Jsk v NYO[2025] QCAT 94

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

What is the application about?

1. [1]
   JSK^[1] was to party a family law parenting proceeding before the Federal Circuit and Family Court of Australia (FCFCOA). NYO is a Family Consultant and Family Report Writer who provides fee-for-service family report writing by Court-appointment and to private parties in parenting proceedings before the FCFCOA.
2. [2]
   Evidence before the Tribunal establishes that NYO was, in this case, engaged by the Independent Childrens Lawyer^[2] to write a report under Rule 7.03 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (FLR) (or Rule 15.44 of the Family Law Rules as it then was before legislative change on 1 September 2021).
3. [3]
   Following receipt of NYO’s report dated 23 November 2021, the parties settled their parenting dispute prior to final hearing.
4. [4]
   On 29 February 2024, JSK filed an application for minor civil dispute – consumer/dispute seeking orders that NYO refund the sum of $3,784.00 paid by JSK for the report and that NYO reimburse the filing fee in the sum of $153.70, alleging various failings on NYO’s part in writing the report.
5. [5]
   In an application for miscellaneous matters filed 23 September 2024, NYO sought orders striking out JSK’s claim for want of jurisdiction.
6. [6]
   By a decision made 20 December 2024 I dismissed the application for a minor civil dispute – consumer/trader dispute and an application JSK had filed seeking a non-publication order. Pursuant to section 122 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) JSK has requested reasons for those decisions and they are set out below.

The Tribunal’s jurisdiction

7. [7]
   JSK argues that the claim falls within jurisdiction because:

   1. NYO was engaged by the parties privately, rather than by Court-appointment, rendering the dispute a private contract dispute between the parties and their service provider,
   2. The family law matter did not proceed to trial, and was therefore kept out of the FCFCOA’s jurisdiction, and
   3. NYO is not a psychologist regulated by the Australian Health Practitioner Regulation Agency (AHPRA) such that a referral from AHPRA would be needed to pursue a claim against them in the Tribunal.
8. [8]
   Respectfully, these submissions lack relevance on the issue of jurisdiction. This is because section 12 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) confers the Tribunal’s jurisdiction over ‘minor civil disputes’ relevantly defined as (emphasis added):^[3]

…(b) a claim arising out of a contract between a consumer and trader, or a contract between 2 or more traders, that is—

1. for payment of money of a value not more than the prescribed amount; or
2. for relief from payment of money of a value not more than the prescribed amount; or
3. for performance of work of a value not more than the prescribed amount to rectify a defect in goods supplied or services provided; or
4. for return of goods of a value not more than the prescribed amount; or
5. for a combination of any 2 or more claims mentioned in subparagraphs (i) to (iv) where the total value of the combined claim is not more than the prescribed amount…

9. [9]
   Consumer and trader are terms defined in Schedule 3 of the QCAT Act where, relevantly a “consumer”  is an individual for whom services are supplied for fee other than in a trade or business carried on by the individual and a “trader”  is a person who in trade or commerce carries on a business of supplying services other than when acting in the exercise of a discipline that is not ordinarily regarded as within the field of trade or commerce.
10. [10]
    In Early Property Group Pty Ltd t/a Early Group Valuers v Cavallaro [2010] QCATA 65, Deputy President Kingham J, stated, in considering whether a valuer came within the exception to the definition of ‘trader’ (emphasis added):

[17] If the exemption in the definition of trader in the QCAT Act is to have any application at all, it must operate to exclude professionals whose disciplines are not ordinarily regarded as within the field of trade or commerce. A discipline is: 1. A branch of instruction or learning.

[18] Santow J explored the meaning of profession in Prestia v Aknar. He offered the following as a working definition:

“This would embrace intellectual activity, or manual activity controlled by the intellectual skill of the operator, whereby services are offered to the public, usually though not inevitably for reward and requiring professional standards of competence, training and ethics, typically reinforced by some form of official accreditation accompanied by evidence of qualification.”

[19] That formulation is, respectfully, a helpful one in interpreting the meaning of the exemption in the definition of trader in the QCAT Act.

11. [11]
    It has been held that the following, among many others, are not traders under the QCAT Act: lawyers,^[4] medical professionals,^[5] accountants,^[6] advocacy consultants,^[7] town planning consultants, migration agents^[8] and industry trainers.^[9]
12. [12]
    A caution to that effect is in fact included in the notes to the Form 1 application for minor civil dispute that JSK filed:

13. [13]
    There is no question in my view that a family consultant acts in the exercise of a discipline that is not ordinarily regarded as in trade or commerce:

    1. According to the FCFCOA website:^[10]

Family consultant is a role defined in the Family Law Act. Family consultants are required to have a statutory appointment issued by the Court’s Chief Executive Officer. To be appointed as a family consultant a practitioner must be a psychologist or social worker who has specialist knowledge in child and family issues after separation and divorce, and has satisfied the Court that they have the necessary expertise to undertake the role as an expert witness in parenting matters before the Court…

Other family consultants are not employees of the Court but are private practitioners who have satisfied the Court that they have the requisite qualifications and expertise to undertake the duties of a family consultant. This type of family consultant is appointed to the role under the Family Law Regulations and is often referred to as a Regulation 7 Family consultant.

