RSMC v RMNS[2021] QCATA 52

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This matter has its genesis in an application brought in this Tribunal in 2016 for orders under the Guardianship and Administration Act 2000 (Qld) (“GAA”). The adult in question, Mrs RDDM has since died, but there is still an appeal on foot in respect of a decision made in the course of the application.
2. [2]
   Mrs RDDM had two sons – the Applicant and the First Respondent.
3. [3]
   On 4 September 2012, Mrs RDDM made an Enduring Power of Attorney by which she appointed the Applicant and the First Respondent jointly and severally to be her attorneys, and declared that the power of attorney took effect immediately.
4. [4]
   On 12 September 2016, the Applicant filed in the Tribunal an application seeking the appointment of the First Respondent as Mrs RDDM’s administrator under the GAA. On the material filed at the time, this application was brought on the basis of a contention that the National Australia Bank (“NAB”) had refused the attorneys access to Mrs RDDM’s bank account.
5. [5]
   On 24 October 2016, the Applicant filed an application to withdraw the application for the appointment of an administrator.
6. [6]
   On 27 October 2016, a Senior Member ordered that leave to withdraw the application be refused.
7. [7]
   On 8 February 2017, the Applicant was granted leave to be legally represented in the hearing of the application.
8. [8]
   Then, on 23 February 2017, the Applicant filed an interlocutory application for miscellaneous matters by which he sought authorisation of a conflict transaction, namely authorisation for the Applicant to continue residing in Mrs RDDM’s residence, as he had since 2003 while supporting her.
9. [9]
   On 28 August 2017, a Tribunal Member made orders:

   1. (a)
      appointing the Public Trustee as Mrs RDDM’s administrator, and making consequential orders and directions for the conduct of the administration, including the provision of a financial management plan and the giving of notices of the administrator’s interest in property owned by Mrs RDDM;
   2. (b)
      declaring that any purported powers of attorney for Mrs RDDM were overtaken by the appointment of the Public Trustee as administrator; and
   3. (c)
      dismissing the Applicant’s application for authorisation of a conflict transaction.
10. [10]
    On 19 September 2017, the Applicant filed an Application for Leave to Appeal or Appeal against the decision of 28 August 2017 (“the Appeal Application”). The specified grounds of appeal were:

1. Contravention of principles of natural justice.
2. Exclusion from proceeding, procedural fairness secrecy misleading applicant and bias not acting independently.
3. Engaging with bank as fiduciary when adversarial and allegations of fraud in pleadings.
4. Inclusion of prejudicial material on file unfairness.
5. Improper purpose finding of law and fact in relation to EPOA.
6. Exclusion from final hearing did not allow applicant to challenge general appointment order.
7. Purpose of bank in seeking public trustee appointment.
8. Improper purpose of Tribunal in making general appointment.
9. Invalid appointment S 118(6) of the GAA.
10. Miscarriage of discretion S 102 of the GAA.
11. Voidable appointment of Public Trustee affected by fraud.
12. Appropriateness considerations require appointment of proposed administrator, [First Respondent] if application proceeds.

11. [11]
    The Applicant also filed an application on 19 September 2017 for a stay of the decision made on 28 August 2017. Directions were made for the progress of that stay application on 24 October, 3 November, 27 November and 21 December 2017, and on 23 January and 1 February 2018. The stay application ultimately came on for hearing before the Appeal Tribunal on 1 June 2018. On 21 June 2018, the Appeal Tribunal decided to refuse the stay application, and gave written reasons for its decision.
12. [12]
    In the meantime, the Applicant had taken steps in the primary application. On 23 November 2017, the Applicant filed an interlocutory application for miscellaneous matters seeking, amongst other things, declaratory orders that the hearing and decision made on 28 August 2017 were invalid because a notice of hearing had not been given to the adult. Directions were made on 24 January 2018 to progress that application. In June 2018, the Public Trustee was given an extension of time for compliance with those directions.
13. [13]
    Mrs RDDM died on 17 August 2018. The Tribunal was informed of her death by a letter from the Public Trustee dated 22 August 2018. The appointment of the Public Trustee as administrator was automatically revoked by Mrs RDDM’s death.^[1]
14. [11]
    Upon receiving that advice, the Tribunal dismissed the interlocutory application which had been filed on 23 November 2017, with reasons given on 6 September 2018. The learned Member concluded that as a result of Mrs RDDM being deceased, the application lacked substance and ought be dismissed.^[2]
15. [15]
    Despite the primary application lacking any ongoing utility as a consequence of the death of Mrs RDDM, the Applicant has persisted with the Appeal Application against the decision of 28 August 2017. In July 2018, the Applicant filed interlocutory applications for:

