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Underwood v Department of Communities


[2013] QCA 234











Appeal No 4652 of 2013

Appeal No 6413 of 2013

Appeal No 6414 of 2013

Appeal No 4653 of 2013

Appeal No 6410 of 2013

Appeal No 6411 of 2013

QCAT No 75 of 2012

QCAT No 184 of 2012











AND HOUSINGRespondents






HOLMES JA:  The appellant has filed six appeals in this court, three against the Department of Housing and Public Works and three against the Department of Communities and the Minister for Communities and Housing.  They arise out of two sets of proceedings in the appeal tribunal of the Queensland Civil and Administrative Tribunal, involving appeals from decisions of the Information Commissioner.  Under s 119 of the Right to Information Act 2009, certain decisions of the Commissioner may be appealed, on a question of law, to the appeal tribunal of the Queensland Civil and Administrative Tribunal.

Part 8, division 1 of the Queensland Civil and Administrative Tribunal Act 2009 deals with appeals to the appeal tribunal.  Section 143 applies to an appeal to the appeal tribunal against a decision of another entity under an enabling act, by virtue of s 143(1)(b)(ii);  the appellant’s appeals to QCAT against the Information Commissioner’s decisions were such appeals.

The appeals to this Court were brought against a series of decisions of Justice Alan Wilson, sitting as the appeal tribunal of QCAT.  They were, to grant the Department of Housing and Public Works and the Minister for Housing and Public Works leave to be represented; to refuse applications by the appellant for leave to deliver interrogatories, seek admissions of fact and have the respondents respond to notices to produce; to refuse the provision of legal representation at public expense to the appellant; to refuse to strike out a senior member’s directions order about the exchange of submissions; to refuse applications for extensions of time within which to take steps in the tribunal; to refuse an application for an order requiring the Information Commissioner to remove reference to the decision from his website (that is to say, the decision the subject of the appeals to QCAT); and to refuse the stay of some of the decisions of Justice Alan Wilson already referred to.

Section 150(2) of the Queensland Civil and Administrative Tribunal Act permits a party to an appeal under division 1 to appeal to this court against a cost amount decision or the final decision of the appeal tribunal in the appeal.  “Final decision” is defined in schedule 3 of the Act as meaning “the tribunal’s decision that finally decides the matters the subject of the proceeding; and … for chapter 2 part 7, division 4— see section 129.”  It is the latter on which the appellant has relied in her arguments today, so it requires some elaboration.  Section 129 provides that in division 4, which is headed “Enforcing final decision”, the final decision of the tribunal in a proceeding includes:

“(a)an interim order under section 58; and

(b)an injunction under section 59; and

(c)a monetary decision made other than as part of the tribunal’s final decision in the proceeding.”

The appellant argues that since she unsuccessfully sought an injunction against the Information Commissioner in relation to the publication of details of a decision on his website, that brings her case within a final decision in that section.  But the problem of course is evident: there was no injunction; there was a refusal of an injunction.  The appellant cannot bring herself within that definition of a final decision in s 129.  The appeals here do not concern any final decision about the Information Commissioner’s decisions, which were the subject of the appellant’s QCAT appeals.  Being from interlocutory orders of the appeal tribunal and not from either cost amount decisions or final decisions, they are incompetent.  The appellant had sought consolidation of the appeals, but those applications and the appeals themselves must be dismissed.

MORRISON JA:  I agree.

NORTH J:  I agree.

HOLMES JA:  The applications for consolidations and the appeals are dismissed.  The appeals were incompetently instituted.  The respondent should have its costs limited to the costs of today’s hearing.  That is the order: that the appellant pay the respondent’s costs of today’s hearing only.


Editorial Notes

  • Published Case Name:

    Underwood v Department of Communities & Ors

  • Shortened Case Name:

    Underwood v Department of Communities

  • MNC:

    [2013] QCA 234

  • Court:


  • Judge(s):

    Holmes JA, Morrison JA, North J

  • Date:

    26 Aug 2013

Litigation History

Event Citation or File Date Notes
Primary Judgment - - QCAT
Appeal Determined (QCA) [2013] QCA 234 26 Aug 2013 -

Appeal Status

{solid} Appeal Determined (QCA)