Jeffs v Nilsson

[2022] QCATA 146

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Jeffs v Nilsson & Anor [2022] QCATA 146

PARTIES:

BERYL JEFFS

(applicant/appellant)

v

LARS FREDRIK NILSSON
MARIA ANGELIKI NILSSON

(respondents)

APPLICATION NO/S:

APL028-22

ORIGINATING APPLICATION NO/S:

NDR176-20

MATTER TYPE:

Appeals

DELIVERED ON:

14 September 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

1.     Leave to appeal refused

2.     Appeal dismissed

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – ORDERS SET ASIDE OR VARIED –  whether consent orders can be set aside – whether an inferior court can set aside a final decision – whether evidence from a compulsory conference is admissible – whether Tribunal erred in making consent orders

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 74

Australian CCTV & Alarm Specialists Pty Ltd v Willowbank Surgery [2014] QCATA 39.

Dream Suburbs Pty Ltd ABN 582 477 245 56 v Body Corporate for Persse Palace Community Titles Scheme 48289 & Ors [2019] QCAT 373.
McVey v St Vincents Hospital 2005 VSCA 233.

State of Queensland & Anor v Aigner [2013] QCATA 151.

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. The Tribunal made consent orders finalising a tree dispute involving Ms Jeffs and Mr and Mrs Nilsson. Ms Jeffs now seeks to appeal the consent orders.

2. There are two issues for determination. Does the QCAT Appeal Tribunal have the power to set aside consent orders made by the Tribunal at first instance? Was there error by the Tribunal in making the consent orders.

   The consent orders

3. Ms Jeffs commenced a proceeding for a tree dispute. Following a compulsory conference, the Tribunal member presiding at the conference made orders by consent requiring Mr and Mrs Nilsson to undertake work relating to a number of trees. An order was also made dismissing the application.

   Can a consent order be set aside by the QCAT Appeal Tribunal?

4. The following passage from McVey v St Vincents Hospital[1] is relevant for present purposes. The Victorian Court of Appeal said the following when dealing with consent orders made in County Court proceedings:

   Save for limited purposes, it may be doubted that a judge of the County Court, an inferior statutory court, would have power to set aside a perfected judgment of that court. The only remedy would be by way of appeal to the Court of Appeal, and that is the course which the applicant has attempted to pursue. An appellate court has power ‘to strike off the fetters’ which might restrain an inferior court from setting aside the judgement entered pursuant to a consent agreement.

   [1]2005 VSCA 233.

5. QCAT is an inferior court of record,[2] having no inherent powers. The Tribunal has certain implied powers, however these are limited to those powers ancillary to an order of QCAT exercising the Tribunal’s original jurisdiction to resolve the dispute or, to make…