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- Unreported Judgment
Barns & Anor v Commissioner Queensland Fire and Emergency Services QCAT 2
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Barns & Anor v Commissioner Queensland Fire and Emergency Services  QCAT 2
JAMES THOMAS BARNS
LYNETTE JOY BARNS
COMMISSIONER QUEENSLAND FIRE AND EMERGENY SERVICES
General administrative review matters
4 January 2019
31 October 2018
Member Professor Ashman
The Tribunal confirms the respondent’s decision made on 23 December 2016 not to accept the applicants’ application under s 121 of the Disaster Management Act 2003 (Qld).
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – Disaster Management Act 2003 (Qld) – where Commissioner decided not to accept a late application for compensation – where the Tribunal has jurisdiction to review decision – where the Tribunal confirmed the decision of the Commissioner
Anton Paul Lucic v Robert Nolan; Allan Nimmo Jacobs; John Langler; Brian Flynn; Sir William Cole; RJ Young; JV Monaghan  FCA 217
Barns v Commissioner, Queensland Fire & Emergency Services  QCAT 263
Barns v Commissioner, Queensland Fire & Emergency Services  QCAT 460
Bigby v Queensland Building and Construction Commission  QCAT 169
Cardillo v Queensland Building Services Authority  QCAT 574
Crime and Misconduct Commission v Chapman & Anor  QCAT 229
Greiner v Independent Commission against Corruption; Moore v Independent Commission against Corruption (1992) 28 NSWLR 125
Hunter Valley Developments Pty Limited; Anthony Neary Walker; Mende Brown v the Honourable Barry Cohen Minister of Home Affairs and Environment  FCA 176; (1984) Admn 96-034; 3 FCR 344
James Thomas Barns v Lockyer Valley Regional Council & Anor  DCQ 175
Molier v The Body Corporate for Q1 CTS 34498  QCATA 8
Workers’ Compensation Regulator v Pryszlak  QCA 157
Disaster Management Act 2003(Qld)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24, s 63
APPEARANCES & REPRESENTATION:
P A Hastie QC, instructed by Condon Charles Lawyers
M J Woodford, instructed by Crown Law
REASONS FOR DECISION
- The Disaster Management Act 2003 (Qld) (‘the DMA’, or ‘the Act’) was established to assist communities mitigate the adverse effects of an event, to prepare for, respond to, and recover from a disaster or emergency situation. It is intended to provide effective disaster management in the State of Queensland. This is achieved by a range of schemes that include establishing disaster management groups and strategies to ensure that communities receive appropriate information about a disaster and prepare them for, respond to, and recover from a disaster.
- The Act also contains provisions about compensation and insurance under Part 11. It is this part of the Act that has brought the applicant and the respondent into dispute following a severe weather event that caused serious flooding and loss of human life in the Lockyer Valley in January 2011.
- The applicants are the owners of the Murphy’s Creek Tavern (‘the Tavern’), located in an area that was significantly affected by floodwaters on 10 January 2011. Emergency services arrived in the Murphy’s Creek community to find the Tavern and the local grocery store were the only two buildings that had escaped serious inundation.
- The response to the disaster brought to Murphy’s Creek members of the Queensland Police Service (‘QPS’), Queensland Fire and Emergency Services (‘QFES’), the Department of Communities, Lockyer Valley Regional Council (‘LVRC’), Queensland Health, Centrelink and a range of non-government agencies such as Red Cross, Apex Club, St. John’s Ambulance, and telecommunication companies.
- As the Tavern was the only large building accessible immediately after the flood, rescue and recovery operations established their bases there, using a single large room as an operations centre with paddocks adjacent to, and owned by, the Tavern serving as parking areas and other uses. The Tavern, therefore, became a hub for rescue and recovery activities, and for several days provided accommodation and meals for victims, and food and operational facilities for emergency workers.
- Central to the operation of the Tavern at that time was Ms Susan Haughey, the Tavern’s manager. She was the only person on site when the flood hit the community and immediately provided support for those rendered homeless and for members of the rescue and recovery teams.
- As could be expected, those who used the Tavern’s facilities drew on its resources, not only food, but electricity, water, the use of toilets, showers, and refuse storage. These services come at various costs and soon after the flood waters dropped, the applicants began discussions with members of the Department of Communities about compensation for the use of the Tavern facilities.
- That was in January 2011. Since then, the applicants have sought additional compensation via approaches to various departments and government agencies and through applications to the District Court, the Supreme Court, and the Queensland Civil and Administrative Tribunal (‘QCAT’), all largely unsuccessfully. To gather evidence for their claims, they also sought and obtained the release of documents from a number of government sources through freedom of information provisions.
- The Tribunal’s involvement commenced on 3 February 2017 when an application for the review of a decision was lodged against the Commissioner, QFES by the applicants through their legal representative, Condon Charles Lawyers. The applicants’ application for compensation against the QFES was made under provisions contained in the Act. After consideration of the initial submission, the Commissioner determined that the application was not accepted because it was lodged out of the timeframe, that being no later than 90 days after incurring any loss or damage.
The relevant legislation
- As indicated above, the main objects of the Act are to assist communities and provide effective disaster management. The objects are primarily achieved by establishing disaster management groups, preventative strategies, and ways of responding effectively to natural situations or those caused by humans.
- Several sections of the Act have relevance to the present matter before the Tribunal. In summary, these include s 8 that applies to a person exercising declared disaster powers or rescue powers under the Act; ss 15 and 16 provide definitions for ‘disaster operations’ and ‘event’; ss 76 and 77 describe the powers and some limitation of a district disaster coordinator or a declared disaster officer; s 78 allows the disaster coordinator or officer by way of notice on the approved form or with written approval, to take control of property or have it at their disposal. Such a direction to an owner must be accompanied by a warning that failure to comply is an office unless there is a reasonable excuse.
- Part 11 of the Act describes the processes required to gain compensation. Section 119 states that a person who suffers loss or damage because of the exercise, or purported exercise, of a power under ss 77, 78, 111, or 112 is entitled to be paid just and reasonable compensation for the loss or damage incurred. Section 120 excludes payment if the damage is recoverable via insurance, if the person claiming compensation contributed to the loss or damage, or if loss or damage would have occurred in any event irrespective of the exercise, or purported exercise, of the powers described in ss 76 to 78.
