Menzies & Bruce v Owen - [2013] QCAT 527

CITATION:

Menzies & Bruce v Owen [2013] QCAT 527

PARTIES:	Ms Richelle Menzies and Ms Rhonda Bruce (Applicants)
v
Mr Ronald Owen (Respondent)

APPLICATION NUMBER:

ADC009-06; ADC011-06

MATTER TYPE:

Anti-Discrimination matters

HEARING DATE:

30 July 2013

HEARD AT:

Brisbane

DECISION OF:

Justice Alan Wilson, President
Clare Endicott, Senior Member
Hon John Jerrard QC, Member

DELIVERED ON:

26 September 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

The application for a stay in this matter and the alternate applications made by the Respondent are dismissed.1.

The orders described already herein for filing of affidavits and a directions hearing are made.2.

CATCHWORDS:

PROCEDURE – JURISDICTION – STAY OF PROCEEDINGS – where proceedings remitted to the Queensland Civil and Administrative Tribunal by an order of the Supreme Court of Queensland – where the respondent submits that QCAT is not a ‘court of a State’ within the meaning of the Commonwealth Constitution – where the respondent submits that ss 131 and 132 of the Queensland Civil and Administrative Tribunal Act 2009 deprive the Supreme Court of its decisional independence – whether the stay should be granted

PROCEDURE – GENERAL – PRECEDENTS – STATE AND TERRITORY SUPREME COURTS – where the applicants and respondent sought to amend the case stated to include two further questions – where the Supreme Court did not grant leave to amend the questions referred to that Court – where the Supreme Court then answered the questions sought to be included – where the respondent submits that the Supreme Court did not consider those questions in a binding sense – whether the ratio of the Supreme Court is limited to, or defined by, the applications brought to that Court

PROCEDURE – JURISDICTION – FORMER TRIBUNALS – where the applicants’ original application commenced in the Anti-Discrimination Tribunal – where the Anti-Discrimination Tribunal was replaced by the Queensland Civil and Administrative Tribunal with the passing of the Queensland Civil and Administrative Tribunal Act 2009 – where the applicants seek the matter to be treated as an ‘existing tribunal proceeding’ – where s 244 of the QueenslandCivil and Administrative Tribunal Act 2009 provides that an existing tribunal proceeding means a proceeding that was started before a former tribunal under a former Act before the commencement; and at the commencement, has not been withdrawn, dismissed, struck out or otherwise disposed of under the former Act – where s 257 of the QueenslandCivil and Administrative Tribunal Act 2009 provides that an existing tribunal proceeding must be constituted by the persons who constituted the former tribunal immediately before the commencement of that Act – where the respondent submits the member who constituted the Anti-Discrimination Tribunal did not do so immediately before the commencement of the Act – whether the application should be treated as an existing tribunal proceeding

Anti-Discrimination Act 1991 (Qld) s 124A
Commonwealth Constitution (Cth) s 77(iii)
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 3, 4, 28, 29, 47, 131, 132, 244, 257, 260(4)

Carruthers v Connolly [1998] 1 Qd R 339, cited

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Menzies & Bruce v Owen

Details

AGLC: Menzies & Bruce v Owen [2013] QCAT 527
Case: [2013] QCAT 527
Decision Date

CaseChat Overview and Summary

The matter before the Queensland Civil and Administrative Tribunal (QCAT) was an application for a stay of proceedings in proceedings brought under the Anti-Discrimination Act 1991 (Qld). The proceedings had been remitted to QCAT by an order of the Supreme Court of Queensland. The Respondent, Mr Ronald Owen, submitted that QCAT was not a 'court of a State' within the meaning of the Commonwealth Constitution, and therefore, sections 131 and 132 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) were beyond the legislative competence of the Parliament of Queensland as they deprived the Supreme Court of Queensland of its decisional independence in deciding what is, or is not, an order of the Supreme Court of Queensland.

QCAT considered the submissions of the Respondent and the Applicants, Ms Richelle Menzies and Ms Rhonda Bruce, and found that the issues raised by the Respondent had already been considered and determined by the Court of Appeal in Owen v Menzies & Ors; Bruce v Owen; Menzies v Owen. The Court of Appeal had held that QCAT was a court of a State for the purposes of the Constitution, and that the provisions of the QCAT Act did not deprive the Supreme Court of its decisional independence. QCAT also found that the Respondent's contention that the evidence taken by the former Anti-Discrimination Tribunal should be the evidence received by QCAT in hearing and determining the matter was unpersuasive. The matter should be heard afresh, with the now reduced number of complainants, and not on the basis of merely receiving evidence previously given.

In conclusion, QCAT dismissed the application for a stay and the alternate applications made by the Respondent. The Applicants were directed to file and serve their affidavit material in support of their application by 18 October 2013, and the Respondent was directed to file and serve his affidavit material in reply by 15 November 2013. The Applicants were to file any affidavits in response by 6 December 2013. A directions hearing was to be held at a time and date to be advised by QCAT.

Orders