Izard v Cairns Regional Council

[2010] QCAT 410

CITATION: Izard v Cairns Regional Council [2010] QCAT 410

PARTIES:	Mr William Izard
v
Cairns Regional Council

APPLICATION NUMBER:   GAR121-10  

MATTER TYPE: General administrative review matters

HEARING DATE:     25 August 2010

HEARD AT:  Brisbane

DECISION OF: Mr Jim Allen

DELIVERED ON: 25 August 2010

DELIVERED AT:      Brisbane

ORDERS MADE: Respondent’s application to strike out is dismissed.

CATCHWORDS :  Application to strike out; section 47 Queensland Civil and Administrative Tribunal Act 2009; Application for review under Local Government Act 1993

APPEARANCES and REPRESENTATION (if any):

The application was determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act

REASONS FOR DECISION

1. Mr Izard made an application to the Tribunal to review the decision of the Cairns Regional Council to continue charging a “Special levy “on his rates and for them to refuse to refund or provide a rates credit for inappropriate charging “special levy” fees.

2. The Cairns Regional Council has made an application to strike out Mr Izard’s application. The grounds of that application are that the only decision to which the applicant can be referring is the Respondent’s decision to levy a special charge over the applicant’s land pursuant to section 971 of the Local Government Act 1993. The respondent argues that the jurisdiction to review the decision must be contained in the enabling Act in accordance with section 17 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). This is on the basis that section 9 of the QCAT Act provides that the Tribunal has jurisdiction to deal with matters under the QCAT Act or an enabling Act. Jurisdiction conferred on the Tribunal is original jurisdiction, appeal jurisdiction or review jurisdiction. The Respondent submits that the subject matter of the Applicant’s application does not fall within the Tribunals original jurisdiction as it does not relate to a minor civil dispute and it is not an appeal against a decision of the Tribunal or another entity under an enabling Act. The Respondent submits that the Local Government Act 1993 does not confer any jurisdiction to review a decision under section 971 of that Act. The Respondent submits that as the Tribunal has no jurisdiction to hear the application the application is misconceived and should be struck out under section 47 of the QCAT Act.

3. The Respondent upon request of the Tribunal provided confirmation that two notices had issued to Mr Izard in respect of amendments to the Land record held by the Respondent.

4. The Applicant made submissions in reply to the Respondent’s application confirming that he considered the Tribunal had jurisdiction to review the decision of the respondent under section 971 of the Local Government Act 1993 or in the alternative that the application may be classed as a minor civil dispute.

CONCLUSION

1. The Tribunal may dismiss an application under section 47 of the QCAT Act if it is satisfied that the application is frivolous, vexatious or misconceived or lacking in substance or otherwise an abuse of process. If the Tribunal has no jurisdiction to hear an application as submitted by the Respondent that would be grounds for striking out the application based on it being misconceived or lacking in substance.

2. Upon consideration of section 971 the Local Government Act 1993 it is clear that that section does not create a right of review by the Tribunal of a decision by a local government to make and levy a special rate or charge on rateable land. That though is not the only source of review in respect of this matter. Once a local government has made a decision to make and levy a special rate or charge it is required in accordance with section 996 of the Local Government Act 1993 and regulation 37 of the Local Government Regulations 1994 to amend the land record in respect of the particular parcel of rateable land. A person dissatisfied with an amendment of a land record has a right of review to the Tribunal under section 999 of the Local Government Act 1993. The tribunal notes that prior to 1 December 2009 the right under section 999 was a right of appeal to a Magistrates Court.

3. The Tribunal is satisfied that it has jurisdiction to hear an application for review in respect of decisions made under section 996 of the Local Government Act 1993 and that the Applicants application can be characterised as an application to review a decision under that section in accordance with section 999 of the Local Government Act 1993. The Tribunal notes that the Respondent has confirmed that decisions to amend the land record have been made in respect of the Applicants land. The Tribunal does not consider that the Applicant’s application falls within the grounds set out in section 47 giving rise to a power to strike out the application and the application to strike out is dismissed.