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[2023] QCA 106
General information, not legal advice.
Court of Appeal (Qld)
2023-05-19
Bond and Flanagan JJA and Crow J
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Kerr v Ray White Gladstone Residential & Anor [2023] QCA 106
PARTIES: ROBERT JOHN KERR / (applicant) / v / RAY WHITE GLADSTONE RESIDENTIAL / (first respondent) / GERARD THOMAS MOORE / (second respondent)
FILE NO/S: Appeal No 13625 of 2022 / QCATA No 208 of 2022
DIVISION: Court of Appeal
PROCEEDING: Application for Leave Queensland Civil and Administrative Tribunal Act
ORIGINATING COURT: Queensland Civil and Administrative Tribunal at Brisbane – Unreported, 29 September 2022 (Acting Senior Member Fitzpatrick)
DELIVERED ON: 19 May 2023
DELIVERED AT: Brisbane
HEARING DATE: 11 April 2023
JUDGES: Bond and Flanagan JJA and Crow J
ORDER: The application for leave to appeal is refused.
CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – STATUTORY APPEALS FROM ADMINISTRATIVE AUTHORITIES TO COURTS – where the applicant is the lessee of a unit owned by the second respondent – where the second respondent appointed the first respondent to sell the property on his behalf – where the first respondent asked the applicant to sign a photographic consent form so that photographs could be taken of the unit – where the applicant refused to sign the consent unless the first respondent gave an undertaking it would make an effort to avoid inclusion of personal belongings of the applicant in the photographs – where the applicant was subsequently issued with a Notice to Leave by the second respondent – where the applicant filed an “Application for minor civil dispute – residential tenancy dispute” with QCAT seeking orders that the Notice to Leave be set aside – where the original decision maker dismissed the application – where the applicant filed an application to dismiss the decision of the decision maker and an application for leave to appeal the dismissal with the QCAT appeal tribunal – where the QCAT appeal tribunal dismissed the stay application but did not deal with the application for leave to appeal – where the applicant filed an application with the Court of Appeal seeking leave to appeal to set aside the decision of the QCAT appeal tribunal on the stay application – whether the Court of Appeal has jurisdiction to hear the application – whether the applicant could identify any error of law – whether the QCAT appeal tribunal decision maker’s decision constituted a “final decision” – whether leave to appeal should be given / Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 11, s 58, s 142, s 145, s 147, s 149, s 150 / Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 203, s 291 / Pivovarova v Michelsen (2019) 2 QR 508; [2019] QCA 256, applied
COUNSEL: The applicant appeared on his own behalf / The director of the first respondent appeared for the first respondent / No appearance for the second respondent
SOLICITORS: The applicant appeared on his own behalf / The director of the first respondent appeared for the first respondent / No appearance for the second respondent
Preliminary observations
Two preliminary observations should be made.
First, Mr Kerr approached the application for leave to appeal as an application pursuant to s 150 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act). That section permits an appeal to the Court of Appeal from a “final decision” of the QCAT appeal tribunal, though only on a question of law and with the Court’s leave. It will appear that even if the decision of Acting Senior Member Fitzpatrick could be regarded as a final decision, the application would fail because it did not raise a question of law. It will also appear that there is reason to doubt, first, that the decision could be so regarded and, second, whether an appeal lies at all from the type of decision which the Acting Senior Member made. Although we will address some further remarks to that topic, because the issue was not argued we will not seek to express a concluded view on the question.
Second, it will also appear that the appeal record in this Court was deficient in many respects. Mr Kerr sought to address some of those deficiencies by seeking this Court’s leave to rely on further evidence, as contained in his affidavits affirmed on 27 October 2022, 28 December 2022, and 10 February 2023. As to that application:(a)Leave to rely on the affidavit affirmed on 27 October 2022 should be given because that affidavit identifies the content of further procedural steps taken in the QCAT appeal tribunal not otherwise contained in the appeal record.(b)Leave to rely on the affidavit affirmed on 28 December 2022 should be refused. It contains details of the relationship between the first respondent and people other than Mr Kerr. It does not contain material which is relevant to the application before this Court.(c)Leave to rely on the affidavit affirmed on 10 February 2023 should be refused as it does not actually contain any supplementary material but expresses only argument.