- Section 121 is central to the present matter before the Tribunal. It states that a person who suffers loss or damage because of the exercise of purported exercise of a power under ss 77, 78, 111, or 122 may apply to the chief executive for compensation but the application must be made in writing within 90 days after the person suffers the loss or damage. Section 121(3) and 121(4) requires details for the loss or damage and the amount of compensation claimed, the grounds for the amount claimed, and any other relevant information reasonably required to decide the application. Section 121(5) is a form of “slip” clause that states that the application may be accepted if it is made more than 90 days after the loss or damage if the chief executive is satisfied it would be reasonable in all of the circumstance to accept the application.
- Section 123 states that the chief executive must consider and decide an accepted application with 60 days after the application or when all necessary information to decide the application is received, whichever is the later.
- Finally, s 125 provides a review option for an applicant who is dissatisfied with the chief executive’s decision to refuse payment or the amount of compensation.
The circumstances surrounding the application
- The substantive facts surrounding the application to the Tribunal are outlined below.
- As the extent of the inundation became apparent, victims who had become homeless in the locality were directed to the Murphy’s Creek Tavern. The Tavern became an operations focus for evacuation and later, recovery activities. In an email from Ms Brooke Winters (Department of Communities) to Mr Damion Lipman dated 8 March 2011, she writes, ‘The publican agreed to house the recovery centre – although it is known that he didn’t have a choice as there were no other suitable buildings.’ Ms Winters continues that the Tavern was still serving drinks and meals, with at least some of those meals based upon significant food donations that arrived once news of the disaster became widely known.
- In her email, Ms Winters quoted another from Mr Matthew Kelly who wrote that the Tavern was a community recovery centre and activities inside and outside largely revolved around the community’s self-help activities. At the same time many external support services were represented in Murphy’s Creek as minutes of the Lockyer Valley Local Disaster Management Group meetings from 13 January to 3 February attest. These reflect the intensity of recovery operations across the region at a time when there were still people whose whereabout remained unknown. By 27 January 2011, the base of the Murphy’s Creek recovery operations was in the process of being moved with all recovery activities located in the Tavern being transferred to the recreation/sports grounds by 2 February 2011.
- Discussions took place between Mr Barns and Department of Communities officers concerning compensation for expenses incurred in servicing those involved in the Department’s recovery activities. Mr Barns submitted a claim for about $33,000. Mr Steve Habermann wrote to the applicants’ legal representative on 2 February 2012 saying that it was mutually agreed that the department would pay $14,022.25 and that amount was paid directly into the applicants’ account in March 2011. He continues, ‘There was no indication that your client was in anyway unhappy with this payment. There was no correspondence from Mr Barnes [sic] and the payment was accepted.’ Mr Habermann continues that Ms Winter wrote to Lockyer Valley Regional Council (‘LVRC’) suggesting that they might consider some reimbursement for the use of the Tavern’s facilities.
- On 8 November 2011, Ms Haughey forwarded additional invoices to the Department of Communities for $103,488.00 for the use of premises, ancillary services, staff contribution, and the use of a paddock as the forensic compound by Queensland police.
- On 3 December 2012, the applicants filed a claim in the District Court of Queensland nominating the executives of LVRC, the Department of Communities, and QPS as the defendants. Thereafter, there were decisions of the District Court and also of the Supreme Court striking out the applications. The last of the court appearances was in the Ipswich District Court heard by Judge Koppenol on 22 October 2014. Of significance in that matter was a comment by the Department of Communities and QPS that the claim ought to have been brought under the Disaster Management Act 2003.
- The applicants lodged an application dated 16 April 2015 with the Chief Executive Officer, Department of Community Safety seeking compensation under s 121 of the Act. They sought $659,000.00 plus GST as compensation for the use of the Tavern for community recovery operations following the weather event in January 2011. On 28 July 2015, the Acting Director of the Public Safety Business Agency acknowledged receipt of the application and requested further information to enable consideration of the claim, noting that the acknowledgment letter did not constitute acceptance of the claim. On 14 September 2016 the applicants, through their legal representative, provided a 4-page response plus a substantial bundle of documents of more than 500 pages.
- On 23 December 2016, the respondent notified the applicants that their application was not accepted, along with reasons for that decision.
- On 3 February 2017, the applicants lodged an application at the Tribunal seeking a review of the Commissioner’s decision to not accept the application. There followed an application by the Commissioner to strike out the application, which was dismissed following a hearing on 31 July 2017.
- On 31 October 2017, the applicants lodged an interlocutory application for orders under s 63 of the QCAT Act. They sought the production of documents from seven persons and entities that are not parties to the proceedings. These include the Department of Communities, LVRC, QPS, the Department of Premier and Cabinet, the Member for Lockyer, the Department of Education, Employment and Workplace Relations, and the Queensland Reconstruction Authority. This application was dismissed. The member hearing that matter judged that the application appeared to be in the nature of follow-up requests arising out of the contents of documents previously released to the applicants and the proper action would be to seek those documents via a further request to the relevant organisations to establish their existence before proceeding to a further interlocutory application under the QCAT Act.
- The application for review of the Commissioner’s decision was set for hearing on 31 October 2018. Documents lodged for the hearing were contained in three ring binders although there was a significant degree of repetition among the applicants’ and respondent’s inclusions.
- At the hearing, neither the applicants nor respondent chose to call witnesses, their submissions being presented by their respective legal representatives. Mr Barns attended the hearing and answered one question put to him by the Tribunal. He was asked to describe the area in the Tavern that was used as the recovery centre, which he did. This was solely to provide a context for the evidence.
The applicants’ reasons for lodging the application
- In their application the applicants listed five reasons. These are:
- (a)The decision does not accord with the law;
- (b)The decision maker failed to account for, or properly apply, relevant considerations;
- (c)The decision maker took account of, and applied, irrelevant considerations;
- (d)The decision is unreasonable in the circumstances and having regard to the facts; and
- (e)The decision maker failed to properly, or at all, exercise their discretion to accept the compensation claim.
