Daniell v Nounnis [2017] QCA 150

SUPREME COURT OF QUEENSLAND CITATION: Daniell v Nounnis & Anor [2017] QCA 150 PARTIES: JANINE DANIELL (appellant) v PHILIP NOUNNIS (first respondent) MARINA NOUNNIS (second respondent) FILE NO/S: Appeal No 12347 of 2016 SC No 8274 of 2016 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: Supreme Court at Brisbane – Unreported, 31 October 2016 DELIVERED ON: 18 July 2017 DELIVERED AT: Brisbane HEARING DATE: 12 July 2017 JUDGES: Gotterson JA and Atkinson and Applegarth JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made ORDERS: 1. Leave to adduce further evidence refused. 2. Appeal dismissed. 3. The appellant is to pay the respondents’ costs of the appeal on the standard basis. CATCHWORDS: APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – OTHER MATTERS – where the appellant commenced a proceeding by way of Originating Application in the Supreme Court against five respondents – where the third respondent in that matter successfully brought an application to strike out several orders listed in the Originating Application – where the appellant appeals against that decision – where the respondents named in the Notice of Appeal were neither the respondents to the Originating Application nor the applicants in the strike out application – whether the appeal is therefore incompetent – whether the appeal ought be dismissed LANDLORD AND TENANT – RESIDENTIAL TENANCIES LEGISLATION – OTHER MATTERS – where the appellant’s details were listed on a tenancy database allegedly held by the respondents – where the Residential Tenancies and Rooming -- 1 of 4 -- 2 Accommodation Act 2008 (Qld) (“the Act”) stipulates that information concerning a tenant may be kept on a tenancy database for a maximum of three years – where the Act provides for a statutory remedy in the Queensland Civil and Administrative Tribunal if this section is breached – where the learned primary judge accordingly found it inappropriate for the Supreme Court to deal with the matter – whether the learned primary judge erred in making the orders under appeal Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 457, s 459D, s 460, s 464 COUNSEL: The appellant appeared on her own behalf C J Crawford for the respondents SOLICITORS: The applicant appeared on her own behalf Rouse Lawyers for the respondents [1] GOTTERSON JA: On 15 August 2016, the appellant, Janine Daniell, commenced a proceeding by way of Originating Application in the Supreme Court of Queensland against five respondents.1 The named Third Respondent was “T.I.C.A. (Tenancy Information Centre Australasia)”. Orders 2, 3, 6, 7, 8, 9, 16 and 17 listed in this application were orders sought against the Third Respondent relating to the listing of her personal information on searchable databases. [2] I note, at this point, that the correct name of the entity which the appellant intended to be the Third Respondent is “TICA Default Tenancy Control Ltd ACN 087 400 397” (“TICA”). The sole director of TICA is Mr Philip Mark Nounnis.2 TICA operates a tenancy database within the meaning of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (“the Act”).3 [3] The Originating Application was to be heard on 31 October 2016. On 28 October 2016, TICA filed an application returnable on that date in which it sought by way of substantive relief, the striking out of the Originating Application in its entirety or, alternatively, so far as it related to TICA.4 TICA’s application was heard by a judge of the Trial Division on 31 October 2016. His Honour made orders that day amending the Third Respondent’s name to the correct one, striking out the orders which I have identified by number and ordering the appellant to pay TICA’s costs of its application. He also gave short ex tempore reasons for the orders made. [4] On 28 November 2016, the appellant filed a Notice of Appeal against the orders made on 31 October 2016.5 Incompetency of the appeal [5] The Notice of Appeal names as respondents to the appeal “Mr Phillip Nounnis and Ms Marina Nounnis (owners of TICA Default Tenancy Control)”. TICA is not a respondent to the appeal. Mr and Mrs Nounnis were not respondents to the Originating 1 AB176-182. 2 Affidavit P M Nounnis sworn 28 October 2016, para 1; AB135. 3 Ibid para 3; AB135. 4 AB257-258. 