ACHCHIGE v Adjudicator Scott-Mackenzie

[2023] QCA 61

[2023] QCA 61

COURT OF APPEAL

MULLINS P

Appeal No 14883 of 2022
QCAT No 2473 of 2022

NIHAL KANKAMALAGE  Appellants

CHANDANI MANNAWA ACHCHIGE

v

ADJUDICATOR SCOTT-MACKENZIE  Respondent

BRISBANE

WEDNESDAY, 5 APRIL 2023

JUDGMENT

1. MULLINS P: The appellants were parties to a tenancy dispute in the Queensland Civil and Administrative Tribunal (claim 2473/22) that was being conducted against them by a real estate agent. They had been renting the subject property for over six years and wanted maintenance issues addressed before they agreed to an increase in the rent and to sign a new tenancy agreement. The matter was heard and decided by an adjudicator, Mr Scott-Mackenzie. An adjudicator has jurisdiction under s 195 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act) to hear and decide a minor civil dispute and a minor civil dispute includes a tenancy matter.

2. The appellants are unhappy with the adjudicator’s decision.  The appellants filed a notice of appeal in the Court of Appeal on 29 November 2022 against the adjudicator’s decision given on 28 October 2022.  Although the notice of appeal identifies Damien Plumpton as the plaintiff in QCAT, the respondent named in the notice of appeal is the adjudicator named as Mr Mckenzie.

3. The registrar of the court has raised in emails with the appellants that the correct respondent should be Mr Plumpton and not the adjudicator.  The registrar of the court has also raised with the appellants whether their appeal should have been filed in the appeal tribunal of QCAT.  The appellants’ email response was that QCAT did not look at their case genuinely and they had lost confidence in QCAT and did not want any further dealing with QCAT and were therefore pursuing the appeal in the Court of Appeal.

4. The appellants were given notice by email that their appeal would be listed for a show cause hearing, so that they could show cause why their appeal should not be struck out as an abuse of process.  The appellants’ response was that they did not understand what such a hearing would be about and therefore would not appear in the court.  There was no appearance by them when their matter was called for hearing today.  The Registrar had notified them by email of today’s hearing date.

5. The appellants’ appeal rights are governed by the QCAT Act. Under s 142(1) of the QCAT Act, their right to appeal is to the QCAT appeal tribunal. As the adjudicator’s decision was in a proceeding for a minor civil dispute, the appellants also require the leave of the appeal tribunal pursuant to s 142(3) of the QCAT Act to appeal the adjudicator’s decision to the appeal tribunal. Division 2 of part 8 of chapter 2 of the QCAT Act regulates appeals to the Court of Appeal from decisions of QCAT and the appeal tribunal. The QCAT Act does not permit the appellants to appeal the adjudicator’s decision on a minor civil dispute direct to the Court of Appeal.

6. There is no point in the appellants’ appeal to this court continuing as an appeal as the Court of Appeal has no jurisdiction to hear the appeal.  That is why the appellants were asked to show cause why their appeal should not be struck out as an abuse of process.  An abuse of process is one way of describing the use of a procedure in a court for a purpose for which it cannot be used.  Another way of describing the appellants’ appeal is that it has been brought in a court without jurisdiction to hear the appeal and is therefore incompetent.

7. The order which I make is: Notice of appeal filed on 29 November 2022 is struck out for lack of jurisdiction.