Ferris v Queensland Building and Construction Commission - [2015] FCCA 176

FEDERAL CIRCUIT COURT OF AUSTRALIA

FERRIS v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

[2015] FCCA 176

Catchwords:
BANKRUTPCY – Bankruptcy notice – whether bankruptcy notice attached final judgment or order – whether final decision of QCAT a final judgment or order – whether there was a fatal defect in bankruptcy notice – no defect in notice – notice not defective.

Legislation:

Bankruptcy Act 1966 (Cth), ss.41, 306

Bankruptcy Regulations 1996 (Cth)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s.131

Uniform Civil Procedure Rules 1999 (Qld), rr.658, 661, 793, 978

Medical Board of Australia v Judge Horneman-Wren & Leggett [2013] QSC 339
Owen v Menzies [2013] 2 Qd R 327

Applicant:

PAUL FERRIS

Respondent:

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

File Number:

BRG 846 of 2014

Judgment of:

Judge Jarrett

Hearing date:

24 November 2014

Date of Last Submission:

24 November 2014

Delivered at:

Brisbane

Delivered on:

30 January 2015

REPRESENTATION

Counsel for the Applicant:

Mr Fisher

Solicitors for the Applicant:

Romans & Romans Lawyers

Counsel for the Respondent:

Mr Looney QC

Solicitors for the Respondent:

Rostron Carlyle

ORDERS

The costs reserved by order of Registrar Lynch on 25 September, 2014 be costs in the cause;
The application filed on 22 September, 2014 be dismissed;
The applicant pay the respondent’s costs of and incidental to the application to be taxed and paid in accordance with the Federal Circuit Court (Bankruptcy) Rules 2006.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 846 of 2014

PAUL FERRIS

Applicant

And

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

Respondent

REASONS FOR JUDGMENT

By his application filed on 22 September, 2014, the applicant seeks an order that the bankruptcy notice bearing number BN 173964 issued on 21 August, 2014 against him be set aside. Further, he seeks an order for his costs of the application against the respondent.
The respondent, the issuer of the bankruptcy notice, opposes the application. In the event that its opposition to the application is successful, the respondent seeks an order for costs of the application against the applicant.
These reasons for judgment deal with two matters. The first is the application to set aside the bankruptcy notice and any consequential costs orders. The second is a question of costs concerning the adjournment of this application on the day the application came before a registrar on 25 September, 2014. Those costs were reserved.
In broad terms, the applicant applies for the setting aside of the bankruptcy notice on three grounds. First, he claims that the bankruptcy notice has not been properly served upon him. Secondly, he claims that the bankruptcy notice is irregular and the irregularity is not capable of remedy. Thirdly, he argues that the respondent does not have a final judgment or a final order against the applicant for the purposes of ss.40(1)(g) and 41 of the Bankruptcy Act1966. The second and third grounds are related.

Background

On 19 September, 2013 the Queensland Civil and Administrative Tribunal made a decision that certain costs to be paid to the Queensland Building…

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.

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Details

Case: [2015] FCCA 176
Decision Date: 30 January 2015

CaseChat Overview and Summary

This matter concerned an application before Judge Jarrett in the Supreme Court of Queensland. The applicant, Ferris, sought to rely on a decision of the Queensland Civil and Administrative Tribunal (QCAT) for the purposes of bankruptcy proceedings. The central dispute revolved around whether a final decision of QCAT constituted a "judgment" or "order" for the purposes of sections 40(1)(g) and 41 of the *Bankruptcy Act 1966* (Cth).

The court was required to determine whether a final decision of QCAT was a judgment or order of a judicial body for the purposes of the *Bankruptcy Act*. This question arose in circumstances where the parties had focused on section 131 of the *Queensland Civil and Administrative Tribunal Act 2009* (Qld), which provides a mechanism for enforcing monetary decisions of QCAT by filing them in a court of competent jurisdiction. However, the court considered this procedural aspect to be a distraction from the more fundamental issue of QCAT's status.

