Jay v Department of Housing and Public Works (No 1)

[2024] QCATA 73

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Jay v Department of Housing and Public Works (No 1) [2024] QCATA 73

PARTIES:

KEVIN MAURICE JAY

(applicant)

v

DEPARTMENT OF HOUSING AND PUBLIC WORKS

(respondent)

APPLICATION NO/S:

APL069-24

MATTER TYPE:

Appeals

DELIVERED ON:

9 April 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Mellifont

ORDERS:

1. The matter remains listed for a directions hearing at the QEII Courts of Law on 14 May 2024, but rescheduled for 11:00 am. At that time, I will hear argument as to whether Mr Jay’s appeal, or part of it, should be struck out pursuant to section 47 QCAT Act.

2. Mr Jay is to file any submissions and any material he wishes to rely upon in respect of whether Mr Jay’s appeal, or part of it, should be struck out, pursuant to section 47 QCAT Act, and to serve same on the Department of Housing and Public Works by 4:00 pm on 26 April 2024, together with copies of any case law or legislation relied on upon.

3.       The Department of Housing and Public works is to file any submissions and material it wishes to rely upon in response to the material referred to in direction 2, and to serve same on Mr Jay, by 4:00pm on 10 May 2024, together with copies of any case law or legislation relied on upon.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – Whether the appellant has raised a question of law in the appeal application – whether some or all of the orders sought in the appeal application are within power of the Tribunal

Queensland Civil and Administrative Tribunal Act2009 (Qld) ss 3, 28, 29, 47

Information Privacy Act 2009 (Qld) s 132

B47 and Department of Housing, Local Government, Planning and Public Works [2024] QICmr 9

O’Conner v Department of Child Safety, Seniors and Disability Services [2024] QCATA 34
Underwood v Metro North Hospital and Health Service & Anor [2022] QCATA 124

Stiles v Information Commissioner [2021] QCATA 152 Walker Group Holdings Pty Ltd v Queensland Information Commissioner (No 2) [2021] QCATA 84.

APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

1. On or about 11 March 2024, Mr Jay filed an appeal in the Queensland Civil and Administrative tribunal (‘QCAT’) against a decision on the Information Commissioner made on the 22 February 2024, in respect of case number 317481.  He attached, to his application, a copy of the decision relating to application 317481:  B47 and Department of Housing, Local Government Planning and Public Works [2024] QICmr 9. That decision was a decision of the Information Commissioner on external review from a decision of the Department of Housing, Local Government Planning and Public Works (‘the Department’). Mr Jay was a participant in that external review.

   Appeals to QCATA from external review decisions by the Information Commissioner

2. Section 132(1) of the Information Privacy Act 2009 (‘IP Act’) provides that a participant in an external review may appeal to the Appeal Tribunal of QCAT (‘QCATA’) against a decision of the Information Commissioner on the external review.

3. Section 132(2) of the IP Act provides that the appeal may only be on a question of law.

4. Section 132(5) provides that the appeal may only be by way of a rehearing.

   Upcoming directions hearing

5. On 18 March 2024, I made an order listing the matter for directions hearing on 14 March 2024. In appeals from external review decisions of the Information Commissioner, it is common for me to list the matter for directions hearing shortly after the application, with the general purpose in mind of making directions for the progress of the matter. 

6. An order of that hearing has been sent to Mr Jay and the Department.

   Preliminary issues which arise

7. Having now reviewed Mr Jay’s notice of appeal in some detail, and having regard to the objects of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), (‘QCAT Act’) set out in section 3 of the QCAT Act, and to sections 28, 29 and 47 of the QCAT Act, I consider that it is appropriate for me to receive submissions, as soon as practicable, about whether the appeal should dismissed or struck out, in part or in full. To that end, I shall make directions as to the filing of submissions and material in respect of that issue, and will hear any further argument from the parties on 14 May 2024. Below, I have set out more detail as to why I consider that these preliminary issues arise.

Mr Jay’s grounds of appeal as set out in his application to appeal

1. The grounds of appeal in the application are set out under the heading ‘Grounds of appeal’ as follows:  

   The decision makers had to breach multiple indictable offences to maintain this work order created by Queensland fire and emergency services placed a pond the Brisbane metro call centre for housing system by themselves and or by a department of housing and public works official after the fact.

   ·The matter was prejudicial and bias due to the removal of timestamps with fraudulent documents and reports being made and presented for a beneficial outcome to the department of housing and public works or the government of the day,

   ·The alleged breaches relates to AS3786, workplace laws, federal payroll laws and the following acts and codes.

   Section 40 of the IP Act,

   Section 13 of the IP Act and Section 12 of the RTI Act.

   Section 1.2 of the IP Act.

   Section 67 of the IP Act.

   Sections a7(3Xe) and 52(1 )(a) of the RTI Act.

   Sections a7(3Xe) and 52(1 Xa) of the RTI Act.

   Reference material: CRIMINAL CODE 1899 - SECr430 and SECr488 Crime and Corruption Act 2001 Division 1,2, 3 and s. Section 63 of the Summary Offences Act 1955. A person who commits the offence of improper use of emergency call service is liable to imprisonment for up to three years and/or a fine of 575,500. Building Fire Safety Regulation 2008 Division L70 Part 7 Miscellaneous. CRIMINAL CODE 1899 - SEC f 469,462, 474.18,408E and 13. Breaches of (AS) 3786. Section 123 Of the Criminal Code Act 1899

   ·It also violates my rights to unfretted access, security and enjoyment of my home, my timeline and true location.”