The applicants’ submission
- The reasons for the application in  are not presented in the bundle of documents provided to the Tribunal in a structured way that allows for the ready identification of supporting evidence. Therefore, the Tribunal has drawn from that significant body of material and from the submissions made by the legal representative during the hearing to distil the substance of those points.
- The bulk of the submissions made by the applicants and in the appended documents refer to the chronology of events that occurred during the period when evacuation and recovery operations were located in or about the Tavern, to invoices issued to government departments or agencies, and transcripts of proceedings in the courts and the Queensland Floods Commission of Inquiry.
- The Tribunal will address the five points based on material that appears to be relevant from the documents provided.
The decision does not accord with the law
- The applicants do not state specifically how the decision contravenes the law.
- On 16 April 2015, in the covering letter headed ‘Application for Compensation–Section 121 Disaster Management Act (DMA)’, the applicants’ legal representative (the author) draws attention to minutes of various meetings and to the efforts of the Disaster Management Group to the effect that a ‘recovery centre’ was established at the applicants’ premises. The writer claims that there is independent evidence confirming that these activities occurred and that there is an acknowledgement that the applicants are entitled to bring a claim for compensation. The writer continues, ‘Clearly, the conduct in this instance would fall within the meaning of ‘purported exercise’ as contained within that section’, [i.e., s 119 of the Act].
- In a letter of 14 September 2016 from the applicants’ legal representative to the Public Safety Business Agency, there is reference to two Tribunal decisions and it is suggested that these are relevant to considerations concerning the application. The author does not elaborate exactly as to how these two decisions are relevant. Both deal with extension of time. In Cardillo, the applicant sought an extension of about two months and the matter was dismissed. In Molier the delay was 10 months. The Tribunal similarly dismissed that application.
- In the same correspondence, the writer states that there has been no delay in the submission of the claim for compensation, as prior notice was given of the desire for compensation, raised by the applicants in January 2011 and maintained in various contexts thereafter with the LVRC, QPS, and Department of Communities, and in consultations and correspondence.
- The author also refers to Bigby v Queensland Building and Construction Commission and quotes a section that refers to the ‘exercise of discretion in the applicant’s favour that the application for extension shown [sic] an acceptable explanation for the delay.’ The writer continues that the application has been provided and the prima facie rule should not apply to this application. As an alternative, the Commissioner could ‘consider that there hasn’t been any delay at all and that at all times the applicants were seeking compensation, albeit, in different forums [sic].’ For reasons given in that decision, the Tribunal dismissed the application for an extension of time.
Failure to account for, or properly apply, relevant considerations
- There is no explanation given in the application as to what considerations have not been accounted for or properly applied. This and the following point appear to have some connection.
- There are two considerations that are repeatedly raised in several of the applicants’ submission: the status of the Tavern as the evacuation and recovery centre for the region; and the extent of the services that the Tavern provided to victims, volunteers, and members of emergency response services. Such comments are contained in submissions by Ms Haughey, Mr Barns, in Mr Christopher Neville’s statement of 23 May 2017, in many documents submitted in support of their claims, and in each of applications to the Tribunal to produce documents. In its 16 December 2011 correspondence, the applicants’ legal representative writes, ‘As you are no doubt aware our client’s property was used as an evacuation centre between 10 January 2011 and 26 January 2011 as a recovery centre between 27 January and 28 February, and as a forensic/storage compound between 27 January 2011 and 8 April 2011.’
- This point is made again in the application to the Department of Community Safety dated 16 April 2015:
It appears from the minutes referred to above [i.e., minutes of the Disaster Management Group] that as part of the efforts of the Disaster Management Group, a ‘recovery centre’ was established at our client’s premises. As a consequence of the establishment of that recovery centre … employees [of various government departments and instrumentalities] attended at the Murphy’s Creek Tavern and of course affected residents also sought refuge and assistance there.
- There are many references to the services provided by the Tavern and its staff. These can be discerned largely from the content of invoices that the applicants submitted as the basis for compensation. The services included the provision of meals, the use of telecommunication facilities, toilets, and adjacent land. The only staff identified in the documents are Mr Barns and Ms Haughey. It is not clear if others were involved.
- This substance of this issue is not apparent from the single line in the application. During the hearing, the Tribunal specifically sought clarification from Mr Hastie who took instructions from his instructing solicitor. The only matter raised related to any prejudice that might be incurred to other parties whose applications were lodged after the 90-day period had expired, and whose application were rejected.
- This point was raised in the applicants’ reply to the respondent’s request for submissions supporting the application for acceptance beyond the 90-day period. In the six short paragraphs under the heading ‘Will other parties be prejudiced’, the applicants mention claims by others only in the last sentence, ‘On balance, there is no prejudice in accepting this claim at this time.’ In the other five paragraphs, the applicants argued that the respondent was well aware of a forthcoming application, the application would not have come as a surprise, that there was no need for extensive evidence to justify the claim, and the ‘exercise is largely one of quantification rather than a determination of what activities were undertaken.’
The decision is unreasonable in the circumstances
- This general statement appears to relate to comments in the applicants’ reply to the respondent’s request of 14 September 2016 for justification of its late application. Under a heading ‘Interests of justice’, the applicants assert that to reject the claim would be contrary to the interest of justice as they have met the criteria for compensation, have agitated the claim, and have yet to be compensated.
- They state that it ‘would be an example of inconsistent treatment of citizens of the State given the payments which have been made to all other claimants who were involved in the same flood event.’ They continue that the strength of their claim is borne out by payment to other contractors engaged in the area. Furthermore, ‘But for the activities undertaken at the MCT, in the absence of the statutorily mandated response to the disaster, one wonders how that community would have otherwise faired.’
- They conclude:
An objective assessment of the circumstance surrounding the flood event and this claim for compensation could respectfully only lead to a conclusion of their [sic] being a miscarriage of justice in the event that the claim is rejected.
- The only additional reference to the unreasonableness of the rejection of the compensation claim comes from newspaper reports leading up to, and following, the applicants’ action in the District Court. In a Chronicle,Ms Haughey is attributed as saying that the heartless stance beggers [sic] belief. She is then quoted as saying, ‘There is not one person in Australia who does not acknowledge what we did. This community is absolutely livid at the way we have been treated.’ A second Chronicle clipping dated 10 January 2013 appears to be a repeat of the first.