5 AB268-277. -- 2 of 4 -- 3 Application; nor were they applicants in TICA’s application. They are therefore not competent respondents to an appeal against the orders made on TICA’s application. As they are the only named respondents to this appeal, it is incompetent on that account. That, of itself, would be a sufficient ground for dismissing the appeal. Notwithstanding that, the appeal is one that must be dismissed on the merits for the following reasons. Dismissal on the merits [6] There was evidence before his Honour that TICA has operated a Members’ Database which lists historical information about individuals who have rented residential premises.6 The appellant is such a person, the details for her listings having been provided by a real estate agency member of TICA. The listings were effected on 14 August 2012 and 2 January 2013.7 [7] Section 459D of the Act was enacted with effect from 1 July 2016. It stipulates that information concerning a tenant may be kept on a tenancy database for a maximum of three years. There was further evidence before his Honour that the listings of the appellant on the Members’ Database were removed once the amendment took effect.8 [8] The learned primary judge relied on this evidence in reasoning to a conclusion as follows:9 “… The applicant does not accept, factually, that her name has been removed from the third respondent’s database but there is provision under section 460 of the Residential Tenancies and Rooming Accommodation Act 2008 for her to apply to QCAT about an alleged breach relating to the listing of personal information about the tenant on a tenancy database. That appears to have been the source of her complaint against this respondent and a number of other respondents which I gather has been heard partly in QCAT, partly in the Magistrates Court and partly in the District Court. I was at first inclined to allow the adjournment she requested on the basis that she contested the factual issue as to whether her name was still accessible on the database but, having regard to the statutory remedy of going to QCAT, it seems to me to be quite inappropriate for this Court to deal with the matter where parliament has created an appropriate alternative remedy. …” [9] On appeal, the appellant does not contend that his Honour misconstrued the relevant provisions of the Act concerning the availability of a statutory remedy in the Queensland Civil and Administrative Tribunal for breach of the Act relating to the listing of personal information about a tenant on a tenancy database, including compensation.10 Nor did the appellant maintain that personal information about her had not been deleted from TICA’s Members’ Register. [10] In oral submissions, the appellant focused upon Exhibit “PN-2” to Mr Nounnis’s affidavit. This exhibit was the product of a contemporaneous search of an Historical 6 Affidavit P M Nounnis sworn 28 October 2016, para 4; AB135. 7 Ibid para 10; AB137. 8 Ibid paras 13, 15; AB137, AB138. 9 AB267. There is no appeal against the refusal of the adjournment. 10 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 460, 464. -- 3 of 4 -- 4 Database also maintained by TICA. This database is a record of all historical searches made of the Members’ Database. It is not publicly accessible.11 The exhibit revealed personal information concerning the appellant specifically her name and date of birth. It also revealed that the appellant’s name had been searched by members of TICA on six occasions. [11] The appellant suggested that the learned primary judge had not appreciated that this database was also a tenancy database within the meaning of the Act and that the orders sought in the Originating Application were necessary on account of the listing of personal information about her on it. In this way, it was further suggested, his Honour had erred. [12] I would accept that it is arguable, but by no means certain, on the evidence before the learned primary judge, that the Historical Database is a tenancy database as defined in s 457 of the Act. It is unnecessary for present purposes to reach a conclusion on that issue. If the Historical Database is a tenancy database, then the appellant has access to the statutory remedy in QCAT to which his Honour referred. [13] On the other hand, if it is not a tenancy database so defined, the statutory remedy would not be available. Notwithstanding, the appellant did not venture a sound legal basis for a remedy with respect to it according to general law principles in circumstances where it is not publicly accessible. Nor has she done so on appeal. [14] In the course of submissions, the appellant referred to “contracts” between her and TICA. There is no evidence at all of any contractual relationship between her and TICA from which any contract-based remedy might have arisen. I would add that additional material for which the appellant sought leave to adduce as evidence on appeal would not have advanced her case as to remedies against TICA. [15] The appellant has failed to establish legal error on the part of the learned primary judge in making the orders under appeal. Her appeal must therefore be dismissed. She ought pay the respondents’ costs of the appeal on the standard basis. [16] I would propose the following orders: 1. Leave to adduce further evidence refused. 2. Appeal dismissed. 3. The appellant is to pay the respondents’ costs of the appeal on the standard basis. [17] ATKINSON J: I agree with the orders proposed by Gotterson JA and with his Honour’s reasons. [18] APPLEGARTH J: I agree with the reasons of Gotterson JA and with the orders proposed by his Honour. 11 Affidavit P M Nounnis sworn 28 October 2016, para 4. -- 4 of 4 --