Ritson v Ryan[2023] QCATA 86

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This is an application for leave to appeal from an Adjudicator (as he then was) who on 21 October 2021 dismissed the appellant’s application in a minor civil dispute matter.  Because it was such a matter, the appellant requires leave to appeal.^[1]  This was the fourth time that the appellant’s claim has been dismissed.  On each of the previous three occasions, the appellant was successful in having the decision overturned on appeal to the Appeal Tribunal.  The third successful appeal was Ritson v Ryan [2021] QCATA 100, where the history of the proceeding was set out. 
2. [2]
   One complication which arose in relation to this proceeding, which was commenced by the filing of an Application for Leave to Appeal or Appeal on 17 November 2021, is that on 12 August 2021 (in fact prior to the decision in the third appeal) the appellant was made bankrupt.  The effect of this was to stay the proceeding under the Bankruptcy Act 1966 (Cth) s 60(2) and to vest his property in his trustee.  However, the operation of the sequestration order was suspended by a Federal Court judge, to the extent necessary to permit the minor civil dispute matter to be prosecuted by him, on 24 September 2021. 
3. [3]
   The appellant has submitted that the effect of this suspension was that he is also entitled to pursue an appeal, and hence an application for leave to appeal, against the order dismissing his application in the minor civil dispute proceeding, by analogy with the proposition that a stay of a proceeding also stays any appeal in relation to the proceeding.^[2]  What was decided in Feiglin was that the fact that the proceeding had become stayed under s 60(2) before judgment was delivered dismissing the claim meant that an appeal from that decision was also stayed.  Mukhtar AsJ arrived at this conclusion on the basis that the proceeding in the appeal was part of, or a proceeding within, the proceeding at first instance which had been dismissed, and which was the subject of the appeal. 
4. [4]
   I do not agree with that proposition, since I consider that an appeal (and for that matter an application for leave to appeal) is a separate proceeding from the proceeding at first instance.  The term “proceeding” is defined, in Schedule 3 to the Queensland Civil and Administrative Tribunal Act 2009 (Qld), as (relevantly): “a proceeding before the tribunal, including an appeal before the appeal tribunal and a proceeding relating to an application for leave to appeal to the appeal tribunal.”
5. [5]
   So a proceeding before the Tribunal is a proceeding, an appeal before the Appeal Tribunal is also a proceeding, and an application for leave to appeal to the Appeal Tribunal is also a proceeding.  That implies that they are different proceedings.  The QCAT Act s 33, which speaks about making an application, and s 143, about commencing an appeal or application for leave to appeal, are in very similar terms, and although s 36, dealing with when a proceeding starts, speaks of an application or referral, it would be consistent with the overall scheme of the Act for the same thing to indicate when an appeal starts.  In the present case, the proceeding commenced by the appellant’s application for leave to appeal started when his application was accepted by the principal registrar: s 36.  I also note that an appeal is regarded as a separate proceeding under the Uniform Civil Procedure Rules 1999 r 8(2). 
6. [6]
   The problem with an appeal by a person who has become bankrupt is not that the proceeding sought to be appealed from is stayed, but that the right of appeal is regarded as itself property which vests on bankruptcy in the trustee.^[3]  This does not apply to all rights to appeal, but would apply to a right to appeal against the dismissal of a money claim since the proceeds would form part of the bankrupt estate.  This was not an issue in Feiglin, as the person seeking to appeal was the assignee of the trustee, but that circumstance illustrates the effect of this proposition. 
7. [7]
   The statutory stay would not prevent the Tribunal from making its decision,^[4] but any right of appeal then coming into existence would be after-acquired property of the bankrupt, and vest in the trustee.  In those circumstances, the bankrupt is not competent to commence the appeal, or indeed an application for leave to appeal, so there is no valid application for leave to appeal on foot.  The purported application should be dismissed or struck out.  The operation of this principle, as expounded in Cummings v Claremont Petroleum NL (1996) 185 CLR 124 at 135, 6 has been confirmed many times by the Court of Appeal.^[5] 
8. [8]
   This is different from the question of whether an appeal, if commenced, would be stayed under s 60(2).  It is clear that many proceedings which are not property vesting in the trustee on bankruptcy are still stayed under s 60(2), as long as they can be described as civil proceedings.^[6]  The next question however is, what effect does the order of the Federal Court of 24 September 2021 have on this. 
9. [9]
   The order in terms provided:

The operation of the sequestration order made against the estate of the appellant on 12 August 2021 be suspended to the extent necessary to permit the appellant to prosecute the proceedings MCDO2024/16 in the Queensland Civil and Administrative Tribunal.

10. [10]
    That is in terms a specific reference to the minor civil dispute proceeding commenced by the appellant in 2016; it is not a reference to an appeal, or an application for leave to appeal, from the decision in that proceeding.  That proceeding was dismissed on the ground of want of jurisdiction.  Accepting that the QCAT Act gives a right to appeal to the Appeal Tribunal against that decision, subject to the grant of leave as required by the provision mentioned earlier, I cannot see how filing an application for leave to appeal in the registry can be said to be “prosecuting” the proceeding identified in the Federal Court order.  As I have said, it involved commencing a new proceeding, which was even given a new file number.  It may be that in this matter, more than in most, appeals have become a regular feature of the proceeding, but I do not consider that they have as a result become part of the proceeding.  I therefore reject the appellant’s submissions on this point, and find that he was not competent to commence this application for leave to appeal, which should be dismissed or struck out. 