The decision-maker’s discretion
- The Tribunal cannot locate any specific reference to this issue in the written submissions. There are certainly inferences along the lines that the respondent should perceive the strength of the applicants’ case given the contribution they made to the recovery of the Murphy’s Creek community and support given to the many government departments and agencies and, indeed, to all those involved in disaster relief in the area.
- This matter was addressed at some length in the submissions made by the applicants’ legal representative (and the respondent’s) during the hearing. I will address this matter now.
Oral submissions made by the applicant
- In their submission, the applicants acknowledge their late application. They argue, however, that the issue in the present matter is whether it is reasonable to accept the application having given consideration to all of the circumstances relevant to the matter. Referring to Greiner v Independent Commission against Corruption; Moore v Independent Commission against Corruption (1992) 28 NSWLR 125, they contend that the term ‘reasonable’ is a value or normative judgment, assessed on the basis of what a reasonable person might think.
- The applicants reiterate the Tavern’s involvement as an evacuation and community centre for the community. They quote from the Queensland Flood Commission of Inquiry transcript, ‘The community themselves set up the local tavern as a community centre which then became the response and recovery centre for the residents of Murphy’s Creek.’ The applicants argue that, ‘The evidence is clear that the tavern was used as an evacuation and then recovery centre following the disaster.’ Furthermore, they assert that the DMA is clearly intended to enable compensation due to loss or damage because of the use of the use of the applicants’ property by the State.
- The applicants assert that the respondent accepts that they were entitled to relief under the DMA as the Tavern was regarded as an evacuation and recovery centre under the DMA.
- Furthermore, the applicants draw attention to the payment made by the Department of Communities and refer to the claims filed in the District Court for restitution and acknowledge that the claim should have been brought under the DMA. They reconfirm the claim is for goods and services provided to fire and emergency and council employee, and to residents affected by the inundation. The quantum of the claim is also summarised.
- The basis for the application appears to derive from the position that there would have been an entitlement under the DMA if the application were made in time. The applicants have worked out what they consider to be a proper amount for compensation and the respondent has been aware of these losses and/or damages since they occurred.
- The applicants’ legal representative argues that the District Court proceedings affirm that the claim should have been brought under the DMA and the fact that other proceedings were brought is no reason for refusal of the application. The applicants again insist that the use of the property was required under the DMA.
- The Tribunal turns now to the respondent’s submissions.
The respondent’s reasons for not accepting the application
- The respondent states that she gave careful consideration to the matter having regard to correspondence from the applicants’ lawyers dated 16 April 2015 and 14 September 2016; correspondence from Public Safety Business Agency (‘PSBA’) to the applicants’ lawyers dated 28 July 2015; transcripts from District Court proceedings of 22 October 2014 and 22 October 2014; and the DMA.
- Also considered were facts and circumstances including: the amount of the compensation sought; s 119 of the DMA; s 120 of the Act that refers to loss or damage that would have occurred regardless of the exercise or purported excise of power under the DMA; and s 121. The respondent drew attention to the 14-month delay in the applicants’ response to her request for a submission after the applicants’ initial correspondence.
- In her letter to the applicants dated 23 December 2016, the respondent drew attention to:
- (a)the applicants’ unsuccessful proceedings in the District and Supreme Courts and that those actions commenced 18 months after the expiry of the limitation period under the DMA;
- (b)notice given to the applicants since at least 15 October 2013 that the correct forum for an application was the DMA, and yet they took no steps to make a claim until 16 April 2015, some 18 months later;
- (c)the lack of sufficient reasons, and of evidence to justify the quantum of the claim;
- (d)the requirement in the legislation that loss or damage must occur as a result of the exercise, or purported exercise, of power under the DMA and the applicants’ failure to explain or justify with evidence what loss or damage resulted from the alleged exercise of power under the Act;
- (e)the applicants’ claim being one for the consequences of the disaster event rather than for the exercise, or purported exercise, of power under the Act.
- (f)other applications for compensation that were lodged out of the 90-day period were rejected in 2012;
- (g)the applicants’ engagement of legal representatives soon after the 2011 flood who ought to have known about the time limitations under the Act but, instead, chose to pursue their claims through other avenues;
- (h)the payment of $14,022.25 by the Department of Communities in March 2011 that was appropriate compensation for the Department’s use of the Tavern; and
- (i)the generosity the applicants extended to the Murphy Creek community that does not establish a right to compensation.
- The respondent added no additional submissions prior to the hearing to elaborate on the reasons given above. The volume of attachments is very similar to those provided by the applicants. The respondent did, however, provide a copy of Part 11 of the Act, from s 119 to s 132.
Oral submissions made by the respondent
- The respondent concurs with the applicants that the Tribunal must decide if it would be reasonable in all the circumstances for the application to be accepted, despite it being made more than 90 days after the applicants alleged that they suffered loss or damage. The respondent, however, gives special attention to the fact that the application was made more than 4 years after the alleged loss or damage.
- The respondent notes that the DMA does not specify any mandatory criteria to govern the exercise of the discretion but insists that it must be exercised having regard to the objects and purposes of the Act that are given in ss 3, 4, and 4A. The respondent argues that the time limits for lodgement of a claim and consideration of it by the respondent emphasise the immediacy of relief afforded under the Act as stated in ss 4A(a)(iii) and 4A(a)(iv).
- The Tribunal’s attention is drawn to Crime and Misconduct Commission v Chapman & Anor,in which the learned member listed five factors that have been considered relevant when determining the exercise of discretion to extend time. In summary, these include: the need for a satisfactory explanation (or good reason) for the delay; the strength of the case; prejudice to adverse parties; the length of delay, the shorter delay being usually easier to excuse than a lengthy one; and whether it is in the interest of justice to grant the extension, usually through a consideration of the combination of factors.
- The respondent refers further to Workers’ Compensation Regulator v Pryszlak. The sections to which reference is made refer to a ‘balance between an applicant’s entitlement and the benefits of finality’ and that a large factor in any consideration ‘will always be the explanation for the failure to make the application within time.’ Furthermore, while consideration of the merits of the claim are relevant, an application for an extension of time is not the place for a merits review although the merit will bear upon the question of whether the circumstances of the case taken together constitute a special case.
