Queensland Building Services Authority v Andrews
[2009] QDC 97
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- Unreported Judgment
- Queensland Building Services Authority v Andrews[2009] QDC 97
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Queensland Building Services Authority v Andrews[2009] QDC 97
Queensland Building Services Authority v Andrews[2009] QDC 97
DISTRICT COURT OF QUEENSLAND
CITATION: | Queensland Building Services Authority v Andrews [2009] QDC 97 |
PARTIES: | QUEENSLAND BUILDING SERVICES AUTHORITY (Appellant) v PAUL GRAHAM ANDREWS (Respondent) |
FILE NO: | 3391/08 |
DIVISION: | Civil Applications |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Commercial and Consumer Tribunal |
DELIVERED ON: | 21 April 2009 (ex tempore) |
DELIVERED AT: | Brisbane |
HEARING DATE: | 21 April 2009 |
JUDGE: | Koppenol DCJ |
ORDER: | Appeal dismissed |
CATCHWORDS: | APPEAL – COMMERCIAL AND CONSUMER TRIBUNAL – where no jurisdiction for Tribunal to hear claim – whether there can be an order for costs Commercial and Consumer Tribunal Act 2003, s 8, s 9. Chancellor Park Retirement Village Pty Ltd v Squire [2004] QDC 172, followed Skaines v Kovac Enterprises Pty Ltd [2007] 1 Qd R 98, explained Gedeon v Commissioner of the New South Wales Crime Commission (2008) 82 ALJR 1465, applied |
COUNSEL: | A.West for the Appellant The Respondent appeared on his own behalf |
SOLICITORS: | Queensland Building Service Authority, Legal Service Division for the Appellant The Respondent appeared on his own behalf |
- [1]This is an appeal against a decision of the Commercial and Consumer Tribunal (the Tribunal).
- [2]The Tribunal decided that as it did not have jurisdiction to hear the respondent's claim, it did not have jurisdiction to award costs. That is consistent with McGill DCJ's decision in Chancellor Park Retirement Village Pty Ltd v Squire [2004] QDC 172 (a decision with which I respectfully agree), which held that the Tribunal does not have power to order costs in circumstances where the Tribunal does not have jurisdiction.
- [3]The appellant Queensland Building Services Authority challenged the Tribunal's conclusion about costs.
- [4]It first drew attention to sections 8 and 9 of the Commercial and Consumer Tribunal Act 2003, which provide that (a) the Tribunal has jurisdiction to deal with the matters it is empowered to deal with under that Act or an empowering Act and (b) may do all things necessary or convenient to be done for exercising its jurisdiction. It then relied upon comments by Fryberg J in Skaines v Kovac Enterprises Pty Ltd [2007] 1 QdR 98 at 100-101, that where an issue arises as to whether the Tribunal has jurisdiction in a particular case, the Tribunal has an obligation to determine whether it has jurisdiction─or as it was also expressed, it is the duty of the Tribunal to resolve jurisdictional facts and to determine its own jurisdiction.
- [5]That meant, it was argued, that the Tribunal therefore had the jurisdiction to determine if it has jurisdiction─and accordingly, it followed that as the Tribunal then had jurisdiction, it had the power to award costs.
- [6]That submission should not be accepted. With respect, all that Fryberg J was saying, in my view, is that which has been long settled─namely, that if the jurisdiction of an inferior court or tribunal depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction: see Halsbury's Laws of England, 4th ed (Reissue), vol 10, para 314.
- [7]Thus, by resolving those jurisdictional facts, the Tribunal determines if it has jurisdiction. That resolution process, however, does not confer jurisdiction.
- [8]As the High Court said in Gedeon v Commissioner of the New South Wales Crime Commission (2008) 82 ALJR 1465 at [43], generally the expression jurisdictional fact “is used to identify a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question.”
- [9]In the present case, the jurisdictional fact criterion was not satisfied (as the Tribunal held that it did not have jurisdiction to hear the respondent’s claim). Accordingly, as the Tribunal's jurisdiction was not enlivened, it could not make an order for costs.
- [10]The appeal will therefore be dismissed.