AB v CD

Case [2020] QCAT 295 14 July 2020

Type to search within this case.

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

AB v CD [2020] QCAT 295

PARTIES: AB

(applicant)

v

CD

(respondent)

APPLICATION NO/S:

51553/19

MATTER TYPE:

Other minor civil dispute matters

DELIVERED ON:

14 July 2020

HEARING DATE:

15 April 2020

HEARD AT:

Southport

DECISION OF:

Adjudicator Alan Walsh

ORDERS:
1.   Collection & Recovery Options Pty Ltd has leave retrospectively to represent the Applicant.

2.   A non-publication order is made with respect to the identity and street address of the Applicant and Respondent which shall not be published except to the parties and Collection & Recovery Options Pty Ltd.

3.   Nothing in Order 2 prevents the publication and reporting of this decision.

4.   The Request for a Default Decision is refused.

5.   The Application for minor civil dispute – Minor Debt filed at Southport on 14 November 2019 is dismissed for lack of jurisdiction.

CATCHWORDS:
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – minor civil dispute – where collection agent for applicant filed application for minor debt at Southport Registry of Tribunal - where collection agent not a party to the proceeding – where collection agent did not apply for leave to represent applicant – whether leave should be granted

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – minor debt claim – where applicant claimed child support payment pursuant to federal legislation – where child support amount deemed owing – where neither applicant nor respondent resident in Queensland – where respondent did not file a Response – whether applicant entitled to a default decision

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – minor debt claim – jurisdiction – where no part of applicant’s cause of action arose within Queensland – where collection agent’s address the only connection with Queensland – whether the Queensland Civil and Administrative Tribunal a court or court of summary jurisdiction for purposes of federal legislation providing for collection and recovery of child support money owing – whether the Tribunal has jurisdiction

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – minor debt claim – exercise of jurisdiction – whether the Tribunal ought to exercise jurisdiction

Australian Constitution, Chapter III, s 109

Acts Interpretation Act 1901 (Cth), s 2B, s 15AB, s 15C
Acts Interpretation Act 1954 (Qld), Schedule 1
Child Support (Registration and Collection) Act 1988 (Cth), s 3, s 4, s 104, s 113, s 113A, s 116
Human Rights Act 2019 (Qld), s 25
Judiciary Act 1903 (Cth), s 32, s 39
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 6, s 7, s 8, s 9, s 10, s 15, s 16, s 32, s 43, s 164
Service and Execution of Process Act 1992 (Cth), s 3,
s 47, s 51
Service and Execution of Process Regulations 2018 (Cth),

s 6

Attorney General for New South Wales v Gatsby [2018] NSWCA 254

Attorney General (SA) v Raschke (2019) 133 SASR 215
Austin v Commonwealth of Australia (2003) 215 CLR…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AB v CD

Details

AGLC: AB v CD [2020] QCAT 295
Case: [2020] QCAT 295
Decision Date: 14 July 2020

CaseChat Overview and Summary

AB, the applicant, filed an application for a minor debt related to child support against CD, the respondent, at the Southport Registry of the Queensland Civil and Administrative Tribunal (QCAT). The collection agent for AB, Collection & Recovery Options Pty Ltd, filed the application without being a party to the proceeding or applying for leave to represent AB. CD did not file a Response, and the application was for a debt that neither party resided in Queensland. The central legal issues were whether leave should be granted to the collection agent to represent AB, if AB was entitled to a default decision, and whether QCAT had jurisdiction over the matter.

The court determined that leave should be granted to the collection agent to represent AB retrospectively, and a non-publication order was made regarding the personal details of AB and CD. However, the request for a default decision was refused, and the application was dismissed for lack of jurisdiction. The court found that the application did not meet the jurisdictional criteria as no part of AB's cause of action arose within Queensland, and the only connection to Queensland was the collection agent’s address. Furthermore, the court held that QCAT was not a court or court of summary jurisdiction under the federal legislation governing child support, thus lacking the authority to exercise jurisdiction over the matter.

In summary, the court dismissed the application for minor civil dispute for lack of jurisdiction, granted retrospective leave to the collection agent, and made a non-publication order concerning the personal details of the parties involved. The request for a default decision was denied, and the application filed on 14 November 2019 was dismissed.

Orders

Orders of the court

1. Collection & Recovery Options Pty Ltd has leave retrospectively to represent the Applicant.

2. A non-publication order is made with respect to the identity and street address of the Applicant and Respondent which shall not be published except to the parties and Collection & Recovery Options Pty Ltd.