- The respondent draws attention to a final settlement payment made by the Department of Communities to the applicants on 9 March 2011, and that the applicants sought payment from LVRC seven months after the Department’s payment. They then sought a further payment from the Department in November 2011 for which the Director-General accepted no liability. There were meetings involving the applicants, the Department of Communities and LVRC in January 2012 and proceeding were then commenced in the District Court. The respondent states that the Department offer a further sum but no response to that offer is contained in the applicants’ bundle of material.
- District Court proceedings occurred via the applicants’ legal representative and their claims were struck out as was an appeal in September 2015.
- The respondent states that the applicants’ claim to compensation changed from its initial dealings with the Department of Communities and the LVRC in early 2012 until it began proceedings in the District Court in December 2012 and these continued into 2014. It was not until April 2015 that it made its claim under the DMA. The respondent notes that despite the lengthy passage of time, the quantum of the applicants’ claim is yet to be particularised. The respondent quotes from the District Court decision that the claim is as-yet an unquantified and unparticularised amount. The respondent notes the quantum of the current claim of $569,800 is less than sought in their original submission (i.e, $659,000 plus GST).
- The respondent summarised its submission by drawing attention to: the applicants’ delay in lodging its claim under the Act and that the passage of time produces ‘faded memory prejudice’; the applicants’ legal representation since at least November 2011; and the failure to explain why they did not seek compensation under the Act within time. The respondent asserts that the applicants’ submissions do not provide satisfactory reasons for the delay in lodging a claim under the Act and that the only inference that can be taken from the circumstances is that they and their legal representatives chose fora for their pursuit of compensation other than the DMA, therefore, the correct and preferable decision under s 121(5) is to reject the claim for compensation.
The Tribunal’s decision
- The Tribunal may exercise its review jurisdiction as a consequence of the respondent’s decision under s 121(5) of the Act. In doing so, the Tribunal functions are listed in s 24 of the QCAT Act. The Tribunal may confirm or amend the decision; set aside the decision and substitute its own decision; or set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate.
- The Tribunal’s decision under s 24(1)(a) or s 24(1)(b) for a reviewable decision is taken to be a decision of the decision-maker for the reviewable decision except for the tribunal’s review jurisdiction or an appeal under Part 8, Appeals, subject to any contrary order of the tribunal.
- There is consensus among the applicant and respondent that the applicants’ Tavern was the used to support early evacuation and recovery activities that resulted from the inundation of the Murphy’s Creek area in January 2011. There is also consensus about the applicants’ pursuit of compensation for the use of their Tavern from 10 January into early February 2011, and in legal proceedings that they initiated later in the District and Supreme Courts. There is also agreement that the applicants did not submit their application under the Act within the 90-day period required.
- The Tribunal will consider the circumstance of the matter by reference to the reasons given in the applicants’ application, namely, that:
- (a)the decision does not accord with the law;
- (b)the decision maker failed to account for, or properly apply, relevant considerations;
- (c)the decision maker took account of, and applied, irrelevant considerations;
- (d)the decision is unreasonable in the circumstances and having regard to the facts; and
- (e)the decision maker failed to properly, or at all, exercise her discretion to accept the compensation claim.
- Both the applicants and respondent have argued the need for a decision that is consistent with one that a reasonable person might make having due regard to all relevant factors and issues. Therefore, the Tribunal will address the five points to place the application within the broadest context possible given the submissions made.
- Points (a) through (c) appear to have some logical connection, hence, it might have been logical to deal with them together. However, as the applicants insist that the Tavern was the recovery centre for the locality, I have considered points (a) and (b) as co-related.
Points (a) and (b)
- I have referred to the relevant sections of the Act in  through . Section 119 is a critical section because it refers to the entitlement to compensation. That entitlement come by way of ‘loss or damage because of the exercise, or purported exercise, of a power under section 77, 78, 111, or 112.’
- Section 77 describes the broad powers of a district disaster coordinator or declared disaster officer to control movement and activities in and about a declared disaster area. Section 78 gives the district disaster coordinator or declared disaster officer authority to take possession or control of property having given notice in the approved form to the owner and to warn the person that failure to comply with the direction unless there is reasonable excuse is an offence. Sections 111 and 112 refer to the power to enter a property for the purpose of rescue or to obviate circumstances where there is risk of death or injury. These last two sections do not appear to apply to the present application.
- In many places within the body of supporting documents, the applicants assert that the Tavern was the rescue and recovery centre in Murphy’s Creek. The applicants’ legal representative submitted that compensation is sought under s 119 specifically due to the exercise, or purported exercise, of a power under the DMA and in the 14 September 2016 letter, the applicants’ legal representative states, ‘By the conduct of the DDMG in taking over the MCTto discharge their statutory obligation pursuant to the provisions of the DMA, which cannot be disputed having regard to the minutes of the DDMG…”
- The Tribunal perused the 90-plus pages of these minutes and can find not one to confirm that the DDMG took over the Tavern. Almost exclusively, the minutes report the recovery progress achieved by each involved service. This is relevant as the natural reading of ss 77 and 78 that conveys the need for a declaration by a district disaster coordinator or declared disaster officer in regard to a property. Section 78 requires notice to be given to the property owner that control over the property has been taken or it is to be at the disposal of a person stated in the notice.
- The Tribunal has found no evidence, not even mention, of the involvement of a district disaster coordinator or declared disaster officer’s involvement in the Tavern’s activities. For a claim to be valid under s 119 there needs to be evidence of the exercise of power by a district disaster coordinator or declared disaster officer, for example, by producing the notice in the approved form.
- Indeed, the evidence found in the documents the applicants provided suggest no involvement by any authorised coordinator or officer. On page 2 of Mr Barns’ statement of 22 May 2017 at  he states, ‘I did not expressly approve the use of the Tavern as an evacuation centre or recovery centre.’ At  he states, ‘I did not feel that I could turn the evacuees, agencies and volunteers away. There was simply nowhere else in Murphy’s Creek for them to go. There were no other suitable buildings to be used…’ Furthermore, his Statement of Witness to the Queensland Floods Commission of Inquiryreads, ‘During the first week after the flood the hotel became an ‘un-official’ disaster recovery centre for Murphy’s creek [sic].’
