Parker v Mitchell - [2019] QCA 2

[2019] QCA 2

COURT OF APPEAL

FRASER JA

Appeal No 14249 of 2018
QCATA No 348 of 2018

DAVID JOSEPH PARKER Applicant

CRAIG MITCHELL Respondent

BRISBANE

WEDNESDAY, 30 JANUARY 2019

JUDGMENT

FRASER JA: On 28 November 2018, after a hearing in QCAT, an adjudicator made an order terminating a residential tenancy agreement pursuant to which the applicant, Mr Parker, occupied a horse float owned by the respondent, Mr Mitchell. The termination order was made upon the ground that Mr Parker had engaged in objectionable behaviour. That term is explained in s 297 of the Residential Tenancies and Rooming Accommodation Act 2008. It empowers a lessor to apply to a Tribunal for a termination order because the tenant has harassed, intimidated or verbally abused the lessor or other identified persons, including a person occupying premises nearby, or because the tenant is causing or has caused a serious nuisance to persons occupying premises nearby.

That proceeding was a minor civil dispute, within the meaning of that term in the Queensland Civil and Administrative Tribunal Act 2009. Under s 142 of that Act, a party to such a proceeding may appeal against the decision of the adjudicator by the leave of the Appeal Tribunal. The start of such an appeal does not affect the operation of the decision or prevent the taking of action to implement it. However, the Tribunal constituted for the appeal, or a judicial member if the Tribunal has not been so constituted, may make an order staying the operation of the decision appealed against until the appeal is finally decided: see s 145 Queensland Civil and Administrative Tribunal Act 2009.

On 30 November 2018, Mr Parker applied for leave to appeal and for a stay of the decision. In that application, Mr Parker contended that Mr Mitchell’s allegations that he had engaged in objectionable behaviour were incorrect. On 4 December 2018, the Appeal Tribunal, by Member Brown, made directions for the appeal and also made an interim order suspending the operation of the termination order and a warrant which had been issued, until further order. Directions were made for the hearing of Mr Parker’s application for a stay. On 14 December 2018, the Appeal Tribunal, by Dr Forbes, refused the application to stay the minor civil dispute decision, reinstated the warrant of possession, and directed that it would take effect on 17 December 2018 for a period which ended on 30 December 2018. I have been informed that pursuant to the warrant Mr Parker has vacated the premises.

Further directions were made in the Tribunal for the hearing of the appeal to the Appeal Tribunal. On 17 December 2018, Mr Parker sought to file in the Tribunal an application for leave to appeal against the decision refusing the stay. By that application, Mr Parker sought another hearing upon the stay decision. On 19 December 2018, the Appeal Tribunal, by Member Brown, directed the principal registrar under s 35 of the Queensland Civil and Administrative Tribunal Act to reject…

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: [2019] QCA 2
Decision Date: 30 JANUARY 2019

CaseChat Overview and Summary

David Parker has appealed against the decision of the Appeal Tribunal of the Queensland Civil and Administrative Tribunal (QCAT), which refused to stay the termination of his residential tenancy agreement with Craig Mitchell, and reinstated a warrant of possession. Mr Parker is also seeking orders which would recognise an implied agreement that he would renovate the premises in exchange for staying there, and to stay the operation of the warrant until the appeal of the QCAT decision is heard. This appeal was brought before Fraser JA in the Queensland Court of Appeal.

The appeal raises two main legal issues: whether Mr Parker has a right of appeal from the decision of the Appeal Tribunal of QCAT to the Court of Appeal; and whether there are grounds for the Court of Appeal to exercise its discretion to stay the operation of the warrant of possession until the appeal is heard.

The court held that Mr Parker does not have a right to appeal from the decision of the Appeal Tribunal of QCAT to the Court of Appeal. The Queensland Civil and Administrative Tribunal Act 2009 allows for an appeal from a decision of QCAT to the Appeal Tribunal, and for leave to appeal from a decision of the Appeal Tribunal to the Court of Appeal. However, there is no provision for an appeal from the Appeal Tribunal to the Court of Appeal. The court also held that there are no grounds for the Court of Appeal to exercise its discretion to stay the operation of the warrant of possession until the appeal is heard. The court held that the Appeal Tribunal exercised its discretion correctly in refusing to stay the warrant, and that Mr Parker has not been able to identify any arguable error of law in that decision.

The court refused all of the orders sought by Mr Parker.

No orders were made in this appeal.

Orders