Kelson v Tricare (Aspley) Ltd

[2013] QCAT 555

CITATION: Kelson v Tricare (Aspley) Ltd [2013] QCAT 555

PARTIES:	Marion Jean Kelson (Applicant)
v
Tricare (Aspley) Ltd (Respondent)

APPLICATION NUMBER: OCL038-13

MATTER TYPE: Retirement Village matter

HEARING DATE: 18 June 2013

HEARD AT: Brisbane

DECISION OF: P Hanly, Member

DELIVERED ON: 18 October 2013

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The applications for interim orders is dismissed.

CATCHWORDS:

RETIREMENT VILLAGES – application for interim order - whether tribunal has jurisdiction

Retirement Villages Act 1999 ss154, 157

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. Ms Kelson is a resident in a retirement village operated by Tricare (Aspley) Ltd. On 21 May 2013 Ms Kelson lodged an application for a Tribunal hearing alleging contravention by Tricare of the Retirement Villages Act 1999. Ms Kelson had previously attempted to resolve the dispute by negotiation[1] and then by mediation.[2]  These are necessary steps before an application can be made for a Tribunal hearing.

   [1]        Retirement Villages Act 1999 s 154.

   [2]        Retirement Villages Act 1999 s 157.

2. The outcomes sought by Ms Kelson were that the Wide Area Network Fee be absorbed by Tricare within administrative fees, and that the Maintenance Reserve Fund resident contributions remain capped for 5 years in accordance with the current Quantity Surveyor’s report.

3. On 5 June 2013 and again on 18 June 2013, Ms Kelson sought interim orders in relation to a number of matters, which were not part of the outcomes sought by Ms Kelson in her May application. 

4. There was no evidence before the Tribunal that Ms Kelson had attempted to resolve those matters by negotiation with Tricare. That step must be taken before the resident can seek mediation, which in turn must occur before the resident can seek a hearing in the Tribunal.

5. Under the Queensland Civil and Administrative Tribunal Act 2009 the Tribunal, before making a final decision in a proceeding, may make an interim order it considers appropriate to protect a party’s position for the duration of the proceeding or to require or permit something to be done to secure the effectiveness of the exercise of the tribunal’s jurisdiction for the proceeding.[3]

   [3] QCAT Act s 58.

6. In this matter, the Tribunal does not have jurisdiction to make interim orders in relation to the matters raised by Ms Kelson in her applications for interim orders, because she has not taken the preliminary steps outlined above in respect of those matters.

7. Accordingly, the applications for interim orders are dismissed.