    1. (a)
       leave to completely amend his grounds of appeal; and
    2. (b)
       orders pursuant to s 114 of the QCAT Act that I, as President of QCAT, seek leave of the Court of Appeal to transfer the appeal to the Court of Appeal.
16. [16]
    A series of directions were then made for the parties to file material and submissions, with it ultimately being ordered on 4 March 2021 that the application to transfer the appeal to the Court of Appeal shall be determined on the papers.
17. [17]
    Having received the parties’ material and submissions, it is now necessary for me to determine the Applicant’s application for the matter to be transferred to the Court of Appeal.

QCAT Appeals

18. [18]
    The right of appeal to the QCAT Appeal Tribunal is governed by the provisions of Part 8 Division 1 of the QCAT Act. Section 112(1) provides to the effect that a party may appeal to the Appeal Tribunal against a decision of the Tribunal if a judicial member was not the primary decision maker.^[3] However, an appeal on a question of fact, or on a question of mixed law and fact, may only be made if the party has obtained leave to appeal.^[4]
19. [19]
    Section 113 prescribes the processes and time limits for appealing or seeking leave to appeal, and s 113A allows the Appeal Tribunal to treat an appeal or application for leave to appeal as an application to have the primary proceeding reopened.
20. [20]
    Section 114 then provides:

3. (1)
   This section applies if the president considers that –

1. (a)
   an appeal made to the appeal tribunal under this division could be more effectively or conveniently dealt with by the Court of Appeal; and

2. (b)
   it would be appropriate for the appeal to be transferred to the Court of Appeal.

3. (2)
   The president may transfer the appeal to the Court of Appeal with the court’s leave.

3. (3)
   If the president transfers the appeal to the Court of Appeal under subsection (2) –

1. (a)
   the appeal is taken to have been started before the Court of Appeal when it was started before the tribunal; and

2. (b)
   the president may make the orders or give the directions the president considers appropriate to facilitate the transfer, including an order that a party is taken to have complied with the requirements under an Act or other law for starting an appeal before the Court of Appeal.

3. (4)
   An order under subsection (3)(b) –

1. (a)
   is taken to be an order of the tribunal; and

2. (b)
   has effect despite any other Act or law.

The Grounds of Appeal and Submissions

21. [21]
    To give proper context to the current application, it is necessary to refer to the proposed amended grounds of appeal which the Applicant would seek to have referred for consideration by the Court of Appeal. Those amended grounds commenced with the following summary:

The Tribunal failed to give any and/or adequate reasons for its engagement of the appointment jurisdiction under Part 1 of Chapter 3 of the GAA Act including the basis on which the Tribunal concluded it had power to appoint an administrator(s) and more particularly the PT and therefore the appointment is bad at law and of no legal effect or standing. The reasons for decision show that Member McDonald who was represented as the decision maker had not read materials filed in the proceeding and therefore was not fulfilling a decision-making function but was merely being used as a mouthpiece for undisclosed decision makers.

The Tribunal did not have power on 28 August 2017 (the relevant date) to make an appointment of an administrator under the jurisdiction granted to it by the enabling Act (the Guardianship and Administration Act 2000, the “GAA Act”) for the adult [RDDM] (the First Respondent) for all financial matters inclusive of those matters enumerated in Schedule 2 to the GAA Act, or alternatively, which is expressly denied, for one or more financial matter, as the requirements of paragraphs (a) to (c) of subsection 1 of section 12 of the GAA Act were not satisfied as at the relevant date in relation to any financial matter.