- Mr Peter Souter, a resident of Murphy’s Creek, prepared a comprehensive report on the nature and consequence of the inundation. His report is said to be a record of observations made by Messrs Souter and Phil Box.
- Mr Souter writes:
In the days following the event people from the Murphy’s Creek community and neighbouring communities from the Lockyer Valley and Toowoomba Region created the Murphy’s Creek Community Flood Relief Centre at the Murphy’s Creek Tavern. Individuals and Businesses provided significant support to the centre. During its Operation State Government Emergency and Community Services Agencies provided staff who worked hand in hand with community volunteers. In time some Local Government staff that had been seconded from across Queensland attended the centre to undertake support tasks…
- On page 3 he continues:
The Murphy’s Creek tavern became involved in the response to the event whilst the event was still “hitting”. A resident that had been affected sought out help from the staff at the Tavern. The tavern provided immediate shelter and food and as the afternoon became night more resident sought out refuge in the Tavern. As the body of floodwater passed more residents also attended the Tavern with the Tavern effective becoming an Evacuation Centre. The local school was also used as an evacuation centre with limited infrastructure available due to the school being inundated during the flood.
- This is confirmed by the applicants in the oral submissions to which I have referred in the second sentence of .
- Continuing on page 8 of Mr Souter’s report under point (d) is the following:
The publican was informed that he was not covered for the activities being conducted within the tavern precinct. A request was made to council to make the relief centre a recognised centre so that it came under the disaster recovery insurance policy. This was not enacted by council and the publican only received cover when an APEX insurance representative came by and offered to cover him free of charge until this operation moved from the tavern precinct.
- In Mr Michael Crowley’s Statement of Witness to QPS dated 17 March 2011, he stated at page 9 of 11:
There was a strong sense of community that developed [in Helidon and Murphy’s Creek] that developed and an active push to help each other in recovering from the event. … Murphys [sic] Creek benefited further from the military expertise of a local community member who, in the period immediately after the event, took command of the community resources (human, physical, and financial) and directed [them] towards the various recovery tasks.
- During the hearing the Tribunal asked the applicants’ representative who the relevant authorised coordinator or officer was. He indicated that there was no knowledge of this person or reference in the submitted materials.
- The Tribunal acknowledges the extensive range of recovery activities being undertaken at and around the Tavern and these may be the types of activities undertaken in a declared evacuation and recovery centre. There are many references in the documents to the ‘recovery centre’ at Murphy’s Creek, although without reference to a notice issued under the Act, or that any of the powers listed in s 77 were enacted by a coordinator or declared disaster officer. Indeed, it would appear from Mr Souter’s statement that the LVRC chose not to declare the Tavern as an authorised site and the operations undertaken there were solely driven by members of the community.
- The applicants have argued that the conduct of the Tavern in this instance would fall within the meaning of purported exercise of power under the Act. It is not clear what conduct is suggested here other than the several activities to which I have referred above. There are definitions of ‘purport’ in the New Shorter Oxford English Dictionary, variously ‘expressed’, ‘stated’, ‘intended to be done or effected by something’ and for ‘purportedly’, the definition includes allegedly. The legislators’ intention in using this word is undefined, but the use of the word in the Acts Interpretation Act 1954 (Qld) provides some clarity. Section 27A(6) reads:
A delegated function or power that purports to have been performed or exercised by the delegate is taken to have been properly performed or exercised by the delegate unless the contrary is proved.
- The evidence to which the Tribunal has referred above suggests no proof that a power under the Act was performed or purported to have been exercised by a disaster coordinator or declared disaster officer. Indeed, the opposite is suggested.
- Points (c) and (d) also appear to be co-related so the these will consider together.
Points (c) and (d)
- As indicated earlier, the only matter raised was the potential prejudice to other parties whose applications made after the 90-day period had expired and were rejected. The applicants did not pursue this point in written or oral submissions. The respondent did not argue for or against this matter.
- While prejudice to other parties could be perceived, the Act and the QCAT Act require the consideration of the facts as presented. If other parties were offended by the rejection of their application, they would have been at liberty to seek a review and ultimately apply to the Tribunal for further consideration. This matter appears to be of little consequence to either applicants and respondent. In the hearing, the representative of the applicants stated that this should have no bearing on the decision of the Tribunal.
- The applicants have argued, however, that the rejection of their application is contrary to the interest of justice as they have met the criteria for compensation, have agitated the claim, and have yet to be compensated. They insist that the denial of their application would be an example of inconsistent treatment as other who have made claims were paid compensation. This is at least partly contrary to comments made by the respondent in her letter to the applicants of 23 December 2016. Therein, she states, ‘similar application for compensation brought by other persons in 2012 were rejected on the basis that were out of time.’ She argues that acceptance of the applicants’ claim could be inequitable to others who were rejected for being out of time. She states that the 90-day limitation period expired in May 2011 and raises the issue that the applicants have been legally represented since soon after the 2011 flood and that the applicants ought to have known of the time constraints under the Act. I note that on page 5 of Mr Barns’s statement he submits. ‘I do not recall ever specifically being advised by the Department of Communities or the LVRC to submit a written claim for compensation for the use of the Tavern as an evacuation centre or recovery pursuant to the Disaster Management Act 2003 [sic] (Qld).’
- There is no expectation that Mr Barns should have had knowledge of the contents of the DMA or even an awareness that the Act existed. It is perhaps not unreasonable, however, to suppose that the compensation process would have been raised in conversions with representatives of the Department of Communities or other individuals during negotiations about the respondent’s claim against the Department. Perhaps this is what was meant when he said that he did not recall ‘ever specifically being advised’. The respondent did raise the issue of the applicants’ engagement of legal representative toward the end of 2011 and it seems unusual that they would not have explored all avenues to gain compensation, with the most relevant being the first.
- In this regard, the issue of the delays, both in lodging claims and litigating against the various respondents extended across four years. The Tribunal specifically asked the applicants’ representative in the hearing to enlighten the Tribunal about the reasons for the delay in prosecuting its various claims. The Tribunal was told that there was no explanation to be found in the submitted documents. This issue, therefore, remains unexplained.