Judge Jarrett reasoned that QCAT, despite its name, is a court. This conclusion was supported by section 164(1) of the *QCAT Act*, which designates QCAT as a "court of record". The court referred to *Owen v Menzies* [2013] 2 Qd R 327, where the Queensland Court of Appeal held that QCAT is a State court capable of exercising federal power. The Court of Appeal identified several characteristics of QCAT supporting this view, including its status as a court of record, its function of making binding decisions on controversies, its implied obligation to decide according to parties' rights, and its requirement to act independently. The court also noted that the inability of QCAT to enforce its own decisions did not preclude it from being considered a court. Furthermore, in *Medical Board of Australia v Judge Horneman-Wren & Leggett* [2013] QSC 339, Dalton J recognised the judicial character of QCAT decisions.

Consequently, Judge Jarrett concluded that a final decision of QCAT is a judgment or order for the purposes of sections 40(1)(g) and 41 of the *Bankruptcy Act*. The court did not need to determine whether it was specifically a judgment or an order, only that it met the threshold requirement.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

As to the requirement that the judgment or order be one of a judicial body, the parties seemed to have proceeded on the basis that the final decision of QCAT was not a judicial decision. I make that assumption because part of the argument in this case focussed upon s.131 of the Queensland Civil and Administrative Tribunal Act2009 (Qld) and what was said to be the effect of that section. Section 131 permits enforcement of a final decision of QCAT that is a monetary decision by permitting the filing in the registry of a court of competent jurisdiction a certified true copy of the decision sought to be enforced. Section 131 is in the following terms:131 Monetary decisions(1) This section applies to a final decision of the tribunal in a proceeding if it is a monetary decision.(2) A person may enforce the final decision by filing in the registry of a court of competent jurisdiction—(a) a copy of the decision that the principal registrar has certified to be a true copy; and (b) the person’s affidavit about the amount not paid under the decision.(3) No charge may be made for filing a copy of a decision or an affidavit under this section.(4) On filing the documents mentioned in subsection (2) in the registry of a court, the final decision is taken to be an order of the court in which it is filed and may be enforced accordingly. The focus in this case on s.131 of the Act has been apt to distract from the more important question, namely whether a final decision of QCAT is, of itself, a final judgment or final order for the purposes of ss.40(1)(g) and 41 of the Bankruptcy Act. In my view they are either a final judgment or final order for the purposes of ss.40(1)(g) and 41 of the Bankruptcy Act. I do not need to decide which. The Queensland Civil and Administrative Tribunal is, despite its name, a court: s.164(1) of the QCAT Act. In Owen v Menzies [2013] 2 Qd R 327 the Court of Appeal held that QCAT is a State court capable of exercising federal power for the purposes of Chapter III of The Constitution. De Jersey CJ, with whom Muir JA agreed, noted the following characteristics of QCAT that led him to that conclusion:a)QCAT is a “court of record” (s.164(1) of the QCAT Act); b)QCAT decides controversies between parties by making binding and authoritative decisions;c)QCAT has an implied obligation to make decisions according to the parties’ rights and obligations; andd)QCAT must act independently (s.162 of the QCAT Act). President McMurdo reached the same conclusion and referred to QCAT as an “inferior court of summary jurisdiction”. None of the members of the Court considered the fact that QCAT could not enforce its own decisions meant that it was not a court. In Medical Board of Australia v Judge Horneman-Wren & Leggett [2013] QSC 339, Dalton J recognised the judicial nature of QCAT and the orders made by its members. In that case, her Honour was asked to determine an application pursuant to s.26(1)(b) of the Judicial Review Act1991(Qld) to extend time in which to bring a proceeding for a statutory order for review. The purpose of the proposed proceedings was to challenge a decision of a member of QCAT refusing the applicant for the extension of time leave to add a new ground to a complaint that it was prosecuting against the respondent Leggett in QCAT. Her Honour dismissed the application on two bases, one of which was that: “It is clear that the decision of the Deputy President [of QCAT] which it is sought to challenge is of a judicial character.” (at [10]).

Ratio Decidendi

Legal Principle Established

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