 noting that Mr Crick had tried to call Mr Kerr on 3 May 2022 unsuccessfully to “chat about” his request to have his belongings not photographed. Mr Crick’s email records his understanding that privacy is of importance to Mr Kerr and advised that if the agency could not get updated photographs of the property to show prospective buyers, then Mr Kerr would be inconvenienced by the necessity to conduct more inspections. Mr Crick’s email notes his understanding that Mr Kerr did not want his personal belongings photographed and recommended that Mr Kerr remove any private items or items which may identify him to preserve Mr Kerr’s privacy. Mr Crick concluded his email by stating “I hope we are able to work something out and get some photos of the property at your convenience.” On 4 May 2022, Mr Kerr replied by email that he was reluctant to have his personal belongings feature in any photographs and sought an undertaking the agent would make an effort to avoid inclusion of personal belongings in the photographs. Mr Kerr concluded his email by stating that “I am not trying to prevent you marketing the property. I believe we should have a chat to understand how we can enable you to get your photographs. I will be available at 2.00pm today, if that is suitable give me a call at that time.”The application to QCAT

Evidence

Evidence Before The Court

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Decision

Reasons for decision

As previously mentioned, Mr Kerr approached the application on the basis that it was authorised pursuant to s 150 of the QCAT Act. Section 150(3) of the QCAT Act provides:“150Party may appeal—decisions of appeal tribunal(1)A person may appeal to the Court of Appeal against a decision of the appeal tribunal to refuse an application for leave to appeal to the appeal tribunal.(2)A party to an appeal under division 1 may appeal to the Court of Appeal against the following decisions of the appeal tribunal in the appeal—(a)a cost-amount decision;(b)the final decision.(3)However, an appeal under subsection (1) or (2) may be made—(a)only on a question of law; and(b)only if the party has obtained the court’s leave to appeal.” The requirement that the appeal is limited to questions of law is an important one. As Fraser JA said in Pivovarova v Michelsen (2019) 2 QR 508 at [7] (with whom Boddice J and Crow J agreed) (emphasis omitted):“The legislative policy is reinforced by the statement in s 153(1) of the QCAT Act that s 153 (which confers powers upon the Court of Appeal in deciding appeals) “applies to an appeal before the Court of Appeal against a decision of the tribunal on a question of law only”. In that provision the word “only” qualifies “a question of law”, whereas s 150(3)(a) allows an appeal to be made “only on a question of law”. The latter expression, if considered in isolation from its context, is open to the construction that the only kind of appeal that may be made is an appeal “on a question of law”, rather than a construction that the appeal is confined to “a question of law only” (which is a pure question of law). Because s 153 is plainly designed to comprehend an appeal under s 150, the implication is that, consistently with the statutory context already discussed and Rothman J’s conclusion in Bagumya v Kakwano, an appeal under s 150 is confined to one made on a question of law only.” Fraser JA concluded that s 150(3)(a) allowed only for an appeal on questions of law to be heard by the Court of Appeal and not a mixed question of fact and law. In his submissions before this Court Mr Kerr was unable to identify any error of law made by Acting Senior Member Fitzpatrick in her decision to refuse the stay. Indeed, it became apparent during his argument that his real complaint was that the Magistrate had erred in not drawing the inferences which he had invited the Magistrate to draw, namely that the notice was issued as retaliation or as a result of Mr Kerr enforcing his tenancy rights. He was unable to explain why Acting Senior Member Fitzpatrick had erred in law in concluding that it was open to the Magistrate not to draw those inferences. No error of law having been identified, any application for leave to appeal pursuant to s 150 would fail. As previously noted however, there is reason to doubt that Mr Kerr’s application to this Court could properly be regarded as an application pursuant to s 150. This question was not the subject of argument by Mr Kerr, nor was there any effective contradictor to Mr Kerr’s assumption that this Court had jurisdiction to entertain his application. Accordingly, no concluded view should be expressed. Nevertheless, we observe:(a)Section 150(1) could not apply because the decision of Acting Senior Member Fitzpatrick did not refuse an application for leave to appeal to the appeal tribunal.(b)For the purposes of s 150(2), “final decision” means “the tribunal’s decision that finally decides the matters the subject of the proceeding”.[3] In the context of s 150(2), the proceeding should be regarded as the appeal under div 1. But the decision of Acting Senior Member Fitzpatrick only refused a stay application. Although it expressed the view that there was no good arguable case on appeal, the decision could not be regarded as finally deciding the matters the subject of the appeal because it was not a decision made by the appeal tribunal on the application for leave to appeal. Accordingly, there being no “final decision”, s 150(2) would not apply.(c)The only other avenue to appeal to the Court of Appeal is expressed in s 149. But s 149(1) would not apply as the decision was not a “cost-amount decision”. Section s 149(2) would not apply because Acting Senior Member Fitzpatrick is not a judicial member. It might have been different had she been a judicial member. Then her exercise of the jurisdiction under s 145 might, arguably, be regarded as a decision to which s 149(2) of the QCAT Act applied, thereby enabling an appeal to this Court by leave on questions of fact or mixed fact and law. That would depend on a conclusion that the application to stay should be regarded as a “proceeding relating to an application for leave to appeal”.[4](d)If the decision of Acting Senior Member Fitzpatrick should be regarded as addressing a possible exercise of power under s 58, it may be that an appeal might lie to the QCAT appeal tribunal under s 142 of the QCAT Act. But that would not justify the present application to this Court.(e)The result appears to be that this Court has no jurisdiction to entertain Mr Kerr’s application, thereby also justifying an order that the application for leave to appeal should be refused.[3]See the definition of “final decision” in schedule 3 to the QCAT Act.[4]See the definition of “proceeding” in schedule 3 to the QCAT Act.Order

Ratio Decidendi

Legal Principle Established

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