McDonald v Department of Transport and Main Roads

[2011] QCAT 679

CITATION: McDonald v Department of Transport and Main Roads [2011] QCAT 679

PARTIES:	Mr Frank McDonald
v
Department of Transport and Main Roads

APPLICATION NUMBER:   GAR179-11  

MATTER TYPE: General administrative review matters

HEARING DATE:     On the papers

HEARD AT:  Brisbane

DECISION OF: Ms Kate Buxton, Member

DELIVERED ON: 14 July 2011

DELIVERED AT:      Brisbane

ORDERS MADE: 1.     Application for review and Application for stay are dismissed.

CATCHWORDS: Stay – No Jurisdiction where internal review avenues not yet exhausted

APPEARANCES and REPRESENTATION (if any):

No appearances – decision on the papers.

REASONS FOR DECISION

1. The Applicant has filed a review application, together with an application for a stay, in respect of the decision made on 17 May 2011 within the Department of Transport and Main Roads refusing the Applicant accreditation as a Traffic Controller.

1. The Respondent Department submits that the Application for the stay ought be refused on public interest grounds and dismissed on jurisdictional grounds.

1. The more pressing point is that there is currently no decision before this tribunal which is within QCAT's review jurisdiction as the Applicant has not yet exhausted the avenues available to him to seek review of the decision from within the Department.  Similarly, there is not yet any internal review in relation to which a stay could be sought.  The review application itself must therefore be dismissed on the basis that it has been mistakenly commenced by the Applicant having omitted a necessary step in the review process.  He must first seek review by the Chief Executive of the Department under s 65(1) of the Transport (Operations and Road Use Management) Act 1995.

1. The Applicant is out of time to commence the internal review.  Had the application to QCAT for review been the appropriate next step then he would have been within time.  No doubt this fact, together with the apparent genuine mistake made by the applicant in his choice of process, will be taken into account in any application and extension of time (pursuant to the broad powers given by s 32 of the Transport Planning and Co-ordination Act 1994) within which to commence the internal review under s 65(1) of the Transport (Operations and Road Use Management) Act 1995.

1. The Application for review, together with the Application for a stay, must both be dismissed for want of jurisdiction.

ORDER

1. Application for review and Application for stay are dismissed.