In the alternative, if the requirements were met in relation to one or more financial matter any appointment would have to be limited to the administration of those financial matters as the attorneys appointed by the adult had since October 2011 exercised delegated decision-making powers for all financial matters and, as at the relevant date continued to manage the First Respondent’s  financial affairs.

In addition, even if those requirements had been met for one or more financial matter, which is expressly denied, the appointment jurisdiction of the Tribunal was not engaged as there was no need for the Tribunal to administer any particular aspect of the comprehensive scheme which had delegated decision making powers to the Applicant and Second Respondent as attorneys appointed by enduring deed (EPOA), and which had achieved the purposes set out in Chapter 2 of the enabling Act for a scheme since activation in October 2011.

22. [22]
    The draft amended grounds then set out more detail of the Applicant’s arguments concerning:

    1. (a)
       errors in the Member’s decision;
    2. (b)
       the proper construction and application of s 12 of the GAA; and
    3. (c)
       the evidence before the Member, and the Member’s treatment of that evidence.
23. [23]
    Those “particulars”, however, then descended into a variety of allegations of impropriety against the Tribunal and the NAB, including allegations to the effect that the Tribunal Registry conspired with NAB officers to:

    1. (a)
       manipulate the result in the case;
    2. (b)
       have the particular member appointed in order to achieve a particular outcome;
    3. (c)
       corruptly manipulate matters to secure the appointment of the Public Trustee as administrator; and
    4. (d)
       procure the removal of one member to be replaced by another who would act as a “stooge”.
24. [24]
    The tenor of the Applicant’s submissions as to why I ought seek to have the Appeal Application transferred to the Court of Appeal can be gleaned from the opening paragraphs of the submissions dated 23 July 2018, which were filed by the Applicant in support of this application (where the acronym HRD stands for the Human Rights Division of the QCAT Registry):

2. This proceeding raises the question of to what extent the Tribunal, established to give the government direct access to judicial power, should be allowed to operate a racket to transfer control of the assets of persons of impaired capacity to the Public Trustee, amounting to the unlawful seizure of assets in pursuit of a social policy agenda. Such racket operates beyond the power to appoint within the terms of the enabling Act and may constitute oppression of persons under the protection of the Supreme Court in its parens patriae jurisdiction. It is submitted that the enabling Act in recognising the parens patriae jurisdiction intends the power of the Tribunal to appoint administrators in a way that does not offend the dignity of the Supreme Court, and therein lies a problem for the HRD.
3. The social policy agenda is based on the premise that family members abuse their elderly relatives by taking control of their assets under powers of attorney and committing acts of theft. While there is legal redress against attorneys, it is difficult to identify abuse and prosecute. One of the signposts for elder abuse is assumed to be refusal of banks to grant access. Member Dooley said that banks owed a fiduciary duty to the Tribunal, and as seen by the correspondence with Ms Robertson banks correctly assume that they can give instructions that will be complied with by the Tribunal.

…

5. While the Tribunal was established as the government’s lap dog it was dressed up as a court and, the Court of Appeal has said that it has supervisory jurisdiction over the Tribunal. This jurisdiction will be exercised when the Tribunal goes wrong and exercises judicial power in a way that brings the courts into disrepute. The appointment jurisdiction is granted as the Tribunal’s exclusive right, and the Applicant says that the Court of Appeal has not considered the boundaries of the power delineated by the preconditions for exercise in section 12(1) of GAA Act and the need to demonstrate the need to implement or complete a comprehensive scheme for delegated decision-making. The Applicant also says that the Court of Appeal should be heard on the relationship between the GAA Act jurisdiction and the parens patriae jurisdiction which the Applicant says requires the Tribunal to properly address the interests of the adult in relation to whom an appointment is proposed. This enquiry is implied from Chapter 2 of GAA Act but, in practice, the Tribunal which employs fraud; denial of natural justice; and, does not act independently, is likely to end up oppressing the person who is intended to benefit from the jurisdiction granted to the Tribunal.