- In summary, while the applicants continue to allege that they have met the criteria for compensation, the evidence they have presented does not support the allegation. They have provided no evidence to substantiate their claim that others have benefited from the Act, having properly applied for compensation. It is accepted that the respondent has also not provided evidence about other applications that were lodged for compensation.
- The applicant argues that the respondent failed to exercise its discretion to accept the application. This would seem to be difficult to substantiate as discretion is simply understood to be the freedom to decide. It appears that the respondent replied to all of the assertions made in the application for compensation and was free to weight both the allegations made against the evidence presented to come to a final decision. The respondent states that in her decision, she took into account the requirement that compensation can be paid under s 119 of the Act but that the Act provides no general right to compensation.
- Of relevance here, is the respondent’s charge that the applicants have not particularised the quantum and, hence, there is no evidence to support either the initial amount sought or the amended amount based on a per diem rate.
- It is common knowledge that the property was used during the evacuation and recovery operations from 11 January 2011 at least until the first week of February 2011 although the QPS may have continued to store vehicles on Tavern property into March 2011, as the applicants have asserted. There is, however, no evidence presented to decide one way or the other concerning the period during which the Tavern was actually used by government departments or instrumentalities. This calls into question the validity of quantum of the claim.
- In regard to the quantum, the applicants assert that the amount sought is based upon a per day rate paid by the State through a national scheme and this calculation is explained in the application. The respondent says that the applicants have provided little, if any, justification for the use of a figure of $35 per person per dayand there is need for justification of that amount to enable an objective assessment as to what loss or damage the applicant is actually alleging.
- The Tribunal has considered the matter of quantum in the context of the likelihood of the applicants’ success if the compensation claim were to proceed to a hearing on the matter, recognising that the present application is not a place for a merits review. The applicants submit that the quantum is fair and justified on the basis of the losses and damages incurred by their business. While there might be some basis for a per diem rate, this has neither been substantiated nor has there been any evidence to support the assertion that 300 people used the Tavern each day, or that the fee for use of the vacant land adjacent to the Tavern of $500 per day is fair and reasonable.
- The Tribunal notes that the negotiated settlement of $14,022.65 paid by the Department of Communities included costs for power, cleaning, use of gas, sewerage, use of land, wear and tear, phone/fax, supplied water/ice, meals, staff assistance from the manage, electrical connection. A claim for $493,500(some 35 times larger) would seem to warrant more than an assertion that a particular per diem rate applies. It is noted that the Department of Communities payment was based on an assessment of individual items and not the application of a per diem amount.
- There is documentation in the package of material provided by the applicants and respondent that appear to be salient to this consideration. In his witness statement to the Queensland Flood Commission of Inquiry, Mr Barns stated that meals were cooked from donated produce at the Tavern and provided to the community and others involved in the recovery effect. His estimate was 2,000 meals in the weeks following the flood.Mr Souter generally confirms the use of donated produce and equipment in his report:
Due to the relief centre being established by the local community and there not being any recognised local fund to draw from, all stores and equipment for the first 2 weeks of the disaster reaction were donated. The generosity of local, regional and national business was overwhelming.
- Furthermore, Mr Souter wrote:
In the week following the event coordination at the Tavern was undertaken by the management at the hotel. From Friday 14 January Peter Souter took on the coordination task and put in place a coordination structure and systems to ensure that help was able to be provided to residents.Large business also provided support including provision by Lindsay Bros of a refrigeration truck, communications equipment from Optus and Telstra and heavy machinery and expertise from GSK Group.
There were also portable office buildings and portable toilets provided and living quarter for displaced persons.
- As the weeks progressed recovery operations described in the minutes of the DDMG meeting were scaled back and by the end of January 2011, those located at the Tavern were moved to the sports ground. It is not known what effect this might have had on the Tavern’s involvement and services provided, but it is questionable that the per diem agreed by the Department of Communities would have applied to the circumstances that existed at the end of January 2011, and beyond. Finally, there is at least reason to provide justification that any losses outweighed benefits to the Tavern
- I have considered the submissions concerning discretion in regard to the acceptance of a claim made out of time. The applicants’ legal representative drew attention to Greiner v ICAC, and the respondent drew attention to a number of precedents to which I have referred in in this decision. Anton Paul Lucic v Nolan appears particularly relevant. Fitzgerald J wrote:
It is neither necessary nor desirable, if indeed it would be possible to enumerate the great variety of possibly material circumstances to be considered on an application for an extension of time. Nor, in my opinion, is it possible to identify particular circumstances or classes of circumstance which must automatically be excluded from consideration. Each individual case should be dealt with individually, giving due weight to prior decision and what they reveal of judicial attitudes: cf s 11(4) and (5). Whilst there are obvious reasons why there should be no attempt at a full investigation of the merits of the application for review on an application for an extension of time, I would not exclude from consideration in an appropriate case some obvious strength or weakness in an applicant’s case or matters which might justify the refusal of relief, if the court has a discretion to do so where a ground for relief is made out.
- In regard to the issue of delay, the applicants’ oral submission contends that the District Court proceedings that intervened between the events on January 2011 and April 2014 demonstrate that the claim should have been brought under the DMA. This is accepted by the respondent. The relevant questions to be asked (and answered) here: Why has there been no explanation for the periods of silence? Why did the applicants continue to pursue the claim in fora other than the DMA if they were advised that that Act was the relevant Act? The respondent asserts that there has never been an answer given to these questions other than the applicants choice to litigate in the District Court. The Tribunal finds no fault with the applicants’ statement that the claim should have brought under the DMA, but this does not imply that its case merited approval of the compensation claim, or even the acceptance of the application.
- To facilitate consideration of the Tribunal’s decision, I have taken guidance from Cardillo v Queensland Building Service Authority at . The learned member listed five factors for consideration: the explanation given for the delay; the length of the delay; any prejudice to the other party; the strength of the case if the applicant is allowed to proceed; and the interests of justice in regard to the granting of an extension.
- I have used these guidelines in a general sense in coming to a decision.
