Newton v Brisbane City Council - [2014] QCA 242

SUPREME COURT OF QUEENSLAND

CITATION:

Newton v Brisbane City Council [2014] QCA 242

PARTIES:

CHRISTOPHER GRAEME NEWTON
(applicant)
RUSSELL GORDON HAIG MATHEWS
(not a party to the application)
v
BRISBANE CITY COUNCIL
(respondent)

FILE NO/S:

Appeal No 8870 of 2014
QCAT No 152 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Application for Stay of Execution

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal at Brisbane

DELIVERED EX TEMPORE ON:

26 September 2014

DELIVERED AT:

Brisbane

HEARING DATE:

26 September 2014

JUDGE:

Morrison JA

ORDERS:

1.   Application for Mr Mathews to appear for Face 2 Face Foundation Pty Ltd is refused.

2.   The Application for Face 2 Face Foundation Pty Ltd to be joined as an applicant is refused.

3.   The Application to Stay is dismissed.

4.   Applicant to pay the Respondents costs of and incidental to the application to stay, to be assessed on the standard basis.

5.   Face 2 Face Foundation Pty Ltd to pay the Respondents cost of and incidental to the application to be joined, to be assessed on the standard basis.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – PARTIES – OTHER MATTERS – where there was an application for a stay of execution by the applicant from a decision of the Queensland Civil and Administrative Tribunal – where there was an application to have a party joined to the application – where the party seeking to be joined to the application was a company – where the company did not have legal representation – where an individual sought leave from the Court to represent the company – where that individual was not a director of the company – where that individual was a vexatious litigant and prohibited from commencing proceedings against the respondent and its employees – whether leave for the joinder of the party to the stay application should be granted

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – STAYING PROCEEDINGS – where the grounds relied upon at QCAT were relied upon in the proceedings seeking a stay of execution – where those grounds included that QCAT did not have the jurisdiction to make the decision as the premises are not residential premises and that the respondent had engaged in fraud – where there was further concern that the submissions and materials were not dealt with sufficiently in QCAT – where the Court considered the prospects on appeal and if there would be irreparable harm if the stay was not granted

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 150(3)
Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 293

Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453; [2008] QCA 322, followed
Face 2 Face Foundation Pty Ltd & Anor v Brisbane City Council [2014] QCATA 267, considered
Simto Resources Ltd v Normandy Capital Limited (1993) 10 ACSR 776; [1993] FCA 305, applied

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: [2014] QCA 242
Decision Date: 26 September 2014

CaseChat Overview and Summary

In the Supreme Court of Queensland, Newton sought a stay of execution of a decision made by the Queensland Civil and Administrative Tribunal (QCAT) against Brisbane City Council. Newton aimed to join Face 2 Face Foundation Pty Ltd, a company, to the application for a stay. The company did not have legal representation, and an individual, Mathews, sought leave to represent the company despite not being a director and being a vexatious litigant. Mathews was prohibited from commencing proceedings against the respondent and its employees. The legal issues before the court were whether leave should be granted for Mathews to represent the company and for the company to be joined to the application for a stay.

The court considered the nature of the stay application and the grounds upon which it was based. These included QCAT's lack of jurisdiction due to the premises not being residential and allegations of fraud by the respondent. The court also examined whether the submissions and materials were adequately dealt with in QCAT. The prospects of success on appeal and the potential for irreparable harm if the stay was not granted were assessed. The court concluded that the application for Mathews to represent the company and for the company to be joined to the application should be refused. The application for a stay was dismissed, and costs were awarded to the respondents.

In summary, the court refused the application for Mathews to represent Face 2 Face Foundation Pty Ltd and for the company to be joined to the application. The application for a stay was dismissed, and costs were awarded to the respondents. The court found that the application for a stay was not sufficiently meritorious to warrant a stay of execution of the QCAT decision. The final orders included the refusal of the application for Mathews to appear for the company, the refusal of the application for the company to be joined, the dismissal of the stay application, and the award of costs to the respondents.

Orders

Orders of the court

1. Application for Mr Mathews to appear for Face 2 Face Foundation Pty Ltd is refused.

2. The Application for Face 2 Face Foundation Pty Ltd to be joined as an applicant is refused.

3. The Application to Stay is dismissed.

4. Applicant to pay the Respondents costs of and incidental to the application to stay, to be assessed on the standard basis.

5. Face 2 Face Foundation Pty Ltd to pay the Respondents cost of and incidental to the application to be joined, to be assessed on the standard basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Newton v Brisbane City Council [2014] QCA 242
PARTIES:	CHRISTOPHER GRAEME NEWTON (applicant) RUSSELL GORDON HAIG MATHEWS (not a party to the application) v BRISBANE CITY COUNCIL (respondent)
FILE NO/S:	Appeal No 8870 of 2014 QCAT No 152 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Application for Stay of Execution
ORIGINATING COURT:	Queensland Civil and Administrative Tribunal at Brisbane
DELIVERED EX TEMPORE ON:	26 September 2014
DELIVERED AT:	Brisbane
HEARING DATE:	26 September 2014
JUDGE:	Morrison JA
ORDERS:	1. Application for Mr Mathews to appear for Face 2 Face Foundation Pty Ltd is refused. 2. The Application for Face 2 Face Foundation Pty Ltd to be joined as an applicant is refused. 3. The Application to Stay is dismissed. 4. Applicant to pay the Respondents costs of and incidental to the application to stay, to be assessed on the standard basis. 5. Face 2 Face Foundation Pty Ltd to pay the Respondents cost of and incidental to the application to be joined, to be assessed on the standard basis.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – PARTIES – OTHER MATTERS – where there was an application for a stay of execution by the applicant from a decision of the Queensland Civil and Administrative Tribunal – where there was an application to have a party joined to the application – where the party seeking to be joined to the application was a company – where the company did not have legal representation – where an individual sought leave from the Court to represent the company – where that individual was not a director of the company – where that individual was a vexatious litigant and prohibited from commencing proceedings against the respondent and its employees – whether leave for the joinder of the party to the stay application should be granted PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – STAYING PROCEEDINGS – where the grounds relied upon at QCAT were relied upon in the proceedings seeking a stay of execution – where those grounds included that QCAT did not have the jurisdiction to make the decision as the premises are not residential premises and that the respondent had engaged in fraud – where there was further concern that the submissions and materials were not dealt with sufficiently in QCAT – where the Court considered the prospects on appeal and if there would be irreparable harm if the stay was not granted Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 150(3) Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 293 Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453; [2008] QCA 322, followed Face 2 Face Foundation Pty Ltd & Anor v Brisbane City Council [2014] QCATA 267, considered Simto Resources Ltd v Normandy Capital Limited (1993) 10 ACSR 776; [1993] FCA 305, applied