25. [25]
    The submissions go on to make a variety of assertions to the effect that the Tribunal had failed to adequately investigate a fraud perpetrated by a NAB manager, and indeed had supported the bank manager. The submissions continued:

9. Had the Tribunal been concerned about the interests of the First Respondent [Mrs RDDM], there would have been no reason not to seek input from the Applicant and negotiate a settlement with NAB whose position had become untenable. The backroom crew [presumably a reference to HRD] had no such concern when they decided on a bit of rough justice for the Applicant, forgetting that the focus should have been on the First Respondent. These people hidden from view oozing poison are a disgrace and, are well known to the legal profession and, should be eradicated.

26. [26]
    Further in his submissions, the Applicant summarised the reasons justifying the transfer of the appeal to the Court of Appeal as follows:

11. The Applicant wishes to have the proceeding in APL302-17 transferred to the Court of Appeal based on convenience and efficiency and respectfully asks the President to consider seeking leave from the Court of Appeal under section 114 of the QCAT Act. The reasons for transfer include:

3. i.
   The Appeal Tribunal is disqualified from conducting the appeal by actual bias as demonstrated to date.

3. ii.
   There is a reasonable expectation that the Appeal Tribunal will continue not to act independently as it moves into damage control mode.

3. iii.
   Any decision of the Appeal Tribunal will be null and void if the Appeal jurisdiction was not enlivened by the illicit de facto unenforceable appointment of the Public Trustee.

3. iv.
   The Appeal Tribunal does not have jurisdiction to determine relevant issues that go to the legal standing of the decision appealed, including whether:

3. a.
   The proceeding was closed by application filed 24 October 2016;

3. b.
   Notice was not given the First Respondent rendering the hearing and decision on 28 August 2017 invalid by the enabling Act;

3. c.
   The Tribunal consisting of Member McDonald was not properly constituted and had no power to act in GAA10044-16;

3. d.
   The decision did not deal with the originating application, which was neither granted nor refused and therefore the appointment of the Public Trustee was not by due process and is bad at law; and

3. e.
   Inadequate reasons were given for the decision appealed rendering the decision and appointment void under the QCAT Act.

3. v.
   The Appeal Tribunal does not have jurisdiction to determine if a decision in the Original jurisdiction of the Tribunal is liable to be set aside in the parens patriae jurisdiction of the Supreme Court of Queensland on the basis that the decision to appoint the Public Trustee was oppression of the First Respondent who had in about October 2011 rejected any such appointment being urged on her by the manager of the Sandringham branch of NAB. The oppression in the Original jurisdiction of the Tribunal was collusion with and direction from NAB, fraud in the Registry and interference in the decision-making process by the Tribunal. The First Respondent is a person of impaired capacity under the protection of the Supreme Court of Queensland in its parens patriae jurisdiction and needs protection from the Tribunal’s oppressive conduct.

3. vi.
   The Appeal Tribunal does not have jurisdiction to declare the decision to appoint the Public Trustee to be void ab initio as a decision that is liable to be declared void ab initio is not a final enforceable decision that would enliven the limited merits based Appeal jurisdiction and, allowing the proceeding in APL302-17 to continue in the Appeal jurisdiction of the Tribunal would be against public policy as it undermines the administration of justice as it encourages fraud, breach of rules of natural justice, failure to maintain independence, collusion with banks, the public trustee and the government as tactics to secure a de facto appointment and unlawful seizure of the assets of a person of impaired capacity made by unenforceable orders and such illicit and limited administration is in conflict with the purpose and/or objects of the GAA Act which is to ensure that a comprehensive scheme is in place to allow delegated decision making by decision makers covering all financial matters:

3. a.
   The decision to appoint the Public Trustee was obtained through the fraud of the Case Manager and his associates and should be set aside as being void ab initio.

3. b.
   There are egregious breaches of the rules of natural justice at various stages in the Original jurisdiction

3. c.
   Members of the Tribunal conspired with other parties to secure the removal Member Dooley when she indicated an intention to appoint the Applicant and Second Respondent administrators thus refusing the direction from NAB. The President in refusing to entertain representations from the Applicant and in prematurely choosing an Appeal Tribunal has put into doubt his independence and as a Judge of the Supreme Court is facilitating oppression of the First Respondent.

