Pivovarova v Michelsen

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SUPREME COURT OF QUEENSLAND

CITATION:

Pivovarova v Michelsen [2019] QCA 256

PARTIES:

TATIANA PIVOVAROVA
(applicant)
v
PETER B. MICHELSEN t/as PETER MICHELSEN BUILDING SERVICE
ABN 84 003 506 297
(respondent)

FILE NO/S:

Appeal No 5730 of 2019
QCAT No 223 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Queensland Civil and Administrative Tribunal Act

ORIGINATING COURT:

Queensland Civil and Administrative Appeals Tribunal at Brisbane – [2019] QCATA 54 (Daubney J)

DELIVERED ON:

19 November 2019

DELIVERED AT:

Brisbane

HEARING DATE:

25 September 2019

JUDGES:

Fraser JA and Boddice and Crow JJ

ORDER:

Application for leave to appeal dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – STATUTORY APPEALS FROM ADMINISTRATIVE AUTHORITIES TO COURTS – where applicant seeks leave to appeal a decision of the appeal tribunal of the Queensland Civil and Administrative Tribunal – where s 150(3)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) provides that an appeal may be made “only on a question of law” – whether the grounds of the proposed appeal raised by the applicant are limited to questions of law – whether the Court of Appeal lacks jurisdiction to hear and determine the proposed appeal

Administrative Appeals Tribunal Act 1975 (Cth), s 44
Domestic Building Contracts Act 2000 (Qld), s 67
Liquor Act 1992 (Qld), s 35
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142, s 149, s 150, s 153
UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations
Uniform Civil Procedure Rules 1999 (Qld), r 765(1)

Bagumya v Kakwano [2010] NSWSC 600, cited
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, cited
Comcare v Etheridge (2006) 149 FCR 522; [2006] FCAFC 27, cited
Commissioner for Liquor and Gaming v Farquhar Corporation Pty Ltd[2018] QCA 202, cited
Commissioner of Police v Stehbens[2013] QCA 81, cited
Da Costa v The Queen (1968) 118 CLR 186; [1968] HCA 51, cited
Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219; [2009] QCA 66, cited
Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92, cited
Hussain v Minister for Foreign Affairs (2008) 169 FCR 241; [2008] FCAFC 128, cited
In Vitro Technologies Pty Ltd v Taylor[2011] QCA 44, cited
Michelsen v Pivovarova [2017] QCAT 235, cited
Osland v Secretary to the Department of Justice [No 2] (2010) 241 CLR 320; [2010] HCA 24, cited
Owners Strata Plan No 68976 v Nicholls [2018] NSWSC 270, cited
Pivovarova v Peter B Michelsen t/as Peter Michelsen Building Service ABN 84003506297 [2019] QCATA 54, cited
Pivovarova v Michelsen [2015] QCATA 73, cited
Powell v Queensland University of Technology [2018] 2 Qd R 234; [2017] QCA 200, cited
Queensland Building and Construction Commission v Arthurs[2014] QCA 307, cited
Rintoul v State of Queensland & Ors[2018] QCA 20, cited
Robb v Tunio[2014] QCA 127, cited
Soulemezis…

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Details
Case
[2019] QCA 256
Decision Date

CaseChat Overview and Summary

Pivovarova v Michelsen involved the applicant seeking leave to appeal a decision of the appeal tribunal of the Queensland Civil and Administrative Tribunal (QCAT). The applicant's appeal was based on grounds that were not strictly limited to questions of law, contrary to the requirements of section 150(3)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). The central legal issue was whether the Queensland Court of Appeal had jurisdiction to hear and determine an appeal that was not confined to questions of law, as mandated by the statutory provisions.