Whether the application to appeal has identified a question of law

1. In O’Conner v Department of Child Safety, Seniors and Disability Services [2024] QCATA 34, Judicial Member D J McGill SC stated that:

   [2] … The review by the Commissioner is a full merits review, but there is no appeal to the Tribunal from the decision of the Commissioner on a question of fact, or on a question of mixed fact and law. It follows that the appeal is in the nature of judicial review. The appeal must be “on” a question of law, not just involve a question of law. If the appellant does show an error of law by the Commissioner, the remedy is to refer the matter back to the Commissioner, unless as a matter of law only one decision is open.

   [5] …In principle when an appeal is only on a question of law, the appellant should identify the question or questions of law the subject of the appeal. Where the appellant is a litigant in person, it is unrealistic to expect her to be able to formulate properly a question of law, but the Tribunal cannot give a party legal advice. It is sometimes possible to identify a question of law in the grounds raised by an appellant litigant in person, or in submissions in support of the appeal, but I consider it is not open for the Tribunal to identify some other question of law, and decide the appeal on that basis, particularly if the ground has not been dealt with by the respondent in submissions.

   [8] What matters in this appeal is whether the Commissioner has complied with the provisions of the IP Act, not whether the respondent has complied with the provisions of some other Act.

2. It is difficult to see how these grounds of appeal disclose a question of law for QCATA decision, either expressly or by implication from other material contained within the application. I wish to receive submissions from the parties as to whether or not there is a question (or questions) of law, and whether, therefore, the power under section 47 to dismiss or strike out the appeal should be exercised. I have made directions accordingly.

Whether QCATA has power to make the orders sought by Mr Jay

1. The orders sought by the appellant in the application are set out under the heading ‘briefly describe what you want to happen’:

   To be given the work order with the agreed amendment attachment to it that restores my, FIRE2U techs which will also corrects the incident, parties locations and timelines which are evidence based that displays the actions of Mr J J N / QFEF as to make this work order compliant to the required Australian standard (AS3786) under the law. This would clear any obstacles for my senior's health card application that I am not in department of housing accommodation and never have been at any time?

   (1)    For the Ombudsman allowed noncompliant system is to be changed to the required Australian installation standard for these smoke, heat detectors connected back to the fire alarm which then includes the booster pumps with low fuel alarms and ETC all being back to base as submitted and having in part accepted by the Ombudsman as being completed. (PLEASE note this would insure the safety of these housing tenants and I would never ever have to interact with Mr J J N and or Mr RTC QFES in an attempt to intimidate, entrap and or harass!

   (2)    RTC breached his employment contract by voicing his concerns, which I believe the Ombudsman is aware that for years that the QFES have complained about building access being restricted by housing, with if they act professionally that they are than abused by housing about the damage that is done while trying to save lives

   (3)    QCAT will review documents and make recommendation to the other parties?

   (4)    That a manager from Airmaster which I believe is the current subcontractor to sit in on this meeting so that they may learn about these substandard installations so as to better accommodate their building maintenance program on these systems?

2. It is not currently apparent to me how any of these orders sought are within the power of QCATA to make.  I wish to receive submissions from the parties on the point.      

Other matters

The correct respondent in these proceedings

1. In the application to appeal, Mr Jay named the Department as the first respondent and “Emergency Services Complex” as the second respondent. The appropriate respondent here is the Department of Housing and Public Works. This is because they were the original decision maker named in the decision that is being appealed.[1] Further, “Emergency Services Complex” is a building and therefore cannot be a party to litigation.  

   [1]Underwood v Metro North Hospital and Health Service & Anor [2022] QCATA 124 at [16-17], accepting the reasoning in Stiles v Information Commissioner [2021] QCATA 152 and Walker Group Holdings Pty Ltd v Queensland Information Commissioner (No 2) [2021] QCATA 84.

Application for legal representation by the Department

1. On 26 March 2024, QCATA received an application by the Department to be represented in these proceedings. Such an application is unnecessary as there is “as of right” representation in an appeal against a external review decision of the Information Commissioner: Rinaldi v Department of Justice and Attorney-General (Right to Information and Privacy) [2023] QCATA 136; Deemal-Hall v Office of the Director of Public Prosecution & Ors [2023] QCATA 137, [8-10].

2. The Department withdrew this application by email on 27 March 2024.   

Mr Jay can represent himself if he wishes

1. For the sake of clarity, Mr Jay may represent himself, or he may engage lawyers and be legally represented. That is entirely a matter for him. As QCATA currently understands Mr Jay’s preference, it is that he will be representing himself.  QCATA will act on the basis that Mr Jay is acting for himself, unless Mr Jay advises otherwise.

Orders

1.The matter remains listed for a directions hearing at the QEII Courts of Law on 14 May 2024, but rescheduled for 11:00 am. At that time, I will hear argument as to whether Mr Jay’s appeal, or part of it, should be struck out pursuant to section 47 QCAT Act.

2.Mr Jay is to file any submissions and any material he wishes to rely upon in respect of whether Mr Jay’s appeal, or part of it, should be struck out, pursuant to section 47 QCAT Act, and to serve same on the Department of Housing and Public Works by 4:00 pm on 26 April 2024, together with copies of any case law or legislation relied on upon.

3.The Department of Housing and Public works is to file any submissions and material it wishes to rely upon in response to the material referred to in direction 2, and to serve same on Mr Jay, by 4:00pm on 10 May 2024, together with copies of any case law or legislation relied on upon.