PresCare Lake Sherrin v Mallinson

[2010] QCATA 43

CITATION: PresCare Lake Sherrin v Mallinson & Anor [2010] QCATA 43

PARTIES:	PresCare Lake Sherrin   (Applicant)
v
Roy MALLINSON and June MALLINSON (Respondents)

APPLICATION NUMBER:            APL110-10   

MATTER TYPE: Appeal

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON:   1 September 2010

DELIVERED AT:   Brisbane

ORDERS MADE:  Application for leave to appeal refused         

CATCHWORDS :  INTERIM ORDER – LEAVE TO APPEAL – where Senior Member issued interlocutory order for the applicant to supply certain information and adjourned matter for a compulsory conference – where applicant alleges Senior Member failed to consider relevant matters, made the order without jurisdiction and without proper notice – whether any error of law

REASONS FOR DECISION

1. This is a misconceived application for leave to appeal. Lake Sherrin is a retirement village and Mr and Mrs Mallinson are tenants there. They believe they have, over some years, been overcharged for their rent and associated services. They commenced proceedings in the former Small Claims Tribunal under the Residential Tenancies and Rooming Accommodation Act 2008 claiming relief in somewhat unusual terms:

Please be aware that we are asking this court to either help reinstate our 2002 lease, as was originally intended, or if this is not possible the $12088.78 returned to us.

1. The matter came on for hearing before a QCAT adjudicator on 9 February 2010. Concerned, apparently, that the matter may not be appropriately determined in QCAT’s Minor Civil Disputes jurisdiction it was referred, on the same day, to a Senior Member of QCAT who made interlocutory orders for the provision of certain information by PresCare to Mr and Mrs Mallinson and, otherwise, simply adjourned the matter for a compulsory conference.

2. PresCare has sought leave to appeal that decision on the grounds that the learned Senior Member failed to consider relevant matters, made an order without jurisdiction and without giving notice to PresCare of his intention to make that order.

3. As the learned Senior Member’s reasons for his decision, published on 20 May 2010, show very clearly he was not determining any substantive issue between the parties. Rather, he addressed the nature of the dispute and the evidence he had about their relations.

4. He could not, he held, determine the issues between the parties but concluded that it would be useful, for the purposes of a compulsory conference and also, apparently, for any ultimate adjudication, that PresCare provide Mr and Mrs Mallinson with a breakdown of the rent they had paid, and charges for maintenance services fees, between May 2005 and May 2010.

5. He made it clear that he was not determining any issues in the matter. In particular, he said at para [19]:

As I’ve indicated I cannot make any final determination as to these matters, but it would       seem to me that if the repayment of that sum by the respondent to the applicant finalised this application then it would be within the range of orders that the Tribunal could make on the accurate dissection or when/management and service fees. (emphasis added)

1. At paragraph [20] he clearly explained the purpose of his order:

I can appreciate that this does not finalise this application but these findings, which are consistent with the factual matrix, will assist in quantifying the amount overpayed if any by the applicants (emphasis added)

1. The order was, on any view, an interlocutory one and not QCAT’s final decision in the proceeding. Under s 142(3)(a)(ii) of the QCAT Act[1] leave is necessary before an appeal can be brought against a decision of that kind. The mistake the applicant for leave appears to have made, intending no disrespect, is to regard the decision as somehow final in nature. That is the only possible explanation for the lengthy submissions it has provided, accompanied by a chronology and a bundle of tabulated documents which appear to be relevant to issues with may arise in the eventual adjudication of this matter if it is not resolved by some other means, (i.e., at the compulsory conference) but for present purposes they are superfluous.

   [1]           Queensland Civil and Administrative Tribunal Act 2009

2. The applicant is unable to point to any error of law on the part of the learned Senior Member or any question of general importance upon which further argument, and a decision of this Appeal Tribunal, would be to the public advantage. The application for leave to appeal is refused.