There is clearly a process for appointment of family consultants based on the qualifications and experience of the consultant. Appointment is personal to the consultant.

2. The nature of the work undertaken by NYO is clearly the practice of an intellectual activity by them personally, based upon academic qualifications and experience.
3. On JSK’s own evidence, material was to be reviewed, interviews performed by NYO and a report written including their findings and recommendations: this is the exercise of an intellectual activity personal to NYO, their qualifications skills and experience and, importantly, their appointment under family law rules.

14. [14]
    On that basis, NYO is not a ‘trader’ within the definition of that term under the QCAT Act and the claim against them therefore cannot be a minor civil dispute falling within the Tribunal’s jurisdiction.  It must be dismissed on that basis.
15. [15]
    Although the parties raise additional arguments regarding the immunity that attaches to family consultants and expert witnesses in family law proceedings, and whether immunity is overcome by negligence or another failure in the delivery of the report writing services, it is not necessary to address them because the Tribunal lacks jurisdiction to do so.

16. [16]
    The Tribunal is mandated^[11] to deal with matters in a way that is accessible, fair, just, economical, informal and quick, and must also:

    1. encourage the early and economical resolution of disputes before the Tribunal;^[12] and
    2. ensure proceedings are conducted in an informal way that minimises costs to the parties and is as quick as is consistent with achieving justice.^[13]
17. [17]
    Section 13 of the QCAT Act obliges the Tribunal to make orders that it considers fair and equitable to the parties to the proceeding in order to resolve the dispute but may, if the Tribunal considers it appropriate, make an order dismissing the application.
18. [18]
    The Tribunal need also be mindful that their resources serve the public as a whole, not just the parties to the proceedings, Justice Wilson noting in Creek v Raine & Horne Real Estate Mossman^[14] that:

The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, “… the public as a whole, not merely the parties to the proceedings”.^[15]  Finality in litigation is highly desirable, because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties.^[16]

19. [19]
    The Tribunal can act on its own initiative^[17] under section 47 of the QCAT Act to strike out or dismiss a proceeding if the Tribunal considers a proceeding is:

    1. frivolous, vexatious or misconceived; or
    2. lacking in substance; or
    3. otherwise an abuse of process.
20. [20]
    However, the power to strike out ought only to be exercised “sparingly” and “when a claim is groundless or futile”.^[18] 
21. [21]
    According to Dey v Victorian Railways Commissioners,^[19] in considering a strike out application, the evidence should be weighed to reach a conclusion about whether the applicant has an arguable case. JSK has no arguable case that the Tribunal has jurisdiction to hear this claim. In the circumstances I am satisfied as to the “high degree of certainty about the outcome” sufficient to strike the proceeding out^[20] and I dismiss the application for minor civil dispute accordingly.

Non-publication application

22. [22]
    Section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) permits the Tribunal, in an exercise of discretion, to make an order restricting access to:

    1. the contents of a document or other thing produced to the tribunal,
    2. evidence given before the tribunal,
    3. information that may enable a person who has appeared before the tribunal, or is affected by a proceeding, to be identified,

if the tribunal considers the order is necessary:

4. to avoid interfering with the proper administration of justice, or
5. to avoid endangering the physical or mental health or safety of a person, or
6. to avoid offending public decency or morality, or
7. to avoid the publication of confidential information or information whose publication would be contrary to the public interest, or
8. for any other reason in the interests of justice.

23. [23]
    NYO’s application for strike out mentions, among other things that JSK’s application offends section 121 of the Family Law Act. In seeking a non-publication order, JSK sought to conceal his identity “in order to comply with section 121 of the Family Law Act 1975 as indicated is necessary by the Respondent”.
24. [24]
    Section 121 of the FLA previously provided that:

121 Restriction on publication of evidence

(1) A person shall not print or publish-

(a)  any statement or report that proceedings have been instituted in the Family Court or in another court exercising jurisdiction under this Act; or

(b)  any account of evidence in proceedings instituted in the Family Court         or in another court having jurisdiction under this Act, or any other account or particulars of any such proceedings.

(2) A person who contravenes sub-section (1) is guilty of an offence punishable, on conviction-

(a)  in the case of a first offence, or a second or subsequent offence         prosecuted summarily-by a fine not exceeding $1,000 or imprisonment for a period not exceeding 6 months; and

(b)  in the case of a second or subsequent offence, being an offence         prosecuted on indictment-by a fine not exceeding $2,000 or imprisonment for a period not exceeding 1 year.

25. [25]
    Part XIVB of the FLA now provides in section 114Q that a person commits an indictable offence if they communicate information including the name of a party to or of a witness in family law proceedings, unless approved by a “court”. 
26. [26]
    As the Tribunal is not a “court” for the purpose of family law proceedings,^[21] it cannot approve of or excuse an offence against section 121, as it were, or of s 114Q as it is now.
27. [27]
    JSK did not satisfy the Tribunal that the non-publication order he sought was necessary in these proceedings:

    9. to avoid interfering with the proper administration of justice; or
    10. to avoid endangering the physical or mental health or safety of a person; or
    11. to avoid offending public decency or morality; or
    12. to avoid the publication of confidential information or information whose publication would be contrary to the public interest,

and the application was refused for those reasons.