Derrick v Mitchell

[2018] QCATA 145

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Derrick v Mitchell & Ors [2018] QCATA 145

PARTIES:

ROBERT CHARLES DERRICK
(applicant/appellant)

v

HAMISH MITCHELL
RUI GUAN
360 PROPERTY MANAGEMENT

(respondent)

APPLICATION NO/S:

APL005-18

ORIGINATING APPLICATION NO/S:

MCD T285/17

MATTER TYPE:

Appeals

DELIVERED ON:

18 September 2018

HEARING DATE:

22 August 2018

HEARD AT:

Brisbane

DECISION OF:

Justice Carmody

ORDERS:

1.   The Attorney-General is excused from further participation in the proceeding.

2.   The application for leave to appeal or appeal will be decided on the papers not before 30 October 2018 based on the submissions already filed by the parties. 

CATCHWORDS:

CONSTITUTIONAL LAW – where the respondents’ property agent brought an application in the tribunal against a former tenant on behalf of the co-lessors – where the address for service of the application was in Western Australia – whether QCAT is a court invested with federal diversity jurisdiction under the Constitution s 75(iv) and the Judiciary Act 1903 (Cth) s 39(2) to decide disputes between the residents of different states – where the Queensland position has been authoritatively settled by the Court of Appeal – where QCAT is a Chapter III court – where the Attorney-General is excused from further participation in the proceeding – where the tenancy dispute will be decided on the papers informed by the submissions already filed by the parties

Australian Constitution s 75(iv)
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 164

Burns v Corbett [2018] HCA 15
Johnson v Dibbin; Gatsby v Gatsby
[2018] NSWCATAP 45
Owen v Menzies (2013) 2 Qd R 327
Zistis v Zistis [2018] NSWSC 722

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondents:

Adele Crocker, 360 Property Management

Attorney-General of Queensland:

Mr AD Keyes, of Counsel

Mr NG Harris, Crown Law

REASONS FOR DECISION

1. In 2016 a company carrying on business as a property agent in Mackay successfully brought an application in the tribunal against a former tenant (now the applicant for leave to appeal) claiming compensation for damage to a residential rental property on behalf of the named lessor respondents who, presumably, also lived in Queensland. The applicant’s address for service was in Western Australia.

2. QCAT is a creature of statute. It can only validly resolve disputes if it has jurisdiction over both the subject matter and the parties. As with any inferior court, the tribunal’s adjudicative authority is not assumed but, rather, must appear on the face of the record. Judicial power that is not conferred by the QCAT Act or an enabling Act cannot be acquired by consent, submission, waiver, silence or merely for the sake of convenience.

3. While State legislatures may confer powers on a body that is not a court of a State to deal with other disputes within the limits of their respective subject matter, locality and monetary limits, resolving matters between the residents of different States within the integrated judicial system[1] of Australia (so-called diversity jurisdiction) is the exclusive province of those courts permitted to exercise federal judicial power by ss 38-43 of the Judiciary Act