McClelland v Gold Coast City Council
[2013] QCATA 240
•29 August 2013
| CITATION: | McClelland v Gold Coast City Council [2013] QCATA 240 |
| PARTIES: | Mr Robert John McClelland (Appellant) |
| v | |
| Gold Coast City Council (Respondent) |
| APPLICATION NUMBER: | APL284 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe OAM, Senior Member |
| DELIVERED ON: | 29 August 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused |
| CATCHWORDS: | MINOR CIVIL DISPUTE – where Council appeared by legal representative –where Council supplies water and waste water service – where applicant disputes charges - whether Council a “trader” Queensland Civil and Administrative Tribunal Act 2009 ss 3(b), 4(c), 5, 12(b), 43 Dearman v Dearman (1908) 7 CLR 549; Chambers v Jobling (1986) 7 NSWLR 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 |
APPEARANCES and REPRESENTATION (if any):
The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Mr and Mrs McClelland have a home at the Gold Coast. They say that the Council has not addressed their concerns about excess water charges which, they say, are caused by faulty plastic pressure pipes and Council trees on the nature strip. They filed a consumer dispute in the minor civil disputes jurisdiction of the tribunal, claiming relief from payment of the Council’s water bills. The tribunal struck out the claim for want of jurisdiction.
Mr McClelland wants to appeal that decision. He says that the Council was represented by a lawyer, but had failed to seek leave. He says that the learned Adjudicator allowed the lawyer to appear for the Council, despite his objections. He says that the tribunal refused his application for an adjournment, so that he could get legal advice. He says that the tribunal did not review his submissions but focussed narrowly on a strict definition. He says the tribunal erred in applying strict legal definitions rather than having regards to its objects and functions under the Queensland Civil and Administrative Tribunal Act 2009 (Qld). He says that the tribunal did not act fairly. He says that the learned Adjudicator should have disqualified herself because she had ruled against him in an unrelated case. He says that it is in the public interest that this dispute is reviewed. He says that the learned Adjudicator erred in finding that the tribunal did not have jurisdiction.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?[4]
[1] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2] Cachia v Grech [2009] NSWCA 232 at 2.
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
I have considered the issue of this Council appearing by a lawyer, without notice, in another appeal[5]. I hope that, by now, the Council is aware of, and will apply, the provisions of s 43 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) by applying for leave before the hearing and not taking parties by surprise.
[5]Dann v Gold Coast City Council [2013] QCATA 220.
The learned Adjudicator considered the question of leave. She told Mr McClelland that the Council could make an oral application for leave. She told him the tribunal usually granted leave for government agencies to have legal representation[6]. She asked Mr McClelland if he wanted an adjournment, so that he could make submissions about the Council’s representation[7]. She did, later, refuse Mr McClelland’s application for an adjournment so that he could be represented[8].
[6] Transcript page 1-4, lines 32-42.
[7] Transcript page 1-5, lines 1-8.
[8] Transcript page 1-8, lines 21-25.
I am not persuaded that Mr McClelland suffered any disadvantage by the Council having legal representation or by the learned Adjudicator’s refusal to grant an adjournment. Mr McClelland knew that jurisdiction was going to be an issue[9]. He handed up submissions drafted by a lawyer[10] and the submissions addressed that issue. Mr McClelland told the learned Adjudicator he had some extra submissions and she invited him to make them[11]. As his submissions in this application show, the learned Adjudicator had access to every argument Mr McClelland wanted to put to the tribunal.
[9] Transcript page 1-3, lines 24-26.
[10] Exhibit 1.
[11] Transcript page1-5, line 45.
The tribunal does have a mandate to treat matters in a way that is accessible and fair[12] and to conduct proceedings in an informal way[13]. Those exhortations relate to the tribunal’s process, not the way it applies the law.[14] The tribunal is a creation of Parliament. It can only do what the Act allows. If Mr McClelland’s claim does not fall within the jurisdiction of s 12 of the QCAT Act, no amount of “just” or “informal” proceedings can cure that.
[12] QCAT Act s 3(b).
[13] QCAT Act s 4(c).
[14]Kellogg v Board of Trustees The Ipswich Girls’ Grammar School [2011] QCATA 210 at [5], [6].
An adverse finding is not a good enough reason for the learned Adjudicator to disqualify herself from hearing this dispute. Mr McClelland has not pointed to any evidence of bias and there is nothing in the transcript to support a view that the learned Adjudicator should have disqualified herself.
The only issue for the learned Adjudicator was whether the Council was a “trader” within s 12(b) of the QCAT Act. Section 5 is irrelevant if the tribunal has no jurisdiction. Mr McClelland argues that the Council is a trader because it is in the business of supplying water and waste water facilities to rate payers. He argues that, because the Council is the successor to Allconnex Water, it takes on the commercial identity of Allconnex. He relies on the definition of “trader” in Schedule 3 of the QCAT Act. He points to the fact that the Water Act 2000 (Qld) and the Water Supply (Safety and Reliability) Act 2008 (Qld) give the tribunal jurisdiction.
The tribunal’s jurisdiction under the Water Act and Water Supply (Safety and Reliability) Act is limited to reviews of decisions by the Chief Executive under those Acts. They do not give the tribunal unlimited power to consider all matters related to water supply. These Acts do not assist Mr McClelland.
The tribunal has considered the definition of “trader”. A body corporate is not a trader because it simply carries out the functions assigned to it by legislation or the community management statement.[15] The Council is in a similar position. It carries out its functions under the South-East Queensland Water (Distribution and Retail Restructuring) Act 2009 (Qld). Even if, as Mr McClelland asserts, the Council makes a profit from the activity, this is not enough to make it a trader within s 12(b) of the Act.
As the Federal Court has noted[16] the Council’s activities lack the essential quality of trade. At best, they are incidental to the Council’s primary function of providing public service and infrastructure to Gold Coast City.[15] Randall v Body Corporate Runaway Cove Bayside [2011] QCATA 10 at [15] to [26].
[16]Australian Workers’ Union of Employees, Queensland v Etheridge Shire Council [2008] FCA 1268 at [151].
Mr McClelland states that there is public interest in his dispute with Council. The learned Adjudicator’s decision does not prevent that dispute being heard; this tribunal is not, however, the correct forum.
There is no question of general importance that should be determined by the appeals tribunal. There is no reasonably arguable case that the learned Adjudicator was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.
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