Factual Background
Mr Kerr is the lessee of a home unit in Calliope. The unit is owned by the second respondent who appointed the first respondent to sell the property on his behalf. A notice of intention to sell was sent by the first respondent to Mr Kerr on 28 April 2022. On 3 May 2022 the first respondent sent Mr Kerr an email enclosing a photographic consent form. The consent form was sent by the first respondent to Mr Kerr because s 203 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRAA) prohibits a person photographing a rental property if the photograph includes “something belonging to the tenant” in the absence of the written consent of the tenant.
The draft of the tenant consent form provided what Mr Kerr referred to as an “open consent”; that is, a consent to show any of Mr Kerr’s belongings in photographs. In an email dated 3 May 2022 Mr Kerr replied that he was not inclined to give an open consent and required the agent to undertake to avoid the inclusion of his property from photographs wherever possible.
The first respondent’s sales agent, Mr Crick, responded by email at 9.50 am on 4 May 2022 noting that Mr Crick had tried to call Mr Kerr on 3 May 2022 unsuccessfully to “chat about” his request to have his belongings not photographed. Mr Crick’s email records his understanding that privacy is of importance to Mr Kerr and advised that if the agency could not get updated photographs of the property to show prospective buyers, then Mr Kerr would be inconvenienced by the necessity to conduct more inspections. Mr Crick’s email notes his understanding that Mr Kerr did not want his personal belongings photographed and recommended that Mr Kerr remove any private items or items which may identify him to preserve Mr Kerr’s privacy. Mr Crick concluded his email by stating “I hope we are able to work something out and get some photos of the property at your convenience.”
On 4 May 2022, Mr Kerr replied by email that he was reluctant to have his personal belongings feature in any photographs and sought an undertaking the agent would make an effort to avoid inclusion of personal belongings in the photographs. Mr Kerr concluded his email by stating that “I am not trying to prevent you marketing the property. I believe we should have a chat to understand how we can enable you to get your photographs. I will be available at 2.00pm today, if that is suitable give me a call at that time.”
The application to QCAT
Section 11 of the QCAT Act confers jurisdiction on QCAT to determine certain “minor civil disputes”, as defined in sch 3 to the QCAT Act.
On 9 June 2022, Mr Kerr filed an “Application for minor civil dispute – residential tenancy dispute” with QCAT seeking orders that the Notice to Leave dated 12 May 2022 be set aside under ss 291(1), (2) and (3) of the RTRAA. Section 291 of the RTRAA provides:
“291****Notice to leave for end of fixed term agreement
(1)The lessor may give a notice to leave the premises to the tenant if the residential tenancy agreement is a fixed term agreement and the notice relates to the end of the agreement.
(2)However, the lessor must not give a notice to leave under this section because—
(a) the tenant has applied, or is proposing to apply, to a tribunal for an order under this Act; or
(b) the tenant—
(i) has complained to a government entity about an act or omission of the lessor adversely affecting the tenant; or
(ii) has taken some other action to enforce the tenant’s rights; or
(c) an order of a tribunal is in force in relation to the lessor and tenant.
(3)Also, the lessor may not give a notice to leave under this section if the giving of the notice constitutes taking retaliatory action against the tenant.”
Amongst other assertions which Mr Kerr advanced in that application were the following:(a)that he received no further communication after his 4 May 2022 email until, on 12 May 2022, he received a notice to leave the premises;(b)that he sought mediation through the Residential Tenancy Authority (RTA), which the agency refused, following which on 3 June 2022 he was provided a 'Notice of unresolved dispute' from the RTA;(c)that the second respondent had breached s 291(2)(b)(ii); and(d)that the second respondent had breached s 291(3).
Mr Kerr’s application, which was given the case number T75/22, was heard before Magistrate McInnes on 23 June 2022. Magistrate McInnes recorded that Mr Kerr appeared in person; Mr Fieldus, director of the first respondent, appeared for the respondents; and that both parties were sworn or affirmed. The appeal record before this Court does not reveal the content of either the evidence or the submissions received by Magistrate McInnes on 23 June 2022. However, there is no complaint by Mr Kerr that he was not given full opportunity to present his case before Magistrate McInnes on 23 June 2022.
The result of the hearing, as recorded by Magistrate McInnes, was “Mr Kerr’s application is dismissed. Mr Fieldus’ application is redundant and is dismissed without hearing it.”
