Reihana v Davern - [2015] QCA 42

SUPREME COURT OF QUEENSLAND

CITATION:

Reihana v Davern & Anor [2015] QCA 42

PARTIES:

TONI COLIN REIHANA

(appellant)v
TREVOR DAVERN

BEENLEIGH SHOW SOCIETY
(first respondent)(second respondent)

FILE NO/S:

Appeal No 6320 of 2014
SC No 9724 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

27 March 2015

DELIVERED AT:

Brisbane

HEARING DATE:

20 February 2015

JUDGES:

Holmes and Gotterson JJA and Jackson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. The appeal is dismissed.

2. The appellant is to pay the second respondent’s costs.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where the appellant and second respondent were parties to a tenancy dispute – where the appellant and second respondent attended a hearing at the Queensland Civil and Administrative Tribunal adjudicated by the first respondent – where the first respondent adjourned the proceeding so that the dispute could go to a compulsory conciliation conference – where s 416 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) requires a conciliation process except in respect of ‘urgent’ applications within the meaning of s 415 of the Act – where the appellant made an application for a statutory order of review under Pt 3 of the Judicial Review Act 1991 (Qld) in respect of the first respondent’s decision to adjourn – where s 156 of the Queensland Civil and Administrative Tribunal Act excludes the application of Pt 3 of the Judicial Review Act 1991 (Qld) to a decision or conduct of QCAT, except for jurisdictional error – where the primary judge found there was no jurisdictional error and dismissed the application – where the appellant asserted that by failing to deal with his application the first respondent had committed jurisdictional error in failing to accord him natural justice and in failing to perform his ‘core function’ – whether there was any ‘urgent’ application before the first respondent – whether the primary judge erred in concluding that no jurisdictional error had been shown

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(a), s 156
Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 223, s 227, s 291, s 292, s 415, s 416

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18, cited
R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13, cited

COUNSEL:

The appellant appeared on his own behalf
G P Sammon for the first respondent
A M Laylee (sol) for the second respondent

SOLICITORS:

The appellant appeared on his own behalf
Crown Solicitors for the first respondent
McCarthy Durie Lawyers for the second respondent

HOLMES JA: The appellant filed a notice of appeal seeking orders quashing a Supreme Court decision and declaring it unreasonable and “harshly judged” and a further…

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.

Continue reading Reihana v Davern

Details

AGLC: Reihana v Davern [2015] QCA 42
Case: [2015] QCA 42
Decision Date: 27 March 2015

CaseChat Overview and Summary

Reihana appealed against a decision of the primary judge of the Supreme Court of Queensland, who dismissed his application for a statutory order of review of a decision of the first respondent, a member of the Queensland Civil and Administrative Tribunal (QCAT). The appeal related to a tenancy dispute between the appellant and the second respondent. The first respondent had adjourned the proceedings to allow for a compulsory conciliation conference, which the appellant sought to challenge, claiming a failure to accord him natural justice and a failure to perform a 'core function'. The primary judge found no jurisdictional error in the first respondent's decision to adjourn.

The key legal issues were whether the application made by the appellant was 'urgent' within the meaning of s 415 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), and whether the primary judge erred in concluding that no jurisdictional error had been shown. The appellant argued that the first respondent's failure to address his application constituted jurisdictional error due to a breach of natural justice and an omission in performing a 'core function'. However, the court considered that the primary judge had correctly interpreted the law and found no jurisdictional error, thereby dismissing the application.

The Supreme Court of Queensland held that the primary judge did not err in concluding that no jurisdictional error had been shown. The court found that the adjournment did not constitute jurisdictional error, as it was not an 'urgent' application within the meaning of s 415 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). Additionally, the court held that the first respondent's failure to address the appellant's application did not amount to a breach of natural justice or a failure to perform a 'core function'. The appeal was dismissed, and the appellant was ordered to pay the second respondent's costs.

Orders

Orders of the court

1. The appeal is dismissed.

2. The appellant is to pay the second respondent’s costs.

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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CITATION:	Reihana v Davern & Anor [2015] QCA 42
PARTIES:	TONI COLIN REIHANA (appellant)v TREVOR DAVERN BEENLEIGH SHOW SOCIETY (first respondent)(second respondent)
FILE NO/S:	Appeal No 6320 of 2014 SC No 9724 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	27 March 2015
DELIVERED AT:	Brisbane
HEARING DATE:	20 February 2015
JUDGES:	Holmes and Gotterson JJA and Jackson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The appeal is dismissed. 2. The appellant is to pay the second respondent’s costs.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where the appellant and second respondent were parties to a tenancy dispute – where the appellant and second respondent attended a hearing at the Queensland Civil and Administrative Tribunal adjudicated by the first respondent – where the first respondent adjourned the proceeding so that the dispute could go to a compulsory conciliation conference – where s 416 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) requires a conciliation process except in respect of ‘urgent’ applications within the meaning of s 415 of the Act – where the appellant made an application for a statutory order of review under Pt 3 of the Judicial Review Act 1991 (Qld) in respect of the first respondent’s decision to adjourn – where s 156 of the Queensland Civil and Administrative Tribunal Act excludes the application of Pt 3 of the Judicial Review Act 1991 (Qld) to a decision or conduct of QCAT, except for jurisdictional error – where the primary judge found there was no jurisdictional error and dismissed the application – where the appellant asserted that by failing to deal with his application the first respondent had committed jurisdictional error in failing to accord him natural justice and in failing to perform his ‘core function’ – whether there was any ‘urgent’ application before the first respondent – whether the primary judge erred in concluding that no jurisdictional error had been shown Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(a), s 156 Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 223, s 227, s 291, s 292, s 415, s 416 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18, cited R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13, cited
COUNSEL:	The appellant appeared on his own behalf G P Sammon for the first respondent A M Laylee (sol) for the second respondent
SOLICITORS:	The appellant appeared on his own behalf Crown Solicitors for the first respondent McCarthy Durie Lawyers for the second respondent