[2019] QCA 2 COURT OF APPEAL FRASER JA Appeal No 14249 of 2018 QCATA No 348 of 2018 DAVID JOSEPH PARKER Applicant v 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
2 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 the further application for leave to appeal. That direction was presumably made under s 35(3)(c) of that Act, which allows for such a direction where an application does not comply with the Act, any enabling Act or the Rules. No reasons are available to me for the decision to make the direction. But the reasoning may have been that the Act makes no provision for an appeal from the decision by an Appeal Tribunal to the Appeal Tribunal itself. So much would be consistent with an observation by
3 Justice Bond in paragraph 44 of his reasons in JM Family Holdings Pty Ltd & Anor v Owltown Pty Ltd & Anor [2018] QCA 260. According to directions made in the Appeal Tribunal, Mr Parker s application for leave to appeal will not be heard until after mid-march 2019. Mr Parker has filed a notice of appeal against the decision of 19 December 2018. The grounds of appeal contend, in summary, that the Member erred at law by not finding that there was an implied agreement that instead of rental payments of $230 per week, Mr Parker would renovate the premises, that Mr Mitchell now owes Mr Parker approximately $6,000, and that Mr Parker therefore acquired accommodation dating 26 April 2019. An affidavit filed by Mr Parker suggests that he intends, by these grounds, to refer to an oral agreement which entitled him to stay in the property in exchange for Mr Parker carrying out carpentry works to bring the horse float up to a liveable standard and also renovating Mr Mitchell s caravan. Although the notice of appeal is against the decision said to have been made by QCAT Member Brown, the only orders sought are a stay of the orders made by Dr Forbes which refused to stay the minor civil dispute decision and reinstated the warrant of possession. What is presently before me is an application by Mr Parker for three orders. Proposed orders 2 and 3 are to the effect that the implied tenancy agreement alleged by Mr Parker be recognised and that he is entitled to remain in the accommodation until 26 of April 2019 in exchange for the renovations Mr Parker contends he has completed. Those orders are not sought in the notice of appeal. But they are orders of a kind which might be appropriate if Mr Parker were entitled to appeal and succeeded in establishing the grounds stated in his notice of appeal. However, as a single judge I have no power to hear the appeal or to make substantive final orders of that kind. The remaining order sought by Mr Parker is for a stay of the order made by Member Brown in the Appeal Tribunal on 19 December 2018, directing the principal registrar of QCAT to reject his application under s 35 of the Queensland Civil and Administrative Tribunal Act. Mr Parker, who has represented himself in this matter, has not articulated an argument suggesting that the
4 Act or any other statutory provision confers power upon a litigant in QCAT to appeal from a decision of the Appeal Tribunal to the Appeal Tribunal. I have not been able to identify a source of jurisdiction in this Court to hear an appeal or an application for leave to appeal against the decision to direct the principal registrar to reject an application. That direction was not, in my opinion, the refusal of an application for leave to appeal under s 150(1) of the Act, and nor was it a cost-amount or final decision in the appeal under s 150(2). Mr Parker understandably focused instead upon the decision of Dr Forbes to refuse to stay the original decision and the warrant. Assuming that that matter is before me, there is no ground for intervention by this Court. Dr Forbes exercised a discretion when deciding to refuse to stay the warrant. In the course of doing so, he observed correctly that a relevant consideration in the decision of whether to grant a stay or of the likelihood of success in the appeal: see Elphick v MMI General Insurance Ltd & Anor [2002] QCA 347 at [4]. Dr Forbes considered that the prospects of success were not promising. He referred to evidence given by Mr Mitchell and by the occupant of nearby premises in terms which suggest that there was ample evidence to justify the adjudicator in concluding that Mr Parker had engaged in objectionable behaviour as defined, notwithstanding that it may have been vehemently denied by Mr Parker. For example, Dr Forbes referred to evidence that Mr Parker had emptied the contents of a composting toilet into a washing machine near the neighbour s premises, he had redirected a drain from a toilet towards those premises, and he had admitted in an email to having thrown rocks on the roof of the neighbouring premises and having been aggressive towards the neighbour. Dr Forbes considered it was implicit in the decision to evict Mr Parker that the adjudicator accepted that evidence or at least, most of it and that the evidence revealed conduct that no reasonable landlord or neighbour could be expected to tolerate. Mr Parker contends that the allegations against him were incorrect for reasons which he explained. But any appeal to this Court from a decision of the Appeal Tribunal under s 150, if such an appeal were available, is an appeal granted by leave and only on a question of law. Mr Parker has not been able to articulate any error of law made by Dr Forbes. I note that this is not a case in which there might
5 have been an error of law constituted by the absence of any evidence to justify Dr Forbes unfavourable view of the prospects of success. Dr Forbes accepted, correctly, that the filing of an appeal did not itself stay or suspend the decision that a stay order was not granted as a matter of course, and that such an order should only be made in the exercise of discretion which involved striking the correct balance of convenience between the competing interests of the parties. Mr Parker s argument did not identify any material consideration that Dr Forbes should have taken into account but did not take into account or any immaterial consideration that Dr Forbes should not have taken into account but did take into account. The proposed appeal to this Court would be from the exercise of a discretion and there is no ground for thinking that there is any arguable error which would justify this Court in setting aside that discretionary decision. Furthermore, s 152 of the Queensland Civil and Administrative Tribunal Act provides that the start of an appeal under the division conferring a right to appeal to this Court or from certain decisions of the Appeal Tribunal does not affect the operation of the decision or prevent the taking of action to implement it. The Court of Appeal is then given a discretionary power to make an order staying the operation of the decision until the appeal is finally decided. The fundamental difficulty for Mr Parker s case that if such a discretion exists in this matter the Court should exercise it, is that he was evicted from the premises. There would be no point in this Court granting a stay of a decision which refused to stay a warrant requiring that eviction. Rather, Mr Parker would need to seek a mandatory order from this Court requiring Mr Mitchell to accept Mr Parker as a tenant pending the outcome of the appeal to the Appeal Tribunal. Such an order would not be made except in extraordinary circumstances, which are not shown to exist in this case. In the result, for the many reasons that I have attempted to articulate, I am not prepared to grant any of the orders which are sought by Mr Parker today. I therefore refuse his application.