Kerr v Member Traves of QCAT[2022] QSC 289

SUPREME COURT OF QUEENSLAND

1. [1]
   In 2013, the applicants, Mr Kerr and Ms McDonald, purchased 94 Nanando Drive, Calliope, being Lot 133 on Survey Plan 245966, Local Government area of Gladstone. Daniel Lee Davis owns the adjoining allotment, 90 Nanando Drive. The applicants observed a concentrated water flow from Mr Davis’ property onto their own property, causing considerable damage. The applicants have undertaken many steps to attempt to correct the problems caused by the concentrated water flow and have on numerous occasions over several years contacted the Gladstone Regional Council to assist them, however, they have not had a satisfactory outcome.
2. [2]
   On 25 October 2021, the applicants wrote to their neighbour, Mr Davis, alleging breaches of the Building Code of Australia, Queensland Development Code and Building Act 1975 (Qld).
3. [3]
   On 2 February 2022, the applicants filed an application for a minor civil dispute in the Queensland Civil and Administrative Tribunal (QCAT).  By their application, the applicants sought an order from QCAT that:

“The respondent take immediate action to cease directing concentrated overland surface water flow directly onto our property at 94 Nanando Drive, Calliope in the State of Queensland by either

1. (a)
   realigning the level of the formed terraces to fall towards the road alignment of the property, or

2. (b)
   collecting overland flow into appropriate drainage that directs overland flow to a lawful discharge outlet…”

4. [4]
   By paragraph 19 of the application, the applicants, in addition to the injunctive relief sought in paragraph 4, sought compensatory damages being an unliquidated demand for some $6,867.56.  The application was received by QCAT and sealed on 22 February 2022 to be made available for service upon Mr Davis.
5. [5]
   Mr Davis did not respond, and on 26 May 2022 the applicants filed an application for default judgment. On 13 June 2022, the QCAT registry rejected the application on the basis that QCAT did not have jurisdiction to deal with the matter as it was not a valid application, being a minor civil dispute, as defined in Sch 3 to the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). The Registrar advised the applicants that if they disputed his decision, they could file a Form 40 application for miscellaneous matters. On 22 June 2022, the applicants did file a Form 40 application for miscellaneous matter challenging the registrar’s decision.
6. [6]
   On 11 August 2022, the Tribunal rejected that application. On 15 August 2022 a second Form 40 application for miscellaneous matters was filed for failing to refer the tribunal matter to a court. On 29 August 2022, Member Traves heard and determined on the papers (pursuant to s 32 of the QCAT Act) and dismissed the application for miscellaneous matters said to be filed on 27 June 2022, but in fact filed 22 June 2022.  On 29 August 2022, the Registrar provided the reasons and order to the applicants. Finally, on 12 September 2022, the Acting Registrar of QCAT rejected the applicants’ initial application and advised the applicants of their options to obtain legal advice for organisations including Law Right and Community Legal Centres.
7. [7]
   On 13 October 2022, the applicants filed in this court an application for statutory order of review of Member Traves’ decision, seeking an order that the decision be set aside pursuant to s 20(1) and (2) of the Judicial Review Act 1991 (Qld) (Judicial Review Act). Appropriately, the respondent did not seek to provide submissions, but rather the Attorney-General of Queensland obtained leave to act as intervenor and provided submissions.
8. [8]
   The intervenor concedes that s 13 of the Judicial Review Act is not enlivened as Member Traves’ decision cannot be appealed to the appeal tribunal of QCAT and that Member Traves’ decision is a decision to which Pt 3 of the Judicial Review Act applies, and is subject to qualifications that are mentioned below, that allows the applicants to apply for a statutory order for review.
9. [9]
   Section 156 of the QCAT Act provides:

156  Application of Judicial Review Act 1991

The Judicial Review Act 1991, parts 3 to 5 do not apply to a decision or to the conduct of the tribunal in a proceeding other than to the extent the decision or conduct is affected by jurisdictional error.

10. [10]
    In Symbolic Resources v Kingham [2020] QSC 193, Wilson J said:^[1]

3. “[135]
   The term ‘jurisdictional error’ necessarily connotes some mistake around a court’s or tribunal’s power affecting its proper functioning, either by it misapprehending or disregarding the nature or limits of its functions or powers or acting wholly outside that jurisdiction. Errors may extend to include instances where a tribunal acts in the absence of a jurisdictional fact, disregards a matter the legislation requires to be taken into account (but only as a condition of jurisdiction) or misconstrues the statute which gives it power so that it misconceives the nature of the function it is performing.

3. [136]
   In Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, Kiefel CJ, Gageler and Keane JJ set out the consequences of a decision beset by jurisdictional error:

“Jurisdictional error, in the most generic sense in which it has come to be used to describe an error in a statutory decision-making process, correspondingly refers to a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it. To describe a decision as “involving jurisdictional error” is to describe that decision as having been made outside jurisdiction. A decision made outside jurisdiction is not necessarily to be regarded as a “nullity”, in that it remains a decision in fact which may yet have some status in law. But a decision made outside jurisdiction is a decision in fact which is properly to be regarded for the purposes of the law pursuant to which it was purported to be made as “no decision at all”. To that extent, in traditional parlance, the decision is “invalid” or “void”.”

[footnotes omitted]

11. [11]
    In Reihana v Davern [2015] QCA 42, Holmes JA (as her Honour then was) with whom Gotterson JA and Jackson J agreed said:^[2]

3. “[3]
   Section 156 of the Queensland Civil and Administrative Tribunal Act 2009 excludes the application of Pt 3 of the Judicial Review Act to a decision or conduct of QCAT other than to the extent it is affected by jurisdictional error. Accordingly, since the primary judge found no jurisdictional error on the first respondent’s part, the application had inevitably to fail. His Honour noted that in any event it was brought out of time, some eight months after the QCAT hearing. In addition, he observed that the appellant had other avenues within QCAT to seek review of any error by the first respondent, although in the circumstances it was unlikely that he would have been successful.

[…]

3. [5]
   It may be accepted that QCAT has a statutory obligation to observe the rules of natural justice. A failure by it to do so is capable of amounting to jurisdictional error; as would be a refusal to exercise its statutory jurisdiction. Whether either of those actually occurred here turns on determination of precisely what the issues were before the first respondent, which in turn requires a close examination of: what was sought in the appellant’s application to QCAT; the result of an interlocutory application for interim relief; and what was canvassed at the hearing before the first respondent.

[…]

3. [24]
   Whether the hearing was properly characterised as substantive or for directions, the first respondent did not fail to perform any function required of him, nor to hear the appellant to the extent appropriate, given the limited matters he could address. The primary judge’s conclusion that no jurisdictional error was identified, so that the application must fail, was plainly correct. This appeal should be dismissed, with the appellant to pay the second respondent’s costs.”

12. [12]
    Mr Kerr, on behalf of the applicants, was referred to the definition of ‘minor civil dispute’ as defined in Sch 3 of the QCAT Act and to the reasons of Member Traves and was asked whether the applicants agreed that Member Traves was correct in finding that the claim as filed was not a minor civil dispute as defined in Sch 3 to the QCAT Act. After being given an adjournment to consider the applicants’ position and to attempt to frame an argument that the applicants’ claim was a minor civil dispute within Sch 3 of the QCAT Act, the applicants then conceded that Member Traves was correct in finding that their claim as brought was not a minor civil dispute, and accordingly QCAT did not have a jurisdiction.
13. [13]
    The applicants’ were than asked to attempt to identify the jurisdictional error that they alleged would found their right to judicial review under s 20 of the Judicial Review Act.
14. [14]
    The applicants then argued that the jurisdictional error was established by the tribunal failing to consider the first referral of 22 June 2022 but rather considering the second referral of 15 August 2022. The filing stamps on the exhibits are a little unclear as to whether the application was filed on 27 June 2022, as stated in the decision of Member Traves, or 22 June 2022 as appearing in exhibit MJ7 to the affidavit of Mathew James filed 2 December 2022. Nonetheless, as the second referral occurred on 15 August 2022, it is plain that the tribunal member considered the first application for miscellaneous matters, and also the original application filed in QCAT on 2 February 2022. I would conclude therefore, that whilst there may be an error in the date of the filing, there is no jurisdictional error committed by the Member so as to enliven s 20 of the Judicial Review Act and allow the applicants to succeed.
15. [15]
    The applicants’ other argument was that there was a jurisdictional error in the form of a denial of natural justice by Member Traves making a correct decision on the papers. The applicants’ submitted that, had they been given the opportunity to make submissions, they would have done so and sought a referral under s 52(2) of the QCAT Act referring the matter from QCAT to a court of competent jurisdiction. There are a number of difficulties with the position adopted by the applicants.
16. [16]
    The first is that s 32(2) of the QCAT Act allows decisions to be made upon the papers. The second is that on page one of the application for minor civil dispute filed 2 February 2022, the applicants agreed that the matter could be determined upon the papers. The third point is that if the applicants had wished to make submissions, the applicants had opportunity to do so in the application for a miscellaneous matters filed 22 (or 27) June 2022.
17. [17]
    I conclude that the applicants have not established a jurisdictional error. The application is therefore dismissed. The intervenor does not seek its costs and accordingly there will be no order as to costs.