Territorial jurisdiction of QCAT

11. [11]
    In case a different view should be taken elsewhere, however, I will say something about the question of the territorial jurisdiction of the Tribunal, the ground on which the Member found that the Tribunal lacked jurisdiction.  This was essentially on the basis that the subject matter in dispute between the parties was insufficiently connected to Queensland to give the Queensland Tribunal territorial jurisdiction in relation to it.  The appellant for the purpose of this challenge relied on a statement in an earlier decision of the Appeal Tribunal, where it was said that no particular connection with Queensland, either by residence of the parties or by the subject matter of the dispute, is required for the Tribunal to have jurisdiction in a minor civil dispute: [33].  
12. [12]
    The QCAT Act says nothing about the issue of the territorial jurisdiction of the Tribunal.  The law-making power of the Queensland Parliament is by the Queensland Constitution “to make laws for the peace welfare and good government of the colony in all cases whatsoever.”^[7]  It is difficult to see how that is engaged by the resolution of a dispute between a resident of New South Wales and a resident of Victoria in relation to an alleged claim of breach (in Victoria) of a contract, or series of contracts, apparently made in Victoria.  The Acts Interpretation Act 1954 s 9 provides that an Act does not apply to persons matters or circumstances if such application would exceed the legislative power of the Parliament. 
13. [13]
    The position is complicated however by the issue of the status of the Tribunal for the purposes of Commonwealth legislation.  At common law the question of the jurisdiction of a court depended on the service of its process, within the relevant territory or outside the territory, but in the latter case only when that was allowed by statute.  The position of service of the process of courts and tribunals within Australia is now governed by the Service and Execution of Process Act 1992 (Cth), which deals separately with service of process of a court and of a tribunal.  In the case of a court of a state, the effect of that Act is that process can be served anywhere in Australia without showing any further connection to that state.  On the other hand, in the case of a tribunal, the application of the provisions for interstate service is confined to the categories of cases listed in s 48 of that Act.  It is sufficient to say that those categories do not include the case the appellant pursued in this matter. 
14. [14]
    It has however been held by the Tribunal that it is a court of a state for the purposes of the Service and Execution of Process Act 1992.  In Li v Medical Board of Australia (No 1) [2013] QCAT 595 at [12], Horneman-Wren DCJ, the then Deputy President of the Tribunal, held as much, on the basis of the decision of the Court of Appeal in Owen v Menzies [2013] 2 Qd R 327.  The decision in Li has been followed in a number of other decisions of the Tribunal.^[8]  Owen v Menzies was concerned with a different point, whether the Tribunal was a court of a state for the purposes of the Australian Constitution s 77, and the decision (that it was) was based largely on the circumstance that the QCAT Act s 164(1) provides that the Tribunal is “a court of record”.  This was described at [10] by the then Chief Justice as a “very strong consideration.” 
15. [15]
    This conclusion differs from the conclusions reached by the Courts of Appeal in New South Wales and Victoria, about whether the Tribunals in those states were courts of a state for the purposes of the Constitution.  In Attorney-General (NSW) v Gatsby (2018) 99 NSWLR 1, the Civil and Administrative Tribunal of New South Wales was declared not to be a court of a state for the purposes of the Constitution s 77.   McColl JA said at [223] (omitting references):

To determine whether a body is a State court, one must consider the structure, membership and functions of the body, as defined by State law.  One consideration will be its title, but that is not necessarily determinative for constitutional purposes.  If the body does not satisfy the substantive criteria for a State court under s 77(iii), it may not be a State court merely because it is called a “court”, or even a “court of record”, under its constituting statute.  The fact that NCAT is described as a “tribunal”, not a “court”, is not irrelevant, but its relevance is as a signal that Parliament was establishing a body without some characteristics conventionally associated with a court.

