Derrick v Mitchell[2018] QCATA 145

m>(2013) 2 Qd R 327

Zistis v Zistis [2018] NSWSC 722

APPEARANCES &

REPRESENTATION:

Applicant:

Self-represented

Respondents:

Adele Crocker, 360 Property Management

Attorney-General of Queensland:

Mr AD Keyes, of Counsel

Mr NG Harris, Crown Law

REASONS FOR DECISION

1. [1]
   In 2016 a company carrying on business as a property agent in Mackay successfully brought an application in the tribunal against a former tenant (now the applicant for leave to appeal) claiming compensation for damage to a residential rental property on behalf of the named lessor respondents who, presumably, also lived in Queensland. The applicant’s address for service was in Western Australia.
2. [2]
   QCAT is a creature of statute. It can only validly resolve disputes if it has jurisdiction over both the subject matter and the parties. As with any inferior court, the tribunal’s adjudicative authority is not assumed but, rather, must appear on the face of the record. Judicial power that is not conferred by the QCAT Act or an enabling Act cannot be acquired by consent, submission, waiver, silence or merely for the sake of convenience.
3. [3]
   While State legislatures may confer powers on a body that is not a court of a State to deal with other disputes within the limits of their respective subject matter, locality and monetary limits, resolving matters between the residents of different States within the integrated judicial system^[1] of Australia (so-called diversity jurisdiction) is the exclusive province of those courts permitted to exercise federal judicial power by ss 38-43 of the Judiciary Act 1903 (Cth).
4. [4]
   Accordingly, unless the tribunal is a Chapter III court, it lacks diversity jurisdiction and the order under appeal is liable to be set aside as a nullity.
5. [5]
   The Attorney-General for Queensland elected to intervene in the proceeding as a party under s 41 QCAT Act.

The decided cases

6. [6]
   In Burns v Corbett^[2] (Burns) a majority of the High Court held that the tribunal’s NSW counterpart (NCAT) lacked diversity jurisdiction to exercise judicial, as distinct from executive, administrative or adjudicative power, in an anti-discrimination matter because unlike QCAT^[3] it is not expressly designated as a court in the Civil and Administrative Tribunal Act 2013 (NSW) and according to Kiefel CJ, Bell and Keane JJ considerations of “… constitutional text, structure and purpose” compelled the conclusion that “… a state law that purports to confer jurisdiction with respect to any matter listed in ss 75 and 76 of the Constitution on a tribunal that is not one of the courts of the States (referred to in s 77) is inconsistent with Ch III of the Constitution and, therefore, is invalid”.^[4]
7. [7]
   Since then, however, the NCAT appeal panel decided in Gatsby v Gatsby^[5] (Gatsby) that NCAT is in fact a court for the purposes of resolving interstate tenancy disputes and that the concession made to the contrary in Burns that it lacked “the minimum degree of independence and impartiality” of one impliedly required by Ch III was misconceived.^[6] An appeal has been heard but not yet decided.
8. [8]
   The Attorney-General submits that whatever precedential value Burns^[7] and Gatsby have for New South Wales and elsewhere the legal situation in Queensland was authoritatively settled by the Court of Appeal in Owen v Menzies.^[8]
9. [9]
   McMurdo P was persuaded that QCAT was “an inferior court of summary jurisdiction”^[9] within the organisation of Queensland courts.
10. [10]
    First, because QCAT is explicitly a court of record, and, therefore, NSW Court of Appeal decisions to the contrary in Trust Co of Australia Ltd v Skiwing Pty Ltd,^[10] 2UE Sydney,^[11] Sunol v Collier (No 1),^[12] were distinguishable.^[13]
11. [11]
    Second, its independence in resolving disputes between parties^[14] is not jeopardised solely because the majority of its judicial officers are part-time and do not have the same financial security or security of tenure enjoyed by Queensland magistrates and District and Supreme Court judges.^[15] Muir JA in effect agreed with McMurdo P. QCAT’s status as a court was a necessary step in the reasoning of McMurdo P and Muir JA and forms part of the ratio decidendi in the decision.
12. [12]
    While the Chief Justice ultimately found that the question of whether QCAT was a court unnecessary to decide,^[16] he emphasised the legislature’s clear intention to ensure “independence and impartiality, hallmarks of the judicial process, as mandatory for QCAT”.^[17] His Honour also considered the binding and authoritative nature of QCAT’s decisions, its obligations to act independently^[18] and make determinations in accordance with the law significant.^[19]
13. [13]
    Under the common law doctrine of precedent inferior courts (and tribunals) are bound by decisions of the High Court^[20] or if there is none on point, by the next highest court within the integrated national hierarchy in respect of the ratio or necessary statement of principle. Also, lower courts are expected to apply “seriously considered dicta” as well as strict ratios.^[21]
14. [14]
    I accept the thrust of the Attorney-General’s central submission that the present proceeding does not involve a matter arising under the Constitution or involving its interpretation because, even if the parties are residents of different States, for the reasons given above, QCAT is a ‘court of a State’ and had diversity jurisdiction to settle their tenancy dispute.
15. [15]
    Accordingly no notices under s 78B of the Judiciary Act 1903 (Cth) need to be issued in the proceeding.
16. [16]
    The Attorney-General is excused from further participation in the proceeding with thanks.
17. [17]
    The application for leave to appeal or appeal will be decided on its merits in due course on the papers informed by the written submissions already filed by the parties.