Nuevo v Valuers Registration Board of Queensland
[2011] QCAT 152
•12 April 2011
| CITATION: | Nuevo v Valuers Registration Board of Queensland [2011] QCAT 152 |
| PARTIES: | Ms Carmen Nuevo |
| v | |
| Valuers Registration Board of Queensland |
| APPLICATION NUMBER: | GAR412-10 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 12 April 2011 |
| HEARD AT: | On the papers |
| DECISION OF: | Ms Sandra G Deane, Member |
| DELIVERED ON: | 12 April 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The application is struck out. |
| CATCHWORDS: | Application for review of decision of Valuers Registration Board of Queensland – whether the Tribunal has jurisdiction to hear the proceeding – reviewable decisions – application misconceived or lacks substance Valuers Registration Act 1992, s 61(1) Higgins v Victorian Taxi Directorate [2006] VCAT 2534 Kyriazis v Department of Justice [2010] VCAT 1788 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Background
Carmen Nuevo made a complaint to the Valuers Registration Board of Queensland (the Board) in relation to the professional conduct of registered valuer, Mr Malcolm Malone on 7 July 2009.
An investigation was undertaken and reports given to the Board.
The Board decided to take no further action and informed Ms Nuevo by letters dated 5 October 2010 and 11 November 2010.
Ms Nuevo applied to the Tribunal for a review of the Board’s decision.
At the Directions Hearing held on 8 February 2011 the Board objected to the proceedings on the grounds that the Tribunal does not have jurisdiction to hear and determine Ms Nuevo’s application.
Legislation
Section 17(1) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) provides:
“The tribunal’s review jurisdiction is the jurisdiction conferred on the tribunal by an enabling Act to review a decision made or taken to have been made by another entity under that Act.”
Section 61 of the Valuers Registration Act 1992 (the Enabling Act) provides that a person aggrieved by certain specified decisions may apply to the Tribunal for a review of the decision.
Section 47 of the QCAT Act permits the Tribunal to dismiss or strike out a proceeding if it finds that the proceeding is frivolous, vexatious or misconceived, is lacking in substance or is otherwise an abuse of process. The Tribunal may dismiss or strike out a proceeding under section 47 on application by a party or on its own initiative.
Board’s Submissions
The Board submits that:
a)the decision sought to be reviewed does not fall within the ambit of section 61(1) of the Enabling Act;
b)there is no other provision in the Enabling Act which confers relevant jurisdiction upon the Tribunal;
c)as the Tribunal has no jurisdiction Ms Nuevo’s application should be dismissed.
Ms Nuevo’s Submissions
[10] Ms Nuevo concedes that none of the subsections in section 61(1) of the Enabling Act on their face apply to the current circumstances.
[11] Ms Nuevo submits that:
a)section 61 of the Enabling Act does not say that these are the only matters which the Tribunal has jurisdiction to determine;
b)the Enabling Act is silent about any review mechanism for such decisions;
c)it is not reasonable that the Tribunal has jurisdiction to review certain decisions of the Board but not others;
d)there is confusion within the Board as to the Tribunal’s jurisdiction as Ms Nuevo was informed by letter dated 11 November 2010 that a right of appeal to the Tribunal existed.
Discussion and Decision
[12] Ms Nuevo accepts that none of the subsections of section 61(1) of the Enabling Act on their face apply to the current circumstances. The jurisdiction conferred appears to relate to specific decisions of the Board about registration and discipline. No relevant authority was submitted by the parties nor was found by the Tribunal for a broad interpretation of any of the sub-section circumstances in section 61(1).
[13] The Tribunal is a creature of statute and relies upon either the QCAT Act or various enabling Acts for its jurisdiction. Unlike some courts the Tribunal has no inherent jurisdiction.
[14] It is a very serious matter for the Tribunal to dismiss or strike out an application for review of a decision without allowing a hearing of that application to take place.
[15] The Victorian Civil and Administrative Tribunal (VCAT) has considered section 75 of the Victorian Civil and Administrative Tribunal Act 1998 which is very similar to section 47 of the QCAT Act. VCAT has found that it is appropriate to act under section 75 in the event of a clear lack of jurisdiction.[1] VCAT has decided that if VCAT lacks jurisdiction a proceeding will be struck out under section 75.[2]
[1] Higgins v Victorian Taxi Directorate [2006] VCAT 2534.
[2] Kyriazis v Department of Justice [2010] VCAT 1788.
[16] If the Tribunal has no jurisdiction to hear an application that would be grounds for striking out the application based on it being misconceived or lacking in substance.
[17] I therefore find that the Tribunal has no jurisdiction to determine Ms Nuevo’s application and therefore Ms Nuevo’s application is misconceived or lacking in substance.
Orders
[18] The application is struck out pursuant to section 47 of the Queensland Civil and Administrative Tribunal Act 2009.
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