On 1 July 2022 Mr Kerr lodged an email request for reasons for Magistrate McInnes’ decision.
The appeal record before this Court does not reveal what response was received to that request, or any direct evidence of what might have been the Magistrate’s reasons for the dismissal of Mr Kerr’s application. Secondary evidence of the Magistrate’s reasons was contained in reasons subsequently received from the QCAT appeal tribunal (to which reference will later be made) in the following terms:
“The Tribunal below determined an application for minor civil dispute – residential tenancy dispute filed by Mr Kerr. Mr Kerr sought an order to set aside a Notice to Leave dated 12 May 2022, under s 292(1)(2)(4) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRAA). Mr Kerr argued that the Notice was given in contravention of s 291 of the RTRAA, that is, it was given in retaliation for a failure to consent to the use of photographs of the property. Mr Kerr said that the request for consent to photograph the property was discussed in an exchange of emails over 3 and 4 May 2022, which remained unresolved.
The Magistrate noted that the lessor delivered a Notice of Intention to Sell to Mr Kerr on 28 April 2022 and thereafter delivered a Notice to Leave on 12 May 2022. The Magistrate concluded that the reason for delivery of the Notice to Leave was because the Landlord wished to sell the property without a tenant in possession. The fact that the Notice of Intention to Sell was delivered before any failure to agree in relation to the taking of photographs gave rise to the inference on which the Magistrate relied, that the reason for delivery of the Notice to Leave was simply the desire to sell the property and not because of any unresolved views in relation to photographs. The Magistrate was not satisfied that the Notice to [L]eave was given in contravention of s 291 of the RTRA.
For those reasons the Magistrate dismissed Mr Kerr’s application.”
Mr Kerr’s two applications to the QCAT appeal tribunal
“147****Deciding appeal on question of fact or mixed law and fact
(1)This section applies to an appeal before the appeal tribunal against a decision on a question of fact only or a question of mixed law and fact.
(2)The appeal must be decided by way of rehearing, with or without the hearing of additional evidence as decided by the appeal tribunal.
(3)In deciding the appeal, the appeal tribunal may—
(a) confirm or amend the decision; or
(b) set aside the decision and substitute its own decision; or
(c) set aside the decision and return the matter to the tribunal or other entity who made the decision for reconsideration.”
On 15 July 2022, Mr Kerr filed with the QCAT appeal tribunal an application for leave to appeal the decision of Magistrate McInnes. The application was given the case number APL208-22. The application identified the grounds of appeal as being “mixed fact and law”, but contended that further reasons had been requested and that the application could not proceed until they were received. It also suggested that Magistrate McInnes had misinterpreted ss 291(2)(b)(ii) and (3) of the RTRAA. The orders sought by the application were –(a)that the Notice to Leave dated 12 May 222 be set aside and that the agent and or the owners must negotiate with the tenant to find resolution;(b)that the respondents pay the applicant’s reasonable costs as determined by the appeal tribunal; and(c)that Mr Kerr be given leave to join the owners of the property as co-respondents in the matter.
It appears from secondary evidence in the appeal record before this Court that on 15 July 2022 Mr Kerr filed with the QCAT appeal tribunal a further application, namely an application to stay the decision of Magistrate McInnes. The appeal record before this Court did not contain a copy of that application, or on what basis it was suggested that a stay should be ordered. In any event, it would appear that Mr Kerr’s application to stay was quite misguided. The decision of Magistrate McInnes was to dismiss Mr Kerr’s application. Magistrate McInnes did not make any positive orders that were capable of being subject to a stay.
In any event the next relevant step seems to have involved the QCAT appeal tribunal making directions on both applications which had been filed by Mr Kerr. The appeal record in this Court contained only the first page of directions made on 20 July 2022 by the QCAT appeal tribunal by Senior Member Howard in case number APL208-22. The directions recorded as the “initiating document” both of the applications which Mr Kerr had made to the QCAT appeal tribunal referred to above. As to the conduct of the application to stay Magistrate McInnes’ decision, Mr Kerr was directed to file and serve submissions by 5 August 2022 (including details of any alleged errors the tribunal had made in terms of errors of law and/or fact in making the decision of 23 June 2022) and for the respondent to file and serve its submissions by 12 August 2022. The directions then provided that unless otherwise ordered the application to stay would be determined on the papers As to the conduct of the application for leave to appeal or appeal, directions were made but were apparently expressed in the missing pages from the directions and are not otherwise contained in the appeal record in this Court.
