O'Grady v Cairns Regional Council

[2011] QCAT 534

CITATION: O’Grady & Anor v Cairns Regional Council [2011] QCAT 534

PARTIES:	John O’Grady Alison O’Grady
v
Cairns Regional Council

APPLICATION NUMBER:   GAR186-11  

MATTER TYPE: General administrative review matters

HEARING DATE:     On the papers

HEARD AT:  Brisbane

DECISION OF: C Endicott, Senior Member

DELIVERED ON: 27 October 2011

DELIVERED AT:      Brisbane

ORDERS MADE: Application for review is dismissed.

CATCHWORDS:

REVIEW OF ADMINISTRATIVE DECISION – where no reviewable decision – early end to proceedings – application lacks substance

Queensland Civil and Administrative Tribunal Act 2009, ss 6(2), 17, 18, 47
Local Government Regulation 2010

APPEARANCES and REPRESENTATION (if any):

The hearing took place on the papers in the absence of the parties under section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. John O’Grady and Alison O’Grady are the owners of a property in Trinity Park which adjoins the Bluewater Canal.  The property is within the local government area of the Cairns Regional Council.

2. The Council conducts ongoing dredging works in the Bluewater Canal and has determined to levy a special charge on certain lands adjoining Bluewater Canal to meet the cost of this ongoing work.  Until 30 June 2011 the Council had not included the land owned by John O’Grady and Alison O’Grady in the special levy but the Council determined to include their land in the special levy for the 2011/2012 financial year.

3. John O’Grady and Alison O’Grady object to this determination and have commenced a review in QCAT of the decision made by the Council to levy the special charge on their land.  The parties were directed to provide written submissions to QCAT as to the jurisdiction of the tribunal to review this particular decision.  Both parties have provided their submissions.

4. John O’Grady and Alison O’Grady submit that QCAT has jurisdiction to conduct reviews of administrative decisions. This is correct. Under sections 17 and 18 of the Queensland Civil and Administrative Tribunal Act 2009, QCAT can exercise the power to review administrative decisions where jurisdiction has been conferred by an enabling Act.  The term “enabling Act” is defined in section 6(2) of that Act to include subordinate legislation which confers review jurisdiction on QCAT.  A regulation is one type of subordinate legislation. 

5. The Local Government Regulation 2010 provides jurisdiction for certain specified decisions made by Council to be reviewed by QCAT.  That Regulation is one of the enabling Acts which confer review jurisdiction on QCAT.  For the reasons discussed below, the Regulation does not however provide QCAT with jurisdiction to review the decision that John O’Grady and Alison O’Grady seek to have reviewed in this case.  

6. QCAT does not have general jurisdiction over all decisions made under an enabling Act but only over those decisions relevant to an expressly conferred review power.  QCAT can only exercise the specific jurisdiction properly conferred on the tribunal.  I have examined the Regulation in question and I am satisfied that the review power conferred by that Regulation on QCAT relates to a review of an amendment of a land record to reflect the change made in the rates or charges levied on land.  

7. I am satisfied that no jurisdiction has been conferred on QCAT to conduct a review of the decision made by the Council to make and levy a special charge for the 2011/2012 financial year on the land owned by John O’Grady and Alison O’Grady.  I acknowledge that the decision made by the Council has resulted in an amendment to the land record relating to the land owned by John O’Grady and Alison O’Grady.  However the decision sought to be reviewed is not the amendment made to the land record but is the underlying decision to levy the special charge for 2011/2012. 

8. The Regulation does not provide jurisdiction for QCAT in this case to review the decision in question.  The review application is without substance as QCAT has no jurisdiction to conduct a review. 

9. Section 47 of the Queensland Civil and Administrative Tribunal Act 2009 gives QCAT power to bring a proceeding to an early end if the tribunal considers that an application is misconceived or is lacking in substance.  I have found that QCAT does not have jurisdiction to conduct a review of the decision in question and that accordingly the review application lacks substance.

[10]Section 47 has a valid role to play in ensuring that the tribunal does not devote time and resources to proceedings that have no prospects of success. When considering whether to bring an early end to a case, QCAT should look to be satisfied whether the factors in favour of a person having the opportunity to continue to seek review of an administrative decision have been clearly outweighed by factors involving the proper use of QCAT’s resources and factors involving fairness to a respondent.

[11]I am satisfied that the balance in this case clearly comes out in favour of the tribunal dismissing the review application under section 47 of the Queensland Civil and Administrative Tribunal Act 2009.

[12]Reference has been made to earlier decisions of QCAT.[1]  Those decisions also related to the Council making a decision to levy a special charge over land.  Although the legislation in question in those cases was the repealed Local Government Act 1993, the decision was effectively the same as the decision sought to be reviewed in this case.  The learned member determined in those cases that QCAT did not have jurisdiction to review that decision. 

[1]Izard v Cairns Regional Council [2010] QCAT 410 and Izard v Cairns Regional Council [2011] QCAT 85.

[13]Reliance on those earlier decisions confirm the conclusion I have made that QCAT does not have jurisdiction in this matter and that an early end should be brought to the review application made by John O’Grady and Alison O’Grady.