The court examined the statutory framework and noted that appeals to the Court of Appeal from QCAT decisions were strictly limited to questions of law. The court referenced previous decisions, including Commissioner for Liquor and Gaming v Farquhar Corporation Pty Ltd, which emphasised the importance of an appeal being on a question of law. The court also drew on observations from Haritos v Commissioner of Taxation and Frugtniet v Australian Securities and Investments Commission, which highlighted the necessity for the appeal to be on a question of law and the broad interpretation of what constitutes a legal question. The applicant's appeal, which included matters beyond questions of law, did not meet the statutory criteria, leading to the conclusion that the court lacked jurisdiction.

Consequently, the court dismissed the application for leave to appeal. The reasoning was based on the strict statutory requirement that appeals must be limited to questions of law and the applicant's failure to confine the grounds of appeal within this scope.

Orders

Orders of the court

Application for leave to appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Section 150(2) and (3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) provide as follows:“150 Party may appeal—decisions of appeal tribunal…(2)A party to an appeal under division 1 may appeal to the Court of Appeal against the following decisions of the appeal tribunal in the appeal—(a)a cost-amount decision;(b)the final decision.(3)However, an appeal under subsection (1) or (2) may be made—(a)only on a question of law; and(b)only if the party has obtained the court’s leave to appeal. In Commissioner for Liquor and Gaming v Farquhar Corporation Pty Ltd[39] Jackson J, with whom Gotterson JA and Boddice J agreed, said of a similar provision as follows[40]:[39][2018] QCA 202.[40][2018] QCA 202 at [15] – [18].“[15] The appeal to this court is one that a party to the proceeding for the decision of QCAT may bring, ‘but only if the appeal is on a question of law’: see s 35(3) of the Act.[16]It follows that this appeal can only be maintained by the appellant on a question of law arising out of QCAT’s decision dated 10 July 2018.[17]In the present case, the appellant did not confine itself to grounds that would constitute an appeal on a question of law, as will be discussed. In Haritos v Commissioner of Taxation, in a cognate context, a five member bench of the Full Court of the Federal Court made the following useful observations:‘(1)The subject matter of the Court’s jurisdiction under s 44 of the AAT Act is confined to a question or questions of law. The ambit of the appeal is confined to a question or questions of law.(2)The statement of the question of law with sufficient precision is a matter of great importance to the efficient and effective hearing and determination of appeals from the Tribunal.(3)The Court has jurisdiction to decide whether or not an appeal from the Tribunal is on a question of law. It also has power to grant a party leave to amend a notice of appeal from the Tribunal under s 44.(4)Any requirements of drafting precision concerning the form of the question of law do not go to the existence of the jurisdiction conferred on the Court by s 44(3) to hear and determine appeals instituted in the Court in accordance with s 44(1), but to the exercise of that jurisdiction.(5)In certain circumstances it may be preferable, as a matter of practice and procedure, to determine whether or not the appeal is on a question of law as part of the hearing of the appeal.(6)Whether or not the appeal is on a question of law is to be approached as a matter of substance rather than form.(7)A question of law within s 44 is not confined to jurisdictional error but extends to a non-jurisdictional question of law.(8)The expression ‘may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal’ in s 44 should not be read as if the words ‘pure’ or ‘only’ qualified ‘question of law’. Not all so-called ‘mixed questions of fact and law’ stand outside an appeal on a question of law.…’[18]Another useful statement appears in Frugtniet v Australian Securities and Investments Commission, as follows:‘In Repatriation Commission v Hill … the Full Court comprising Black CJ, Drummond and Ryan JJ said:‘[A] decision cannot be the subject of an appeal under s 44(1) of the Administrative Appeals Tribunal Act 1975 (“AAT Act”), unless, in making it, the Tribunal has acted otherwise than in accordance with the law. If a tribunal falls into an error of law ‘which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers’… An error of law of this kind may support an appeal under s 44 of the AAT Act on a question of law…’As explained by the Full Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd…, whose comments were subsequently adopted by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang… the Court will not be concerned with looseness in the language of a tribunal nor with unhappy phrasing of a tribunal’s thoughts. Further, the Court will not construe the reasons for the decision under review ‘minutely and finely with an eye keenly attuned to the perception of error’.” (citations omitted)

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.