McElligott v Blair

[2020] QCA 279

COURT OF APPEAL

SOFRONOFF P

Appeal No 9275 of 2020
QCAT No 156 of 2019

LORAIN RONDA McELLIGOTT Appellant

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.

CaseChat Overview and Summary

The appeal in McElligott v Blair was brought by the appellant, Lorain Ronda McElligott, against orders made by Linda Christine Blair, the respondent, which were issued by a member of the Queensland Civil and Administrative Appeals Tribunal on 30 July 2020. The orders in question were neither cost-amount decisions nor were they made by a judicial member. The appeal was heard by the Court of Appeal, which was tasked with determining the validity of the appeal based on the jurisdiction conferred upon it by the Queensland Civil and Administrative Tribunal Act 2009.

The central legal issue the court had to resolve was whether the Court of Appeal had jurisdiction to hear an appeal against the orders made by a non-judicial member of the tribunal. The court examined the provisions of the Queensland Civil and Administrative Tribunal Act 2009, specifically sections 142 and 149, to determine the scope of its jurisdiction. Section 149 of the Act confers jurisdiction on the Court of Appeal to hear appeals against cost-amount decisions made by tribunals, and if the tribunal was constituted by a judicial member, it could hear other types of decisions. However, section 142 specifies that the Court of Appeal only has jurisdiction to hear appeals from orders made by an appeal tribunal constituted under section 165. The court needed to ascertain whether the appellant's appeal fit within these jurisdictional constraints.

The court found that the appellant's appeal did not fall within the jurisdictional constraints outlined in the Queensland Civil and Administrative Tribunal Act 2009. The court noted that the appellant's reliance on section 29(3) of the Supreme Court of Queensland Act 1991 was misplaced because it applied only to proceedings before the Court of Appeal and did not extend to the current circumstances. The court concluded that the Queensland Civil and Administrative Tribunal Act did not confer the necessary jurisdiction upon the Court of Appeal to hear appeals from the orders made by a non-judicial member of the tribunal. Consequently, the court determined that the notice of appeal was invalid and had to be struck out.

The final orders of the court were that the notice of appeal was invalid and must be struck out. The court did not grant leave to appeal, as it found that there was no jurisdiction under the relevant legislation for the appeal to proceed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established