Egan v Stanley [2025] QCATA 102

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Egan v Stanley [2025] QCATA 102 PARTIES: PRUE EGAN (applicant) v MARK STANLEY (respondent) APPLICATION NO/S: APL308-24 ORIGINATING APPLICATION NO/S: MCD Q4432-24 (Brisbane) MATTER TYPE: Appeals DELIVERED ON: 27 October 2025 HEARD AT: Brisbane DECISION OF: Senior Member Lember ORDERS: DECISION: Leave to appeal is granted. The appeal is allowed. The decision made in MCD Q4432-24 on 26 September 2024 is set aside and substituted with a decision that: The application of the respondent filed on 9 September 2024 for leave to be represented by John Egan in the proceeding is granted. DIRECTIONS: 1. Each party is directed to file in the Tribunal on MCD Q4432-24, and give a copy to each other party, of any further evidence that it wishes to rely upon at the final hearing, by no later than 17 November 2025. 2. The tenancy dispute is listed for a final hearing on the earliest date to be fixed, not before 24 November 2025. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where application for termination of a residential tenancy dispute – where tenant applied for leave to be represented by her father in the proceeding – where representative was not a legal -- 1 of 4 -- 2 practitioner - where decision refusing leave to be legally represented made in error where such leave was not sought Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 43, s 143, s 147 Cachia v Grech [2009] NSWCA 232 Colonial Bank of Australasia v Willan (1874) LR 5 PC 417, 40-42 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 House v R (1936) 55 CLR 499 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). REASONS FOR DECISION What is this application about? [1] Ms Egan is the former tenant of Mr Stanley, who, by an application for minor civil dispute – residential tenancy dispute filed 21 June 2024 sought orders claiming the bond held by the Residential Tenancies Authority for the tenancy as well as compensation for various claims arising from the condition in which Ms Egan is alleged to have left the property when her tenancy ended. [2] On 9 September 2024, Ms Egan filed an application for leave to have her father, Mr Egan, represent her in the tenancy proceedings. He had, her application said, represented her in the Residential Tenancies Authority dispute resolution processes that preceded the tenancy application being brought, was not a legal practitioner and was present when the property was being exited. [3] By a decision made 26 September 2024, a Tribunal Adjudicator refused Ms Egan’s application “to have legal representation at the hearing” where no such leave was sought. Ms Egan filed an application for leave to appeal and to appeal that decision.1 [4] By directions made 29 October 2024, the Appeal Tribunal advised the parties of its intention to consider whether to grant leave to appeal, allow the appeal, set aside the decision and substitute it for a decision permitting Ms Egan leave to be represented in the proceeding by Mr Egan because: (a) The decision the subject of the application for leave to appeal or appeal is a decision by an Adjudicator to refuse Ms Egan “leave to have legal representation”. 1 Application for leave to appeal or appeal filed 10 October 2024. -- 2 of 4 -- 3 (b) Ms Egan filed two applications for leave for Mr Egan to represent her in the proceedings, both of which disclose, clearly, that Mr Egan is not a legal practitioner. (c) The Tribunal appears to have erred in refusing the application for leave to be represented under mistake as to Mr Egan’s status as a layperson, as opposed to a legal practitioner. It was an error to refuse Ms Egan leave for legal representation that she did not seek. (d) Further, respectfully, having regard to the supporting information tendered by Ms Egan,2 the learned Adjudicator’s decision to refuse leave to be non-legally represented went against the weight of evidence that was then before him having regard to s 43(4)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). (e) A decision permitting non-legal representation is an outcome that would permit the minor civil dispute hearing in Q4432-24 to proceed fairly and expeditiously. [5] Neither party filed submissions in response to the invitation to do so contained in those directions. Unfortunately, the file was not referred to the Appeal Tribunal for a decision until recently. [6] By s 142(3) of the QCAT Act, Ms Egan requires leave to appeal the decision. In determining whether to grant leave, the Appeal Tribunal must be satisfied that: (a) there is a reasonably arguable case of error in the primary decision;3 (b) there is a reasonable prospect that the appellant will obtain substantive relief;4 (c) leave is need to correct a substantial injustice caused by some error;5 or (d) there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.6 [7] Although there is a presumption in favour of an exercise of discretion, it is an error of law for a decision-maker to make a decision acting on a wrong principle, or that is which is manifestly unreasonable because it failed to give adequate weight to a relevant factor of great importance or gave excessive weight to extraneous matters.7 [8] Here, the learned Adjudicator made a mistake as to fact, namely that Mr Egan was a legal practitioner when he was not, and an error of law by acting on a wrong principle, by considering application as one for legal representation and by failing to consider appropriateness of a non-legal representative to represent under s 43(4)(b) of the QCAT Act. [9] By refusing leave for legal representation, where the application before the Tribunal was: 2 In respect of which a non-publication order has been made. 3 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 (QUYD). 4 Cachia v Grech [2009] NSWCA 232, 2. 5 QUYD (n 3). 6 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 577, 580. 7 Colonial Bank of Australasia v Willan (1874) LR 5 PC 417, 40-42; House v R (1936) 55 CLR 499. -- 3 of 4 -- 4 (a) for leave to be represented by a non-lawyer, and (b) supported by the history of Mr Egan’s involvement in the case including pre- hearing dispute resolution procedures, and (c) supported by evidence as to Ms Egan’s particular circumstances and needs, the Tribunal below has clearly erred. [10] Leave to appeal is granted because the decision refusing leave is infected by that error and Ms Egan would suffer a substantial injustice if leave to appeal were not granted. The appeal is allowed, and the decision is set aside. [11] Pursuant to s 147 of the QCAT Act, as the appeal has been decided on a question of mixed law and fact, upon a rehearing of the application for leave to be represented, the decision of the Appeal Tribunal is to grant Ms Egan leave to be represented in the proceeding by her father, Mr Egan. [12] Although s 43 of the QCAT Act provides that parties will represent themselves unless the interest of justice require otherwise, the Tribunal is satisfied that the circumstances of the dispute, Mr Egan’s involvement in it and Ms Egan’s particular needs are such that representation will assist Ms Egan to properly respond to the application and will assist the tribunal to hear the matter with a vulnerable party properly represented. The Appeal Tribunal is satisfied that Mr Stanley will not be disadvantaged by granting Ms Egan leave to be represented in those circumstances. [13] The tenancy dispute should proceed to final hearing as soon as possible on that basis and directions are made accordingly. -- 4 of 4 --