3. vii.
   The relief sought by the Applicant, which circumvents a protracted appeal process conducted in the Appeal Tribunal designed to further and cover up the illicit conduct of the HRD in the Original jurisdiction, can only be ordered by the Court of Appeal which makes it the Court of competent jurisdiction.

27. [27]
    The Applicant then identified in his submissions the following:

13. The questions to be addressed by the Court of Appeal:

3. i.
   Was leave required for the Applicant to withdraw the originating application and if so did the decision maker need to be aware that the relief sought in the originating application was different from the relief asserted by the Case Manager in his email sent on 22 September 2016 and the relevance of misstating relief based on there being nothing on NAB file about the proposed administrator.

3. ii.
   Based on the review of the file of the First Respondent at the aged care facility the first 2 of 5 notices of hearing were on the file but not delivered to the First Respondent but there were no copies on file of any of the last 3 notices of hearing including the notice dated 11 August 2017. Did the apparent failure to send out notice of hearing invalidate the hearing and decision and if so should GAA 10044-16 be reinstated.

3. iii.
   The enabling Act at section 102 sets out requirements for constituting tribunals, what factors should President consider when deciding appropriate number and did those considerations change when the tribunal was reconstituted after Member Dooley was scheduled to be appointed a magistrate. Is choosing a panel an administrative or judicial function given its use by the Tribunal to control the decision-making process in GAA 10044-16.

3. iv.
   If the Tribunal is conducting a hearing on the papers under section 30 of the QCAT Act what consequences flow from it being apparent from the reasons for decision that the panel has not read the originating application and materials filed.

3. v.
   The adequacy of reasons for decision in identifying the grounds for exercise of power and the effect of not providing a clear statement of reasons in a merits-based appeal on ability of Appeal Tribunal to carry out its function, does failure to give adequate reasons render a decision null and void.

3. vi.
   The policy advised in the notice of hearing is that “The Tribunal is able to appoint any party that the Tribunal considers most appropriate” as the parties include the proposed administrator(s) and PT [Public Trustee]. This is in effect a statement that the Tribunal can use any application to appoint the PT without for instance giving an Applicant to nominate another proposed administrator.

3. vii.
   Should the Tribunal act in its established form to conduct judicial business relating to abuse of process, irregular decisions, fraud, natural justice, independence and on whose application. Referral of questions of law to Court of Appeal where an advisory opinion appropriate. President’s supervisory jurisdiction in Tribunal, convenience and efficiency in having Tribunal deal with these issues.

3. viii.
   Where a court refuses enforcement of orders what process is required to correct error in the Tribunal, correction of record generally.

3. ix.
   Orders under parens patriae jurisdiction, question of law referral to Court of Appeal by the President. Power of Court of Appeal to make orders in a Tribunal proceeding.

28. [28]
    The Applicant filed further written submissions dated 12 November 2018 in support of his application to transfer the proceeding to the Court of Appeal. It is sufficient to note that the Applicant summarised his position in respect of the application by saying:

3. The Applicant in his amended ground of appeal is relying on a question of law, that is the limitations in Chapter 2 and 3 of GAA on the power of the Tribunal to appoint an administrator when there is a pre-existing comprehensive scheme. The transfer of proceeding will allow the [Court of Appeal] to dispose of the proceeding as outlined in paragraph 11 below without hearing an appeal.
4. The [Court of Appeal] is the court of competent jurisdiction to refer the conduct of Tribunal employees for investigation and to refer to APRA NAB’s corrupt interaction with the QCAT Case Manager which has undermined internal controls at NAB and enlarged the financial loss suffered by the First Respondent caused by NAB stealing her funds as detailed below.

29. [29]
    In paragraph 11 of those submissions, the Applicant set out the relief he would be seeking from the Court of Appeal, namely:

The Court will be asked to make declaratory orders that the Appointment of the Public Trustee was invalid and/or of no legal standing; then either, finding the proceeding ended on 24 October 2016, or, in the alternative, dismissing the originating application; and, declaring the proceeding in APL302-17 was not commenced as leave was not obtained, thus disposing of the transferred proceeding.

