Reihana v Davern & Anor - [2014] QSC 127

SUPREME COURT OF QUEENSLAND

CITATION:

Reihana v Davern & Anor[2014] QSC 127

PARTIES:

TONI COLIN REIHANA
(applicant)

v

TREVOR DAVERN (ADJUDICATOR)
(first respondent)

BEENLEIGH SHOW SOCIETY
(second respondent)

FILE NO/S:

BS 9724/13

DIVISION:

Trial

PROCEEDING:

Originating Application

DELIVERED ON:

12 June 2014

DELIVERED AT:

Brisbane

HEARING DATE:

30 May 2014

JUDGE:

Alan Wilson J

ORDER:

Application dismissed

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the applicant seeks judicial review of a decision of an adjudicator of the Queensland Civil and Administrative Tribunal – where the applicant alleges that the adjudicator failed to consider one aspect of relief sought in his application by making the decision to adjourn the proceeding so that it could go to a compulsory conciliation conference – where s 156 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) precludes the application of the Judicial Review Act 1991 (Qld) to decisions of the Queensland Civil and Administrative Tribunal unless there is jurisdictional error – where there is an issue as to whether the adjudicator’s decision demonstrates jurisdictional error – where the Queensland Civil and Administrative Tribunal has an internal appeals process which the applicant failed to use – where there are doubts as to whether an internal appeal would have been successful – where the application for judicial review was in any event made out of time – whether judicial review of the decision should be available

Judicial Review Act 1991 (Qld), s 26
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 114, s 127, s 146, s 147, s 156, Part 8 Division 1, Schedule 3
Queensland Civil and Administrative Tribunal Rules 2009, r 88
Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 291, s 416

Craig v South Australia (1995) 184 CLR 163, considered
Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531, considered
Medical Board of Australia v Judge Horneman-Wren & Leggett [2013] QSC 339, considered

COUNSEL:

Mr Reihana appeared on his own behalf

No appearance for the first respondent

Ms A Laylee, solicitor, for the second respondent

SOLICITORS:

McCarthy Durie Lawyers for the second respondent

Wilson J: Mr Reihana seeks judicial review of a decision of a QCAT[1] Adjudicator, Mr Davern, in a Tribunal matter which arose out of tenancy proceedings involving caravans on Beenleigh showgrounds.[2]
[1]Queensland Civil and Administrative Tribunal.
[2]I had a recollection of some earlier involvement with the matter while QCAT President but could not recall the circumstances. Mr Reihana said that he wrote to me in that capacity with a complaint about the adjudicator’s conduct, and the matter generally, and I replied saying his complaint could not be addressed until the proceedings had finished. Neither of the parties who appeared (Mr Reihana, and the Show Society) objected to my dealing with the matter and, in light of the paucity of my memory about what happened in it during my term as QCAT President and Mr Reihana’s information about what had transpired in the…

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.

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Details

Case: [2014] QSC 127
Decision Date: 12 June 2014

CaseChat Overview and Summary

Reihana applied for judicial review of a decision made by an adjudicator of the Queensland Civil and Administrative Tribunal (QCAT). Reihana alleged that the adjudicator made an error by not considering one aspect of the relief sought in his application when deciding to adjourn the proceeding to a compulsory conciliation conference. The application was made on the basis that section 156 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) precluded the application of the Judicial Review Act 1991 (Qld) to decisions of QCAT unless there was a jurisdictional error. The court had to determine whether the adjudicator’s decision demonstrated a jurisdictional error and whether the internal appeals process of QCAT should have been used before seeking judicial review.

The court found that there was no jurisdictional error in the adjudicator’s decision to adjourn the proceeding to a compulsory conciliation conference. The adjudicator had considered the relief sought by Reihana and made a decision within their jurisdiction. The court also found that Reihana should have used QCAT’s internal appeals process before seeking judicial review. The court considered that an internal appeal may have been successful, and therefore, the application for judicial review was made out of time. The court held that the application for judicial review was dismissed as there was no jurisdictional error and the internal appeals process was not used.

In conclusion, the court found that the adjudicator’s decision did not demonstrate a jurisdictional error and that the internal appeals process of QCAT should have been used before seeking judicial review. The application for judicial review was dismissed, and the decision of the adjudicator was upheld.

Orders

Orders of the court

Application 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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Reihana v Davern & Anor[2014] QSC 127
PARTIES:	TONI COLIN REIHANA (applicant) v TREVOR DAVERN (ADJUDICATOR) (first respondent) BEENLEIGH SHOW SOCIETY (second respondent)
FILE NO/S:	BS 9724/13
DIVISION:	Trial
PROCEEDING:	Originating Application
DELIVERED ON:	12 June 2014
DELIVERED AT:	Brisbane
HEARING DATE:	30 May 2014
JUDGE:	Alan Wilson J
ORDER:	Application dismissed
CATCHWORDS:	ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the applicant seeks judicial review of a decision of an adjudicator of the Queensland Civil and Administrative Tribunal – where the applicant alleges that the adjudicator failed to consider one aspect of relief sought in his application by making the decision to adjourn the proceeding so that it could go to a compulsory conciliation conference – where s 156 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) precludes the application of the Judicial Review Act 1991 (Qld) to decisions of the Queensland Civil and Administrative Tribunal unless there is jurisdictional error – where there is an issue as to whether the adjudicator’s decision demonstrates jurisdictional error – where the Queensland Civil and Administrative Tribunal has an internal appeals process which the applicant failed to use – where there are doubts as to whether an internal appeal would have been successful – where the application for judicial review was in any event made out of time – whether judicial review of the decision should be available Judicial Review Act 1991 (Qld), s 26 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 114, s 127, s 146, s 147, s 156, Part 8 Division 1, Schedule 3 Queensland Civil and Administrative Tribunal Rules 2009, r 88 Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 291, s 416 Craig v South Australia (1995) 184 CLR 163, considered Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531, considered Medical Board of Australia v Judge Horneman-Wren & Leggett [2013] QSC 339, considered
COUNSEL:	Mr Reihana appeared on his own behalf No appearance for the first respondent Ms A Laylee, solicitor, for the second respondent
SOLICITORS:	McCarthy Durie Lawyers for the second respondent