Gilmour v Director General of Queensland Department of Community Safety

[2013] QCAT 622

CITATION: Gilmour v Director General of Queensland Department of Community Safety [2013] QCAT 622

PARTIES:	Mr Edward John Gilmour (Applicant)
V
Director General of Queensland Department of Community Safety (Respondent)

APPLICATION NUMBER: GAR323-13

MATTER TYPE: General administrative review matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member O’Callaghan

DELIVERED ON: 17 October 2013

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The Registrar is directed to reject the application to stay a decision filed on 12 September 2013.

CATCHWORDS:

Review of Principal Registrars decision to reject application – where application for a stay should be rejected because it did not comply with the QCAT Act, an enabling Act or the Rules

Queensland Civil and Administrative Tribunal Act 2009 s 35(3)(4)(6)(8)

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. On 12 September 2013 Mr Gilmour filed an application to stay a decision.  He sought an order from the Tribunal staying a decision of the Director General, Department of Community Safety, Emergency Services suspending him as an SES volunteer. 

2. The Registrar (as a delegate of the Principal Registrar) of QCAT wrote to Mr Gilmour on 19 September 2013 advising that he had decided to reject the application for a stay pursuant to section 35(3) of the QCAT Act. Section 35(3) allows the Principle Registrar to reject an application if:

   a)    The application or referral is made by a person who is not authorised to make it:

   b) The application or referral is made after the expiry of the period within which it is required to be made under the QCAT Act: or

   c) The application does not otherwise comply with the QCAT Act, an enabling Act or the Rules.

3. The Registrar determined that the application to stay should be rejected because it did not comply with the QCAT Act or an enabling Act or the Rules.

4. Mr Gilmour as he was entitled to do so[1] asked the Registrar to refer his decision to refuse to accept the application to the Tribunal for review.

   [1] QCAT Act s 35(4).

5. Upon review I made the decision on 17 October 2013 that the Registrar be directed to reject the application. 

6. Mr Gilmour has asked for reasons for that decision.  These are my reasons.

7. The Registrar had advised Mr Gilmour that the application was rejected on 2 basis:

   (i)It was not possible to apply for a stay of a decision without applying to review that decision (the substantive application); and

   (ii)The decision of the Department was not a reviewable decision.

8. The Registrar’s decision was correct.

9. QCAT only has jurisdiction to review decisions where an enabling Act provides for the review.[2]  Neither Mr Gilmour nor the Tribunal were able to identify any enabling Act which provided for a right to review the decision to suspend him as a volunteer at the SES.

   [2] QCAT Act s 17(1).

10. Further, and in any event, he had not filed a review application.  He had only filed a stay application.

11. Under the QCAT Act, the Tribunal can only stay the operation of a reviewable decision if an application to review the decision has been filed.[3] 

    [3] QCAT Act s 22(3).

12. In all of these circumstances the correct decision was to reject Mr Gilmour’s stay application and as such I direct the Registrar to do so.