3. Nothing in Order 2 prevents the publication and reporting of this decision.

4. The Request for a Default Decision is refused.

5. The Application for minor civil dispute – Minor Debt filed at Southport on 14 November 2019 is dismissed for lack of jurisdiction.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

AB v CD [2020] QCAT 295

Most Recent Citation

Helyar v Civil and Property Development Consulting Pty Ltd (in liquidation) [2020] QCAT 465

Cases Citing This Decision

Joubert v Fleger & Fleger [2023] QCAT 382
Citation 1 (Para 3)

…valent of those in equity at common law, the Tribunal has no jurisdiction in equity even when constituted by a Judicial Member.[2] [1]See AB v CD [2020] QCAT 295, [38], [46] – [47], [54], [61] – [72]. [2]See the analysis of (then) President of the Tribunal, Justice Alan Wilson, regarding limitation of the Tribunal…
Waller Family Lawyers Pty Ltd v AB [2022] QCAT 362
Citation 2 (Para 2)

…and defences are often broadened in submissions to which regard must also be had in adjudicating disputes. [3]QCAT Act, s. 164(1). [4]See AB v CD [2020] QCAT 295 at [38] to [75].…
Spedding Estates Pty Ltd ATF The Spedding Family Trust v Cotterill & Downie [2022] QCATA 3
Citation 3 (Para 24)

…Although in AB v CD [2020] QCAT 295 Adjudicator Alan Walsh decided that QCAT was not a court of a State at least for the purposes of the Child Support (Registration and Collection) Act 1988 (Cth) and perhaps generally,[19] this was without citing Derrick and its effect on this question. [19][38], [72].…
Helyar v Civil and Property Development Consulting Pty Ltd (in liquidation) [2020] QCAT 465
Citation 4 (Para 4)

…and equitable. [83]Per Wilson J in Batwing Resorts Pty Ltd v Body Corporate for Liberty on Tedder CTS 27241 [2011] QCAT 277 at [38]. [84]See AB V CD [2020] QCAT 295 at [38] to [76].…

See all citing cases →

Cases Cited

Selinda Maduranjaan Perera Gardi Hewapanna Meringnage v Interstate Enterprises Pty Ltd T/A Tecside Group and Ors (according to the schedule attached) and Attorney-General Of Victoria [2020] VSCA 30
Citation 1 (Para 25)

…In Meringnage v Interstate Enterprises Pty Ltd & Ors [2020] VSCA 30 ( Meringnage) the Victorian Supreme Court of Appeal found that that VCAT is not a State Court and that it therefore lacks federal diversity jurisdiction enabling it to decide disputes between residents of other States.…
Attorney-General for the State of South Australia v Raschke [2019] SASCFC 83
Citation 2 (Para 31)

…] SACAT 19 (Hughes P) that it is not a court of the State of South Australia. The parties in the subsequent appeal in Attorney General (SA) v Raschke (2019) 133 SASR 215 (218-19, [7] – [9] (Kourakis CJ)) accepted the Appeal Panel’s finding in that regard.…
Attorney General for New South Wales v Gatsby [2018] NSWCA 254
Citation 3 (Para 29)

…State capable of exercising federal diversity jurisdiction, but that decision was reversed on appeal in Attorney General for New South Wales v Gatsby [2018] NSWCA 254 (the Gatsby appeal).…
Brayalei Pty Ltd v ABC Scaffolds Pty Ltd [2018] QCAT 299
Citation 4 (Para 38)

…s Australian Agent, Australian Commerce Systems Pty Ltd v Ozepost Pty Ltd [2015] QCAT 463 ( Parcelvalue) and Brayalei Pty Ltd v ABC Scaffolds Pty Ltd [2018] QCAT 299 (Brayalei) .…
Burns v Corbett [2018] HCA 15
Citation 5 (Para 27)

…In Burns v Corbett [2018] HCA 15 ( Burns ), a majority of the High Court of Australia (Kiefel CJ, Bell, Gageler and Keane JJ) held that Chapter III of the Commonwealth Constitution impliedly limits State legislative power and that State Parliaments have no power to confer judicial power with respect to matters i…
Fisher v Wenzel & Anor [2016] QCAT 456
Citation 6 (Para 1)

…reature of Queensland statute and of limited jurisdiction. It is not a Court of inherent or general jurisdiction. As I said in Fisher v Wenzel & Anor [2016] QCAT 456 at [41] on High Court authority,[2] a Tribunal order made beyond jurisdiction is a complete nullity and binds no-one.[3] [2] Pelechowski v The Regist…
Parcelvalue SA by its Australian Agent, Australian Commerce Systems Pty Ltd v Ozepost Pty Ltd [2015] QCAT 463
Citation 7 (Para 38)

…the parties reside in Queensland. See, in that regard, Parcelvalue SA by its Australian Agent, Australian Commerce Systems Pty Ltd v Ozepost Pty Ltd [2015] QCAT 463 ( Parcelvalue) and Brayalei Pty Ltd v ABC Scaffolds Pty Ltd [2018] QCAT 299 (Brayalei) .…
Li v Medical Board of Australia (No 1) [2013] QCAT 595
Citation 8 (Para 14)

…Deputy President Horneman-Wren SC DCJ (as he then was) in Li v Medical Board of Australia (No 1) [2013] QCAT 595 said at [12] that in his view the Tribunal is a court for SEPA purposes but he went on to say at [14] that if he were wrong in that conclusion then it would be a tribunal as defined in that Act.…
K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4
Citation 9 (Para 23)

…In that regard, Chief Justice de Jersey (as he then was) said at [11]: As observed by Kirby J in K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501, 562, while not conclusive, that designation may constitute a “very strong consideration” in determining the true nature of the body.…
Austin v Commonwealth [2003] HCA 3
Citation 10 (Para 7)

