Shorten v Bell-Gallie

[2014] QCA 57

SUPREME COURT OF QUEENSLAND

CITATION:

Shorten v Bell-Gallie & Anor [2014] QCA 57

PARTIES:

IAN RODGER WILLIAM SHORTEN
(applicant/appellant)
v
SHIRLEY BELL-GALLIE
(first respondent)
BRISBANE QCAT REGISTRY
(second respondent)

FILE NOS:

Appeal No 11869 of 2013
QCAT No 1 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application – Civil

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal at Brisbane

DELIVERED ON:

28 March 2014

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGE:

Holmes JA

ORDER:

Remove the second respondent from the application for leave to appeal.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – PARTIES – OTHER MATTERS – where the applicant seeks leave to appeal a decision of the Appeal Tribunal of the Queensland Civil and Administrative Tribunal – where the named second respondent is neither a legal entity nor a party to the tribunal application – where the applicant seeks to substitute as respondents the tribunal members who made the decision appealed from – whether the tribunal members are "directly affected by the relief sought" or "interested in maintaining the decision under appeal" – whether the second respondent should be removed as a party – whether the tribunal members should be substituted as respondents

Uniform Civil Procedure Rules 1999 (Qld), r 69(1)(a), r 749(1)

R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13, cited

COUNSEL:

No appearance for the applicant, the applicant’s submissions were heard on the papers
No appearance for the first respondent
No appearance for the second respondent, the second respondent’s submissions were heard on the papers

SOLICITORS:

No appearance for the applicant, the applicant’s submissions were heard on the papers
No appearance for the first respondent
No appearance for the second respondent, the second respondent’s submissions were heard on the papers

1. HOLMES JA:  An issue has arisen in this case as to the naming of the “Brisbane QCAT Registry” as second respondent to the application for leave to appeal.  The parties have agreed that the court should resolve it on the papers.

1. The applicant for leave, Mr Shorten, wished to challenge the appointment of the named first respondent, Ms Bell-Gallie, as administrator of the affairs of a disabled person.  He unsuccessfully sought to appeal to the Appeal Tribunal of the Queensland Civil and Administrative Tribunal against a tribunal member’s decision to deal with his application for review on the papers and not to proceed to a hearing of it.  The tribunal member had applied a practice direction, the effect of which was that, in the absence of new information arising since the administrator’s appointment, no review should be conducted until its expiry.  Mr Shorten seeks leave to appeal the Appeal Tribunal’s decision on broadly expressed grounds asserting a failure to apply precedent and legislation and a misinterpretation of the practice direction.  There seems to be an allied ground to the effect that he should not have been refused leave to adduce new evidence before the Appeal Tribunal.

1. Rule 749(1) of the Uniform Civil Procedure Rules provides:

“749      Parties to appeal

(1)Each party to a proceeding who is directly affected by the relief sought in the notice of appeal or who is interested in maintaining the decision under appeal must be made a respondent to the appeal.

(2)The notice of appeal need not be served on a party who is not made a respondent to the appeal.”

1. Submissions have been filed by the Crown Solicitor in relation to the naming of the second respondent, pointing out that the Brisbane QCAT Registry is not a legal entity and was not, in any event, a party to any proceedings.  That is patently correct.

1. The applicant submits that the senior member and member who made the decision appealed against should be substituted as second and third respondent.  His reasons are that he has sought a declaration that he was “subjected to some deplorable handling by QCAT judicial staff of his directions hearings” and that because the first respondent is not prepared to participate in the appeal, a second respondent should be named whom Crown Law will represent, in the process carrying out necessary steps such as the settling of the appeal record index.

1. Neither of those propositions provides any basis for naming the members of the appeal tribunal as respondents.  They were not parties; they are not “directly affected by the relief sought”; and, no doubt, were they named, they would, in accordance with the Hardiman principle,[1] simply abide the order of the court.  If the presently named first respondent does not want to take any active part on the application, the necessary steps will have to be taken without her; the Crown Solicitor cannot be dragooned for the sake of convenience.

   [1]R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13.

1. The Crown Solicitor also sought to have a notice of address for service and submissions, filed under the misapprehension (no longer held) that it ought to appear on behalf of the named second respondent, removed from the record.  Nothing in the submissions convinces me that there is any reason to interfere with the record.  Since the second respondent will no longer be a party, neither document, so far as I can see, will have any significance.  If there is some reason of substance for their removal, the application can be renewed.

1. Pursuant to r 69(1)(a) of the Uniform Civil Procedure Rules, I order the removal of the second respondent from the application for leave to appeal.