30. [30]
    The submissions otherwise largely consist of a recitation of the Applicant’s numerous allegations of incompetence and corruption on the part of the Tribunal, the Tribunal Registry, the Public Trustee and the NAB.
31. [31]
    At the same time, the Applicant filed an affidavit to which he exhibited, amongst other things, a copy of the transcript of the ex tempore reasons given by the Member when making the primary decision on 28 August 2017.
32. [32]
    In further written submissions dated 4 September 2020, the Applicant persisted with his submission that APL302-17 should be transferred to the Court of Appeal. He argued that there are two questions of law in relation to the proceeding that are of general importance. Further, the Applicant said that the conduct of the various proceedings in the Tribunal, including the appeal, point to:

…a lack of institutional integrity within the Human Rights Division that means that the Tribunal faces a possible legal bar in taking any further steps in the proceeding until the practices and policies of the Division are investigated and if necessary reformed.

In this regard, the Applicant restated his previous assertions about the unlawfulness and corruption of the QCAT Registry and its members. He submitted that:

…the proper administration of justice demands that this conduct cannot continue unchallenged and the Court of Appeal has a supervisory jurisdiction over QCAT that will allow it, if it deems it to be necessary, to order an investigation of the Applicant’s claims, which he submits are supported by submissions, the record and the course of proceedings since the initiating process was filed in the first half of September 2016.

33. [33]
    These submissions of September 2020 argued that the two questions of law went to the “engagement of the appeal jurisdiction by an invalid decision purporting to end a proceeding and, whether in such a case, the Tribunal in its original jurisdiction can be functus officio.” If, by this, the Applicant is contending that the Tribunal was rendered functus officio by what he claims was an invalid decision at first instance, it should then follow that the Applicant’s entire appeal is nugatory. But it is not necessary to decide this point presently. What is relevant is the articulation in these submissions of the questions of law which the Applicant says should be referred to the Court of Appeal,^[5] namely in relation to the application filed on 24 October 2016 (the application to withdraw the application for appointment of administrator) and the Tribunal’s decision of 27 October 2016:

    1. (a)
       Was leave required as a matter of law in circumstances where s 122(3) of the GAA provides that s 46(2) of the QCAT Act does not apply to applications under the GAA?
    2. (b)
       If leave was required and the Applicant was not advised of his right of appeal under s 121(2) of the QCAT Act, should an extension of time to appeal be granted with the appeal being decided on the state of the papers at 24 October 2016, including various papers specified in the submissions?
34. [34]
    Despite articulating these questions, the submissions then, somewhat confusingly, refer to other legal issues which, it seems, the Applicant wants to ventilate before, and seek the opinion of, the Court of Appeal. These seem to include questions about the consequences of a particular adult not being given notice of hearings, and what the consequences are on transfers of assets effected by the Public Trustee in circumstances where the appointment of the Public Trustee as administrator was void ab initio (as contended by the Applicant).
35. [35]
    I should also record that the First Respondent filed written submissions dated 18 September 2020 in support of the Applicant’s request for the matter to be removed to the Court of Appeal. Those submissions include a direct attack on my personal integrity and independence. As is conventional, I will let these written reasons speak for themselves as to whether I have brought an independent mind to bear on the questions presently before me for determination. Otherwise, his submissions largely reflect the Applicant’s allegations about bad and corrupt behaviour by the QCAT Registry and members.
36. [36]
    The Second Respondent (the Public Trustee) filed submissions dated 18 September 2020 concerning the application to transfer the matter to the Court of Appeal. Those submissions traversed the facts of the procedural background, both before and after Mrs RDDM’s death. The submissions noted that the Second Respondent was unable to address many of the allegations made by the Applicant, but did refer to specific legislative provisions and other matters which related to at least some of those allegations, including that the Tribunal may inform itself in any way it considers appropriate,^[6] and that there was a Certificate of Authority dated 11 December 2017 made by the Public Trustee under s 138 of the Public Trustee Act 1978 (Qld) certifying the Public Trustee’s appointment as Mrs RDDM’s administrator for financial matters. The submissions also noted that the Applicant had not adduced any evidence to support allegations made of harm suffered to Mrs RDDM’s estate as a consequence of the actions of the Public Trustee.
37. [37]
    The Applicant filed written submissions in response dated 19 March 2021. Those submissions largely comprise criticisms of the Public Trustee’s administration of Mrs RDDM’s estate. Those submissions then conclude as follows:

23. QCAT is an inferior State Court and therefore under the supervision of the Supreme Court being the superior court of record at the apex of the state court hierarchy. Section 156 of the QCAT Act restricts applications to jurisdictional error. The Court of Appeal has not explained how supervision is effected in view of the court’s agreement not to issue prerogative writs and the above privative clause. Jurisdictional error in administrative law is normally talked about in relation to tribunals not courts.
24. In response to paragraph 36 the Applicant submits that the President [presumably a reference to the QCAT President] has power to adjudicate on certain matters:

Was leave required, section 122(3) of GA Act. Leave only required for administrator to end appointment.

If required should leave have been granted – leave to file appeal out of time.

Does an invalid decision under S 118(6) and invalid orders give rise to a right to appeal with or without leave?

25. The President can then decide what if any action needs to be taken by the courts to investigate claims raised by the Applicant and [the First Respondent] in submissions.

Discussion

38. [38]
    Section 114(1) of the QCAT Act limits the power that I, as President, have to seek leave to have an appeal transferred to the Court of Appeal to those cases in which I consider that both of the following elements are satisfied:

    1. (a)
       the appeal could be more effectively or conveniently dealt with by the Court of Appeal; and
    2. (b)
       it would be appropriate for the appeal to be transferred to the Court of Appeal.
39. [39]
    Despite the Applicant’s more recent submissions in relation to my power to adjudicate on certain identified matters, it is clear from my recitation of the submissions previously advanced by the Applicant that his argument is that there are two categories of matter which warrant referral to the Court of Appeal, namely:

    1. (a)
       specified questions of law; and
    2. (b)
       some general enquiry by the Court of Appeal, purportedly founded in its “supervisory jurisdiction”, into, amongst other things, the Tribunal’s internal management, practices and procedures.
40. [40]
    The questions of law identified by the Applicant concern:

    1. (a)
       the proper construction and application of s 122 of the GAA;
    2. (b)
       identification of the rights of appeal against the decision of 28 August 2017, and the procedures for any such appeal; and
    3. (c)
       as an allied question, whether the decision of 28 August 2017 was “void ab initio” (as contended by the Applicant), and if so whether there are any appeal rights.
41. [41]
    These questions involve issues of statutory interpretation, and otherwise go to the procedural rights of parties in matters before the Tribunal. These are the sorts of issues which are, and ought be, regularly determined by the Appeal Tribunal. The Applicant has not given any compelling reason as to why these questions, which are of a nature ordinarily dealt with in the Appeal Tribunal, should be removed into the Court of Appeal.
42. [42]
    It is relevant in this regard to consider the conventional process. Under the prescribed appeal regime, these questions would be ventilated before the Appeal Tribunal. That process would, with the necessary leave, include a final determination on any necessary questions of fact. If dissatisfied with the Appeal Tribunal’s decision then, by s 150 of the QCAT Act, the Applicant could seek to appeal to the Court of Appeal. But that right of appeal would be limited to questions of law, and may only be pursued if the Applicant obtains leave to appeal.^[7] The reasons and justification for the requirement that a party in such a position obtain leave to appeal were recently restated in Prestige & Rich Pty Ltd & Anor v Chief Executive, Department of Justice and Attorney General, Office of Fair Trading & Anor.^[8]
43. [43]
    There would be nothing either effective or convenient in simply passing these questions “up the line” to the Court of Appeal. Rather, to do so would subvert the statutory appeal process, which expressly allows for questions such as this to be determined by the Appeal Tribunal, and then for an appeal only on a question of law to lie to the Court of Appeal, with leave. In relation to the latter point, it is relevant also to note that the Court of Appeal has reaffirmed the restrictions which are imposed in relation to appeals to the Court of Appeal from the Appeal Tribunal by reason of the limitation that they be only on questions of law.^[9] The process sought by the Applicant would inevitably involve the Court of Appeal investigating disputed facts.
44. [44]
    In my view, the Applicant has not demonstrated any good reason for circumventing the conventional process. There is no reason why these questions cannot be decided by the Appeal Tribunal. It would be neither more effective nor more convenient for these questions to be dealt with by the Court of Appeal, nor would it be appropriate to transfer the appeal.
45. [45]
    Otherwise, the matters sought to be referred to the Court of Appeal amount, in effect, to the Applicant seeking that the Court of Appeal undertake some sort of wide ranging commission of inquiry into the conduct of the personnel of the Tribunal and its Registry, Tribunal and Registry practices and policies, the internal management and administration of the Tribunal, allegations of corrupt conduct involving third parties, and issues of legislative policy, all ostensibly under the mantle of the Court of Appeal’s supervisory jurisdiction.
46. [46]
    The Applicant’s position misconceives the Supreme Court’s supervisory jurisdiction. The nature and ambit of that jurisdiction was described by the plurality of the High Court in Kirk v Industrial Court (NSW) (“Kirk’)^[10] as follows:^[11]

