Armstrong v Plumbing Industry Council [2013] QCATA 355

CITATION: Armstrong v Plumbing Industry Council [2013] QCATA 355 PARTIES: Gary Armstrong (Appellant) v Plumbing Industry Council (Respondent) APPLICATION NUMBER: APL509-13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Acting Senior Member Howard DELIVERED ON: 20 December 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The application to stay the decision is refused. CATCHWORDS: APPLICATION TO STAY DECISION UNDER APPEAL- whether application for stay can be properly made or granted in circumstances where leave to appeal must be obtained before appeal may proceed- whether balance of convenience favours granting a stay order- whether any utility in staying order on application for reopening, correction, renewal or amendment Acts Interpretation Act 1954 (Qld) s 14A Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 145 Deputy Commissioner Stewart v Kennedy [2011] QCATA 254 Drift Palm Cove Body Corporate CTS 36253 v Drift Palm Cove Management Pty Ltd [2013] QCATA 249 -- 1 of 4 -- 2 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] Mr Armstrong reviewed a decision made by the Plumbing Industry Council (PIC) to take disciplinary action against him which included suspending his plumbing licence and imposing a fine on him (Tribunal file OCR383-12). After hearing the review application, the Tribunal made orders which, in essence, allowed him to continue in his trade and reduced the fine imposed by the PIC, but required some rectification works be done by Mr Armstrong. The Tribunal further ordered that if he failed to pay the fine by 31 July 2013, or complete the rectification works by 31 October 2013, then his licence was suspended for 12 months following the default. [2] Subsequently, Mr Armstrong brought an application for reopening, correction, renewal or amendment (Tribunal file REO009-13) seeking orders relating to the identification of rectification work, and, in effect, an extension of time to pay the fine imposed. That application for reopening, correction, renewal or amendment was dismissed by the Tribunal following a hearing. (Orders were also made extending time for the filing of the application and refusing a stay application that had been made in that proceeding). [3] Mr Armstrong then filed an application for leave to appeal and appeal in respect of the decision dismissing his application to reopen, correct, renew or amend. He also applied for an injunction. At a directions hearing on 17 December 2013, the Tribunal ordered that the application for an interim order or injunction be treated as an application to stay the decision. [4] I determined the application for a stay. I made orders refusing it. Mr Armstrong has sought reasons for my decision. The Appeal Tribunal can, in the exercise of its discretion, make an order pursuant to s 145(2) staying the operation of the decision appealed against pending the determination of the appeal. [5] The stay application refers to the decision of PIC and QCAT to suspend Mr Armstrong‟s plumbing licence for 12 months. Mr Armstrong submits that the decision has impacted his ability to earn an income to support his family. He further argues that the actions of the PIC and the Tribunal „have intimidating, vindictive and could fall into the category of “bullying”.‟ (sic). [6] It is clear, from the material filed in the Tribunal by him, that in seeking a stay, Mr Armstrong seeks, if the stay is granted, to continue to work as a plumber. However, the decision which has apparently (the material does not reveal precisely what has occurred) resulted in the suspension of his plumbing licence was the Tribunal decision dated 10 May 2013 which was made in the review proceeding. As discussed earlier, it provided for -- 2 of 4 -- 3 suspension of Mr Armstrong‟s licence if he failed to comply with its terms. That decision has not been appealed. [7] A preliminary Issue: has an appeal been started? [8] The PIC raises an argument about whether the QCAT Act provides for a stay to be granted by the Appeal Tribunal in circumstances where an applicant requires leave to appeal before it is entitled to appeal. It submits that Mr Armstrong will only be entitled to appeal if he obtains the Tribunal‟s leave to do so. However, it says that at this stage, as there is no grant of leave to appeal, that there is no decision „appealed against‟ which could be stayed. [9] This raises a question of statutory interpretation. The interpretation which best achieves the purpose of the Act is to be preferred to any other interpretation.1 [10] Chapter 2 Part 8 of the QCAT Act is about appeals. Division 1 is entitled Appeals to appeal tribunal. It makes for provision for appeals as of right in some circumstances and only if leave to appeal is obtained in other circumstances.2 [11] Section 145 of the QCAT Act provides that the „start‟ of an appeal does not affect the operation of the decision appealed,3 but gives power to the Appeal Tribunal to stay the operation of the decision being appealed against until the appeal is finally decided.4 The „start‟ of an appeal is not defined. [12] Does the filing an application for leave to appeal constitute the starting an appeal for purposes of s145? Filing an application for leave to appeal is the manner in which a party commences an appeal proceeding if it is not entitled to appeal a decision without the Tribunal‟s leave to do so. The application for leave to appeal has no other purpose than to start an appeal, for which leave to appeal is required. [13] The principles for considering stay applications are well established. A party seeking a stay order must demonstrate an arguable case on appeal; that the party will suffer disadvantage if the stay is refused; and that the balance of convenience would favour granting a stay.5 [14] I consider it unlikely that the legislature intended, in drafting the QCAT Act, to exclude a party who or which can demonstrate an appropriate case in which the Tribunal might (in the exercise of its discretion) grant a stay order, from the possibility of applying for a stay until its application for leave to appeal is determined. Irreparable harm may have been done to 1 Acts Interpretation Act 1954 (Qld) s 14A. 2 QCAT Act ss 142-143. 3 QCAT Act s 145(1). 4 QCAT Act s 145(2). 5 For example, see discussion in Deputy Commissioner Stewart v Kennedy [2011] QCATA 254 especially at [10-14]. -- 3 of 4 -- 4 the party‟s position before the question of leave to appeal can be determined. Not being able to obtain a stay order may, in some cases, render the effect of the appeal nugatory if a party is successful on appeal. [15] Therefore, excluding parties, who or which require leave to appeal, from seeking stay orders would potentially result in unfair and unjust outcomes, whereas an object of the QCAT Act is to have the tribunal deal with matters in a way that is, among other things, fair and just.6 [16] I have reached the conclusion that the legislature did not intend for this to be so. It would not best achieve the purposes of the QCAT Act. [17] I have reached the conclusion that „start of the appeal‟ should be broadly interpreted as covering both the filing of an appeal and an application for leave to appeal. [18] Should a stay order be made? [19] Only a stay of the operation of the decision being appealed against can be granted under s 145(2).7 [20] In the circumstances of this proceeding, the only decision which I can consider making a stay order about pending the determination of the appeal, is the decision to dismiss the application to reopen, correct, renew or amend (and/or the ancillary orders made with it). If that order was stayed, the order which operated to result in the suspension of Mr Armstrong‟s licence would continue in effect. This means that even if Mr Armstrong was successful in securing the stay order he seeks, he would be in the same position regarding any suspension which has occurred for failure to comply with the orders made in the review proceeding on 10 May 2013 as he currently is. The stay order sought would appear to serve no useful purpose. [21] This being so, I have reached the conclusion that there would be no utility in making a stay order. Therefore, I find that there is no disadvantage to Mr Armstrong if he is not granted a stay order and that the balance of convenience does not favour granting a stay. [22] Having reached this conclusion, whether or not Mr Armstrong has an arguable case on the appeal does not need to be considered by me, as I would not in any event grant the stay order. [23] The application for a stay order is refused accordingly. 6 QCAT Act s3(b). 7 Drift Palm Cove Body Corporate CTS 36253 v Drift Palm Cove Management Pty Ltd [2013] QCATA 249. -- 4 of 4 --