The appeal record in this Court does not reveal whether Mr Kerr complied with the directions to file submissions in relation to his application to stay. The appeal record does reveal that on 31 August 2022, Mr Kerr filed amended written submissions with the QCAT appeal tribunal in relation to case number APL208-22. However, those submissions contain argument as to the merit of the application for leave to appeal but not as to the merit of the application to stay. Whether those submissions were intended to be Mr Kerr’s submissions on the application to stay is unclear.
“IT IS THE DECISION OF THE APPEAL TRIBUNAL THAT:
1.The application to stay a decision is dismissed.
REASONS:
1.No error of law or fact has been identified which would justify the grant of leave to appeal or appellate intervention
2.The balance of convenience favours the owner of the property dealing with his property in accordance with his intention to sell and to require vacant possession”.
“Mr Kerr requires leave to appeal in this matter. To obtain an order for a stay he must demonstrate exceptional circumstances.1
Further, a successful party in litigation is entitled to the fruits of its judgment. The decision is not provisional pending the outcome of any appeal.2
The Appeal Tribunal has a wide discretion in relation to the grant of a stay. The relevant considerations include:
(a) whether on a preliminary assessment the applicant has a good arguable case on appeal; and
(b) whether the balance of convenience favours the granting of a stay. Relevant factors may be whether the refusal of stay would render the appeal nugatory, the impact of a stay on both parties, and the public interest.”
(d)The Acting Senior Member then explained why she did not consider that Mr Kerr had a good arguable case on appeal. Principally that was because she thought that the material before the Magistrate was such that the findings of fact which the Magistrate made were open to him. In those circumstances she declined to find there was a good arguable case that the Magistrate had erred. Having done so she expressed the view that the balance of convenience favoured the landlord being in the position of being able to sell his property.
(e)The Acting Senior Member recognized that her decision might operate to render the appeal nugatory. In making that observation she was plainly contemplating the possibility that the property might be sold before the appeal was heard. However, she concluded that in terms of the public interest in finality of litigation and management of scarce public resources a stay could not be justified where there was an unmeritorious claim.
It will be apparent from the foregoing that the decision of Acting Senior Member Fitzpatrick was explicitly not a decision on the application for leave to appeal to the QCAT appeal tribunal. It was only a decision on the application to stay the operation of the decision being appealed from, namely the decision of the Magistrate. The appeal record before this Court does not reveal whether the Acting Senior Member had been constituted as the tribunal for the appeal. If she had been so constituted, then her decision should be regarded as addressing whether to exercise the power to stay pursuant to s 145(4)(a) of the QCAT Act. If she had not been so constituted then because she is not a judicial member, she would not be able to exercise power under s 145. Her decision could then only be regarded as addressing whether to exercise the power to stay under s 58 of the QCAT Act (which gives QCAT the power to make an interim order to protect a party’s position for the duration of a proceeding).
The appeal record before this Court did not reveal what has happened to the application for leave to appeal to the QCAT appeal tribunal. During submissions, Mr Kerr informed the court that he was still resident in the property and that it has not been sold. It would appear therefore that, at least at present, the appeal to the QCAT appeal tribunal has not yet been rendered nugatory.
The application to this Court
On 4 November 2022, Mr Kerr filed an application with the Court of Appeal seeking leave to appeal to set aside the decision of Acting Senior Member Fitzpatrick of the QCAT appeal tribunal on 29 September 2022 with consequential orders that the matter be referred back to the QCAT appeal tribunal with directions and that this Court make costs orders in favour of the applicant.
As previously mentioned, Mr Kerr approached the application on the basis that it was authorised pursuant to s 150 of the QCAT Act. Section 150(3) of the QCAT Act provides:
“150 Party may appeal—decisions of appeal tribunal
(1) A person may appeal to the Court of Appeal against a decision of the appeal tribunal to refuse an application for leave to appeal to the appeal tribunal.
(2) A party to an appeal under division 1 may appeal to the Court of Appeal against the following decisions of the appeal tribunal in the appeal—
(a) a cost-amount decision;
(b) the final decision.