…In Austin v Commonwealth of Australia (2003) 215 CLR 185, the High Court unanimously concluded that a Master of the Supreme Court of Victoria was a “judge of a court of a State” within the meaning of section 7 of the same Assessment Act.…
Clark v Commissioner of Taxation [2008] FCAFC 51
Citation 11 (Para 6)

…tions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997 (Cth). See Clark v Commissioner of Taxation [2008] FCAFC 51 (3 April 2008).…
[2018] NSWCATAP 45 [2018] NSWCATAP 45
Citation 12 (Para 29)

…On the other hand, in Johnson v Dibbin; Gatsby v Gatsby [2018] NSWCATAP 45 ( Gatsby) NCAT decided that it was a court of a State capable of exercising federal diversity jurisdiction, but that decision was reversed on appeal in Attorney General for New South Wales v Gatsby [2018] NSWCA 254 (the Gatsby appeal).…
Raschke v Firinauskas [2018] SACAT 19
Citation 13 (Para 31)

…The South Australian Civil and Administrative Tribunal has also decided in Raschke v Firinauskas [2018] SACAT 19 (Hughes P) that it is not a court of the State of South Australia. The parties in the subsequent appeal in Attorney General (SA) v Raschke (2019) 133 SASR 215 (218-19, [7] – [9] (Kourakis CJ)) accepted…

Legislation Cited

Queensland Civil and Administrative Tribunal Act 2009 (Qld) 3(a), 6
3 mentions (from Para 1)
Acts Interpretation Act 1901 (Cth) 2B
2 mentions (from Para 1)
Child Support (Registration and Collection) Act 1988 (Cth) 3
2 mentions (from Para 1)
Human Rights Act 2019 (Qld) 25
2 mentions (from Para 2)
Judiciary Act 1903 (Cth) 32
2 mentions (from Para 1)
Service and Execution of Process Act 1992 (Cth) 3
2 mentions (from Para 2)
Service and Execution of Process Regulations 2018 (Cth) 6
2 mentions (from Para 1)
Acts Interpretation Act 1954 (Qld)
1 mention (from Para 17)
Constitution of Australia (Cth)
1 mention (from Para 27)
Service and Execution of Process Act 1901 (Cth)
1 mention (from Para 10)
Victorian Civil and Administrative Tribunal Act 1998 (Vic)
1 mention (from Para 26)

CITATION:	AB v CD [2020] QCAT 295
PARTIES:	AB
(applicant)
v
CD
(respondent)
APPLICATION NO/S:	51553/19
MATTER TYPE:	Other minor civil dispute matters
DELIVERED ON:	14 July 2020
HEARING DATE:	15 April 2020
HEARD AT:	Southport
DECISION OF:	Adjudicator Alan Walsh
ORDERS:	1. Collection & Recovery Options Pty Ltd has leave retrospectively to represent the Applicant. 2. A non-publication order is made with respect to the identity and street address of the Applicant and Respondent which shall not be published except to the parties and Collection & Recovery Options Pty Ltd. 3. Nothing in Order 2 prevents the publication and reporting of this decision. 4. The Request for a Default Decision is refused. 5. The Application for minor civil dispute – Minor Debt filed at Southport on 14 November 2019 is dismissed for lack of jurisdiction.
CATCHWORDS:	ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – minor civil dispute – where collection agent for applicant filed application for minor debt at Southport Registry of Tribunal - where collection agent not a party to the proceeding – where collection agent did not apply for leave to represent applicant – whether leave should be granted ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – minor debt claim – where applicant claimed child support payment pursuant to federal legislation – where child support amount deemed owing – where neither applicant nor respondent resident in Queensland – where respondent did not file a Response – whether applicant entitled to a default decision ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – minor debt claim – jurisdiction – where no part of applicant’s cause of action arose within Queensland – where collection agent’s address the only connection with Queensland – whether the Queensland Civil and Administrative Tribunal a court or court of summary jurisdiction for purposes of federal legislation providing for collection and recovery of child support money owing – whether the Tribunal has jurisdiction ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – minor debt claim – exercise of jurisdiction – whether the Tribunal ought to exercise jurisdiction Australian Constitution, Chapter III, s 109 Acts Interpretation Act 1901 (Cth), s 2B, s 15AB, s 15C Acts Interpretation Act 1954 (Qld), Schedule 1 Child Support (Registration and Collection) Act 1988 (Cth), s 3, s 4, s 104, s 113, s 113A, s 116 Human Rights Act 2019 (Qld), s 25 Judiciary Act 1903 (Cth), s 32, s 39 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 6, s 7, s 8, s 9, s 10, s 15, s 16, s 32, s 43, s 164 Service and Execution of Process Act 1992 (Cth), s 3, s 47, s 51 Service and Execution of Process Regulations 2018 (Cth), s 6 Attorney General for New South Wales v Gatsby [2018] NSWCA 254 Attorney General (SA) v Raschke (2019) 133 SASR 215 Austin v Commonwealth of Australia (2003) 215 CLR…