The supervisory jurisdiction of the Supreme Courts was at federation, and remains, the mechanism for the determination and the enforcement of the limits on the exercise of State executive and judicial power by persons and bodies other than the Supreme Court. That supervisory role of the Supreme Courts exercised through the grant of prohibition, certiorari and mandamus (and habeas corpus) was, and is, a defining characteristic of those courts.

47. [47]
    That the decisions of QCAT are amenable to the Supreme Court’s supervisory jurisdiction is reinforced by s 156 of the QCAT Act, which provides that a decision or the conduct of the Tribunal in a proceeding is not amenable to judicial review under the Judicial Review Act 1991 (Qld) “other than to the extent the decision or conduct is affected by jurisdictional error.”
48. [48]
    It is not necessary for present purposes to essay the question of what is encompassed by the term “jurisdictional error”. It is sufficient to note that there remains a distinction between jurisdictional and non-jurisdictional errors, even though that distinction can be difficult to discern. In Kirk, the plurality drew on the High Court’s previous decision in Craig v South Australia,^[12] and other authorities in which the difficulty of identifying that distinction has been noted, and said:^[13]

The drawing of a distinction between errors within jurisdiction and errors outside jurisdiction was held, in Craig, to require different application as between “on the one hand, the inferior courts which are amenable to certiorari and, on the other hand, those other tribunals exercising governmental powers which are also amenable to the writ”. The Court said that:

“If … an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision which reflects it.”

By contrast, demonstrable error on the part of an inferior court “entrusted with authority to identify, formulate and determine” relevant issues, relevant questions, and what is and what is not relevant evidence was held, in Craig, not ordinarily to constitute jurisdictional error. The Court held that:

“a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error.”

49. [49]
    The exercise of the Supreme Court’s supervisory jurisdiction over QCAT, therefore, goes to the granting of relief in cases in which it is demonstrated to the Court that the Tribunal has committed a jurisdictional error in making a decision. It is, however, no part of the Court’s role or functions, whether under its supervisory jurisdiction or otherwise, to engage in and conduct the sort of wide-ranging inquiries and investigations posited by the Applicant. There is, therefore, no proper basis for acceding to the Applicant’s request that these investigations be removed to the Court of Appeal.

Conclusion

50. [50]
    Accordingly, I do not consider that it would be appropriate for any part of the Appeal Application to be transferred to the Court of Appeal. Nor would it be appropriate for me to seek the leave of the Court of Appeal for such a transfer. The Applicant’s application for a transfer under s 114 will be dismissed.
51. [51]
    There remains the question of the ongoing utility of this application for leave to appeal or appeal. The primary decision of 28 August 2017 is now spent, by reason of the intervening death of Mrs RDDM. It is not at all clear what utility is served by the pursuit of the appeal in those circumstances. In the absence of any such demonstrable utility, the Appeal Application should be dismissed. I consider this to be an appropriate case in which to call on the Applicant to show cause why the application for leave to appeal or appeal ought not be dismissed under s 47 of the QCAT Act, and directions will be made to facilitate that course.