16. [16]
    That Court was aware of the decision in Owen v Menzies, which was mentioned in the judgments.  More recently, in Meringnage v Interstate Enterprises Pty Ltd [2020] VSCA 30 it was held that the Victorian Civil and Administrative Tribunal was not a court of a state for the purposes of the Constitution s 77.  Again, Owen v Menzies was referred to, and at [86] the Court rejected one of the propositions relied on in Owen by McMurdo P.  The Court, at [79] – [97], analysed the features which led it to the conclusion that that tribunal was not a court of the state.  It appears to me that all of them apply equally to QCAT.  The one distinguishing feature is that the Victorian Tribunal is not described expressly as “a court of record” in its Act.  Neither is the New South Wales tribunal, in its Act. 
17. [17]
    The significance of a court being “of record” was traditionally that its judicial proceedings were “enrolled” to stand as a perpetual record and testimony,^[9] and that it had the power to fine or to imprison for contempt, or (perhaps) for any other offence.^[10]  The Tribunal has no criminal jurisdiction, although it can in some disciplinary matters impose a fine, I expect as a form of civil penalty.^[11]  It has power to punish for contempt, the same as that of the Supreme Court,^[12]  but that power can be exercised only by a judicial member.^[13]  The existence of a power to punish for contempt is consistent with its being a court; the fact that only a tiny fraction of its members can exercise that power is not. 
18. [18]
    The analysis of the then Chief Justice in Owen v Menzies involved the consideration of a long list of factors which were relied on as showing that the Tribunal was not a court of a state.  It is at least arguable that his Honour’s approach involved dealing with these one at a time, and showing why each was not necessarily inconsistent with the Tribunal’s being a court of a state, without considering the impact of the combined effect of all of them on the issue of the correct characterisation of the Tribunal.  The judgments arguably placed too much emphasis on the label attached by s 164(1), and paid insufficient attention to the various characteristics of the body established by the QCAT Act.  For the purposes of the Constitution, what matters is whether a body really is a court of a state.  A state parliament cannot make anything a court of a state for the purposes of the Constitution just by putting that label on it. 
19. [19]
    In my respectful opinion, the analysis of the Victorian Court of Appeal is worthy of attention.  It shows that in important respects that tribunal is not like a court, and the reasoning generally applies also to this Tribunal.  As well, this Tribunal is not bound by the law of evidence, or any practices or procedures applying to courts of record,^[14] a party is not entitled to be legally represented in a proceeding unless given leave in accordance with certain restrictions,^[15] and prima facie no order for legal costs is to be made.^[16]  Unlike the courts of summary jurisdiction in 1901, there is only very limited scope for judicial review of the Tribunal,^[17] and only limited scope for appeal to the Court of Appeal.^[18] 
20. [20]
    A decision of the Tribunal is binding on all parties to the proceeding, but the final decision of a minor civil dispute – which the present matter was – does not prevent a court or another tribunal making a decision about an issue decided by the tribunal, if that issue is relevant in another matter.^[19]  Another feature of a minor civil dispute is that the Tribunal is required to “make orders that it considers fair and equitable to the parties to the proceeding in order to resolve the dispute”.^[20]  In Owen v Menzies the then Chief Justice dismissed this consideration by saying that the Tribunal was still obliged to decide matters according to law, but if that is the case, what effect does that provision have? 
21. [21]
    If the Tribunal is not a “court of a state” for the purposes of the Constitution s 77, federal jurisdiction cannot be invested in it by the Commonwealth Parliament.  The significance of that, in the present case, is that, because the appellant and the respondent are residents of different states, litigation between them is an aspect of federal jurisdiction, and litigation between them can be carried on only in a federal court, or in a court of a state invested with federal jurisdiction.^[21]  So unless the Tribunal is a court of a state for the purposes of the Constitution, it has no jurisdiction to entertain the appellant’s claim against the respondent at all. 
22. [22]
    If I had to decide the matter, I would be bound by the decision in Owen v Menzies, and would have to find that the Tribunal has jurisdiction to hear and decide the appellant’s claim.  I would however respectfully suggest that, in the light of the decisions of the Courts of Appeal in New South Wales and Victoria, the Court of Appeal should reconsider the decision in Owen v Menzies, at least so far as it concerns the characterisation of the Tribunal as a court of a state. 
23. [23]
    As to the question of whether the Tribunal is a “court of a state” for the purposes of the Service and Execution of Process Act 1992 (Cth), that is strictly speaking a different question.  In the first place, that Act deals separately with courts and tribunals, whereas the Constitution did not contemplate the existence of the latter, and there is no doubt that the Tribunal satisfies the definition of “tribunal” in that Act.  It could be said that, if the Tribunal is not a court of a state for the purposes of the Constitution, it is unlikely to be one for the purposes of this Act, but the converse does not necessarily follow.  The issue under the Commonwealth Act is whether it falls into the category of “court” or “tribunal” in that Act, which depends on the interpretation of that Act, and it is arguable that it belongs more naturally in the latter category under that Act, despite the terms of s 164(1) of the QCAT Act.  If so, again the Tribunal does not have jurisdiction.  In the circumstances, I do not think that there is any useful purpose in my expressing a concluded view on this. 
24. [24]
    If the Tribunal has jurisdiction, and Owen v Menzies is binding, it follows that, if the appellant has standing to make this application, he has prima facie a good argument on the appeal.  If the Tribunal is a court for the purposes of the Service and Execution of Process Act 1992 (Cth), so long as the appellant complied with the procedures for service under that Act, the Tribunal had jurisdiction in the matter.  That Act, in s 20, specifically permits the staying of a proceeding on the basis that a court of another state is the appropriate court to determine the matter.  That I think was the correct basis for the respondent to challenge the proceeding in the Tribunal, if it otherwise had jurisdiction, but it is not clear that there was ever an application by the respondent to stay under s 20, and it is now too late to do so.^[22]  Subject to all of those matters, for the reasons given in Spedding Estates Pty Ltd v Cotterill (supra), the decision was in error, and the matter should be heard on the merits and decided. 
25. [25]
    For reasons given earlier, however, the application for leave to appeal is dismissed.