(3) However, an appeal under subsection (1) or (2) may be made—
(a) only on a question of law; and
(b) only if the party has obtained the court’s leave to appeal.”
“The legislative policy is reinforced by the statement in s 153(1) of the QCAT Act that s 153 (which confers powers upon the Court of Appeal in deciding appeals) “applies to an appeal before the Court of Appeal against a decision of the tribunal on a question of law only”. In that provision the word “only” qualifies “a question of law”, whereas s 150(3)(a) allows an appeal to be made “only on a question of law”. The latter expression, if considered in isolation from its context, is open to the construction that the only kind of appeal that may be made is an appeal “on a question of law”, rather than a construction that the appeal is confined to “a question of law only” (which is a pure question of law). Because s 153 is plainly designed to comprehend an appeal under s 150, the implication is that, consistently with the statutory context already discussed and Rothman J’s conclusion in Bagumya v Kakwano, an appeal under s 150 is confined to one made on a question of law only.”
Fraser JA concluded that s 150(3)(a) allowed only for an appeal on questions of law to be heard by the Court of Appeal and not a mixed question of fact and law.
In his submissions before this Court Mr Kerr was unable to identify any error of law made by Acting Senior Member Fitzpatrick in her decision to refuse the stay. Indeed, it became apparent during his argument that his real complaint was that the Magistrate had erred in not drawing the inferences which he had invited the Magistrate to draw, namely that the notice was issued as retaliation or as a result of Mr Kerr enforcing his tenancy rights. He was unable to explain why Acting Senior Member Fitzpatrick had erred in law in concluding that it was open to the Magistrate not to draw those inferences.
No error of law having been identified, any application for leave to appeal pursuant to s 150 would fail.
As previously noted however, there is reason to doubt that Mr Kerr’s application to this Court could properly be regarded as an application pursuant to s 150. This question was not the subject of argument by Mr Kerr, nor was there any effective contradictor to Mr Kerr’s assumption that this Court had jurisdiction to entertain his application. Accordingly, no concluded view should be expressed. Nevertheless, we observe:(a)Section 150(1) could not apply because the decision of Acting Senior Member Fitzpatrick did not refuse an application for leave to appeal to the appeal tribunal.(b)For the purposes of s 150(2), “final decision” means “the tribunal’s decision that finally decides the matters the subject of the proceeding”.3 In the context of s 150(2), the proceeding should be regarded as the appeal under div 1. But the decision of Acting Senior Member Fitzpatrick only refused a stay application. Although it expressed the view that there was no good arguable case on appeal, the decision could not be regarded as finally deciding the matters the subject of the appeal because it was not a decision made by the appeal tribunal on the application for leave to appeal. Accordingly, there being no “final decision”, s 150(2) would not apply.(c)The only other avenue to appeal to the Court of Appeal is expressed in s 149. But s 149(1) would not apply as the decision was not a “cost-amount decision”. Section s 149(2) would not apply because Acting Senior Member Fitzpatrick is not a judicial member. It might have been different had she been a judicial member. Then her exercise of the jurisdiction under s 145 might, arguably, be regarded as a decision to which s 149(2) of the QCAT Act applied, thereby enabling an appeal to this Court by leave on questions of fact or mixed fact and law. That would depend on a conclusion that the application to stay should be regarded as a “proceeding relating to an application for leave to appeal”.4(d)If the decision of Acting Senior Member Fitzpatrick should be regarded as addressing a possible exercise of power under s 58, it may be that an appeal might lie to the QCAT appeal tribunal under s 142 of the QCAT Act. But that would not justify the present application to this Court.(e)The result appears to be that this Court has no jurisdiction to entertain Mr Kerr’s application, thereby also justifying an order that the application for leave to appeal should be refused.
Order
Kerr
Ray White Gladstone Residential & Anor [2023] QCA 106
The next relevant event revealed in the appeal record before this Court seems to have involved the QCAT appeal tribunal deciding Mr Kerr’s application to stay the decision of the Magistrate. The decision was expressed in a single page document headed “Appeal Tribunal Decision” and was dated 29 September 2022. The document referred to case number APL208-22 and recorded as the “initiating document” the application for leave to appeal or appeal. It then merely provided: