McElligott v Blair

[2020] QCA 279

[2020] QCA 279

COURT OF APPEAL

SOFRONOFF P

Appeal No 9275 of 2020
QCAT No 156 of 2019

LORAIN RONDA McELLIGOTT  Appellant

v

LINDA CHRISTINE BLAIR  Respondent

BRISBANE

THURSDAY, 10 DECEMBER 2020

JUDGMENT

SOFRONOFF P: Section 149 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) confers jurisdiction upon the Court of Appeal to grant leave to appeal against a cost-amount decision[1] made by a tribunal and, if the tribunal was constituted by a judicial member,[2] against other kinds of decisions.  In other cases s 142 confers jurisdiction upon an “appeal tribunal” constituted under s 165 to hear appeals against orders.  The provisions which follow s 142 specify constraints upon such appeals.

[1]A “cost-amount decision” is a decision fixing the amount of costs payable: s 107.

[2]A “judicial member” is a member who is the president, deputy president of is a Supreme Court or District Court judge: Schedule 3.

The appellant in these matters seeks to appeal against orders made by a member of the Queensland Civil and Administrative Appeals Tribunal on 30 July 2020.  The orders were not cost-amount decisions nor was the member who made the order a judicial member.

At a review of the matter on 20 October 2020 I directed the appellant to file submissions to justify the validity of her appeal having regard to the limited jurisdiction conferred by the Act upon the appeal tribunal and the Court of Appeal and, in particular, having regard to the absence of jurisdiction in the Court of Appeal to hear appeals from decisions by members of the tribunal at first instance who are not judicial members.

The appellant lodged written submissions on 20 November 2020 in which she placed reliance upon s 29(3) of the Supreme Court of Queensland Act 1991 (Qld), which stated that in proceedings before it, the Court of Appeal may exercise every jurisdiction or power of the court, whether at law or in equity or under any Act, Commonwealth Act or Imperial Act. That reliance is misplaced because the section applies to confer power and jurisdiction upon the Court of Appeal when there are “proceedings before it”. There can only be proceedings by way of appeal to the Court of Appeal if a statute confers jurisdiction to hear an appeal. The Queensland Civil and Administrative Tribunal Act does not confer jurisdiction upon the Court of Appeal to hear appeals against orders of the kind that the appellant seeks to challenge in her notice of appeal.

It follows that the notice of appeal is invalid and must be struck out.