Lee v Brisbane City Council

[2012] QCATA 3

CITATION: Lee v Brisbane City Council [2012] QCATA 3

PARTIES:	Nancy Lee (Applicant/Appellant)
v
Brisbane City Council (Respondent)

APPLICATION NUMBER: APL449-11

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Richard Oliver, Senior Member

DELIVERED ON: 11 January 2012

DELIVERED AT: Brisbane

ORDERS MADE: The Tribunal directs the Principal Registrar to reject the application filed 7 December 2011.

CATCHWORDS:

Appeals – where application to appeal a decision of the Appeal Tribunal to refuse to grant a stay – where the Tribunal lacks jurisdiction to hear such an appeal

Queensland Civil and Administrative Tribunal Act2009, ss 35, 36, 145, 150

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. On 7 December 2011 Ms Lee filed an application for leave to appeal or appeal from a decision of the Tribunal directing the Principal Registrar to reject Ms Lee’s application under section 35 of the QCAT Act. Ms Lee has asked for reasons for that decision.

1. I express some reservations as to whether section 122 of the Act applies to this decision. The section refers to a “decision in a proceeding”. A proceeding is defined as a proceeding before the Tribunal. Section 36 provides that a “proceeding starts when the principal registrar accepts an application”. Here the application has been rejected so it follows that the proceeding has not started. However, despite my reservations I propose to provide reasons so as to inform Ms Lee why the Tribunal decided to reject her application.

1. This application, filed on 7 December 2011, sought leave to appeal from a decision by the Appeal Tribunal in APL428-11 refusing a stay of the Tribunal’s decision in GAR408-11 pending the determination of the appeal in APL428-11. The Principal Registrar rejected the application in this proceeding under section 35(2) of the QCAT Act on the grounds that the Appeal Tribunal did not have jurisdiction to hear and determine an appeal from a decision of the Appeal Tribunal.

1. Section 145(2) provides that the Tribunal’s power to make an order staying the operation of a decision being appealed against can only be made by the “tribunal constituted for the appeal”. The effect of this is that the order refusing the stay was made by the Appeal Tribunal.

1. A party can appeal certain decisions of the Appeal Tribunal under section 150 of the QCAT Act to the Court of Appeal. The types of matters that may be appealed to the Court of Appeal are limited to a refusal of an application for leave to appeal, a cost-amount decision and the final decision. This application does not fall within any of those types of matters. Section 150 of the Act does not make any provision for an appeal from an interlocutory application for a stay of a decision made in the appeal proceeding. As there is no legislative power to appeal this type of matter, QCAT has no jurisdiction to hear or determine this application.