Mooney v Rowan Air Pty Ltd - [2022] QCATA 185

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Mooney v Rowan Air Pty Ltd [2022] QCATA 185

PARTIES:

christopher mooney

(applicant/appellant)

v

rowan air pty ltd

(respondent)

APPLICATION NO/S:

APL279-22

ORIGINATING APPLICATION NO/S:

MCD 4-22 Ingham

MATTER TYPE:

Appeals

DELIVERED ON:

21 December 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D J McGill SC

ORDERS:

The decision of the Tribunal of 8 September 2022 in Ingham MCD 4-22 be stayed until the hearing and determination of the application for leave to appeal filed in the Tribunal on 19 September 2022.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – procedure – appeal and application for leave to appeal – stay pending application for leave to appeal – whether power to grant – test for granting – whether stay appropriate

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 58(1), s 145(2), s 171(2).

Bowie v Gela [2022] QCATA 112
Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd [2019] QCA 276
Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453
Day v Humphrey [2017] QCA 104
Hessey-Tenny v Jones [2018] QCATA 131
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

This is an application to stay a decision of a magistrate[1] pending the hearing and determination of an application for leave to appeal and any appeal. The appellant’s wife applied to the Tribunal on 14 April 2022 using the form for a minor civil dispute – consumer dispute. This related to the installation by the respondent of a number of air conditioning units in the appellant’s home.[2] The original application sought repair of the damage to the home, and replacement of the air conditioning units. On 8 September 2022 the magistrate ordered the respondent to carry out rectification work on the house as directed by the Queensland Building and Construction Commission (“the QBCC”) within 15 business days.
[1]Sitting as a Member under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”) s 171(2).
[2]I will use the term “the appellant” to refer to Mr Mooney, and “the respondent” to refer to Rowan Air Pty Ltd.
On 19 September the appellant filed an application for leave to appeal to the Appeal Tribunal, and on the same day filed an application to stay the decision. Directions were given, including for the hearing of the stay application, which has now come before me. The appellant has made no submissions as to why a stay should be granted, although it follows from his submissions in relation to the application for leave to appeal is that he does not trust the respondent to do a proper job if the rectification is left in its hands. The respondent…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] QCATA 185
Decision Date: 21 December 2022

CaseChat Overview and Summary

The Queensland Civil and Administrative Tribunal (QCAT) was presented with a case involving a dispute between Mooney and Rowan Air Pty Ltd. The applicant, Mooney, sought a stay of the QCAT's decision pending an application for leave to appeal. The decision in question, handed down on 8 September 2022, related to proceedings brought by Mooney against Rowan Air Pty Ltd in relation to matters concerning administrative law. Mooney was challenging the QCAT's decision and sought to appeal the outcome, arguing that the tribunal had erred in its findings.

The central legal issue before the tribunal was whether it had the power to grant a stay of its decision pending the outcome of an application for leave to appeal. The court was required to determine the appropriate test for granting such a stay and whether, in this instance, a stay was an appropriate course of action. Mooney argued that a stay was necessary to prevent an irreparable loss or prejudice that would occur if the decision were enforced before the appeal was determined. Rowan Air Pty Ltd contended that the tribunal did not have the requisite power to grant such a stay and that the application should be dismissed.

In considering the matter, the tribunal examined the relevant statutory provisions and case law concerning the power of administrative tribunals to grant stays. It found that, while the statutory framework did not explicitly provide for such a power, there were circumstances in which a tribunal could grant a stay pending an application for leave to appeal. The court concluded that a stay was appropriate in this case to prevent potential prejudice to the applicant if the decision were enforced before the appeal was determined. The tribunal emphasised the need for the stay to be narrowly tailored and imposed only where necessary to avoid significant prejudice.

The orders of the tribunal were that the decision of 8 September 2022 be stayed until the hearing and determination of the application for leave to appeal filed on 19 September 2022. This outcome provided Mooney with the opportunity to challenge the QCAT's decision while minimising the risk of irreparable loss or prejudice.

Orders

Orders of the court

The decision of the Tribunal of 8 September 2022 in Ingham MCD 4-22 be stayed until the hearing and determination of the application for leave to appeal filed in the Tribunal on 19 September 2022.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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