- The applicants have given only one explanation for the delay in lodging an application under the DMA, that they were pursuing their claim in other jurisdictions. The respondent draws attention not only to the periods of silence when the applicants were involved in proceedings in the District Court and Supreme Court, but also to other lengthy periods when there was no apparent activity (correspondence or interaction) between the applicants and respondent parties. The Tribunal specifically sought to understand the nature of the delays during the hearing but its question to the applicants led to no clarity.
- Mr Barns states that no one specifically mentioned an application under the DMA, but the respondent draws attention to this in its reason for not accepting the application, insisting that the applicants were aware of the DMA since at least 15 October 2013 and they took no steps to make a claim until 16 April 2015.
- In regard to the length of the delay, the Tribunal notes that the delay in Cardillo v Queensland Building Services Authority was about two months, in Molier, over 10 months, in Workers’ Compensation Regulator v Pryszlak, about 15 months, and in Lucic v Nolan and Others about 17 months. In the present matter the delay from the alleged loss or damage to the date of the application under the DMA has been about four years.
- The Tribunal can readily accept that the delay resulted from actions being taken in other jurisdictions. The applicants argue that there was always an intention to seek compensation and that the respondent was aware of that intention and, therefore, was on notice. However, it may be that the claim under the DMA only occurred after the applicants apparently exhausted their litigation options in other jurisdictions. If this is the reason, it is not a convincing one particularly as an intention is not an action. The delay and the applicants’ reluctance to explain it is a weakness in their case.
- In terms of the success of the application if it were to proceed to the Tribunal, the quantum of the claim justifies at some examination. It is a considerable sum and while the applicants have indicated the services that were provided by the Tavern, there is no evidence that the amount sought reflects the nature and extent of those services to the number of people nominated, or how that reflects any loss or damage. This is also a weakness in the applicants’ case only to the extent that it may have an impact on the eventual success of a claim if it were to proceed to a hearing on the merits of the case.
- The single issue that is has the greatest impact on the applicants’ case is their inability to provide evidence that the powers set out in ss 77 and 78 were invoked. The Act provides no discretion to disregard this condition and the evidence to which the Tribunal has referred above indicate that it was the community itself that established the recovery operation at the Tavern, with the applicants’ acquiescence, and no apparent direction by the DDMG. Documentation suggests that the LVRC declined to give formal approval to the Tavern as an evacuation or recovery centre, Mr Barns referred to the Tavern as an informal recovery centre, and there is no evidence to show that a power under s 199 was exercised or purported to be exercised, or that there is any basis upon which that section of the Act can be disregarded.
- The Tribunal recognises that s 121(5) of the Act allows for late applications if the Chief Executive is satisfied it would be reasonable in all the circumstance to accept the application. Both the applicant and respondent have presented cases in regard to the extent to which a discretionary assessment might be made in this matter, one that takes into consideration all of the circumstances. The Tribunal has considered the all submission and is not convinced that a reasonable person who would consider the preconditions in ss 77 and 78, and the entitlement stated in s 119 of the Act would find the applicants’ evidence compelling.
- Based upon the totality of information that the Tribunal has before and outlined in this proceeding, the Tribunal finds that the correct and preferable decision under s 121(5) of the DMA is that the applicants’ application for compensation is not accepted. The Tribunal confirms the respondent’s decision made on 23 December 2016 not to accept the applicants’ application under s 121 of the Act.
 Disaster Management Act 2003 (Qld), s 121(2).
 Disaster Management Act 2003 (Qld), s 3.
 Disaster Management Act 2003 (Qld), ss 4 and 4A.
 Described in s 79, Disaster Management Act 2003 (Qld).
 In the case of the declared disaster officer.
 Operations Manager of the Department of Communities.
 From Mr Kelly’s part-email, the initial discussion concerning compensation seem to have occurred no later than mid-February 2011.
 This compound was located in one of the fields adjacent to the Tavern.
 The application was received by the respondent on 27 April 2015.
 Barns v Commissioner, Queensland Fire & Emergency Services  QCAT 263.
 Barns v Commissioner, Queensland Fire & Emergency Services  QCAT 460.
 Cardillo v Queensland Building Services Authority that was subsequently affirmed in Molier v The Body Corporate for Q1 CTS 34498.
 This letter is identified as JTB5, supplementary material attached to Mr Barns’s statement.
 There is not notation about the date of this article on the photocopy provided.
 It must be noted that these two comments concerning ‘heartless stance’ do not appear in quotes in the newspaper articles. The second may be the same article as the first but uploaded to the Web.
 This reference is found on Commission’s page number 476, first full paragraph, which is the applicants’ attachment, p. 109.
 To which the Tribunal has referred in  above.
 90 days.
 60 days.
 At  in that decision.
 At ,  in that decision.
 The respondent states that this was because the applicants’ denial that the DMA applied but the applicants state that this is an entirely inaccurate assertion. See p. 2 of the applicants’ letter to the Public Safety Business Agency of 14 September 2016.
 ‘DDMG’ refers to the District Disaster Management Group; ‘MCT’ refers to Murphy’s Creek Tavern.
 The quote continues, ‘it would be an example of inconsistent treatment of citizen of the State given the payments which have been made to all other claimants who were involved in the same flood event.’
 On p. 438 in the bundle of documents provided by the applicants.
 On p. 1 of 10 of this report.
 For the reader benefit, the relevant sections are ss 24B(9), 24B(13), 24B(15), 24C(3), 27A(3D), 27A(13), 27A(15), and 52A.
 This is recorded in the DDMG minutes of 31 January 2011 when it was said that the Tavern operation would be moved to the Sports Ground by 2 February 2011.
 Or $45 per person per day as in the applicants’ original claim.
 It is not apparent if this includes or excludes GST.
 On p. 438 of the applicants’ bundle of documents. There is an additional commentary in the Queensland Flood Commission of Inquiry transcript of 7 April 2011 on p. 512 in the applicants’ bundle of documents.
 On p. 403 of the applicants’ bundle of documents.
 On p. 167 in the copy of the decision by the learned judges provided during the hearing.
 On p. 417 lines 0 to 14 on the copy provided by the respondent in the hearing.
- Published Case Name:
Barns & Anor v Commissioner Queensland Fire and Emergency Services
- Shortened Case Name:
Barns & Anor v Commissioner Queensland Fire and Emergency Services
 QCAT 2
Member Professor Ashman
04 Jan 2019