Barney v Director-General, Department of Justice and Attorney-General [2026] QCATA 21

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Kerry-Lyn Barney v Director-General, Department of Justice and Attorney-General [2026] QCATA 21 PARTIES: KERRY-LYN BARNEY (applicant) v DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL (respondent) APPLICATION NO/S: APL330-24 MATTER TYPE: Appeals DELIVERED ON: Date of Decision: 30 July 2025 Date of Publication of Reasons: 5 February 2026 HEARING DATE: Heard on the papers HEARD AT: Brisbane DECISION OF: Justice Mellifont, President ORDERS: The application for leave to appeal or appeal filed on 29 October 2024 is dismissed pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’) on the basis the Appeal Tribunal lacks jurisdiction to determine the application. The request for the matter to be transferred under s 144 of the QCAT Act is declined. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where an appeal of a decision made by a judicial member was filed in QCAT – whether an appeal application filed in QCAT can be transferred to the Court of Appeal pursuant to s 144 of the QCAT Act Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 52, s 144 Victorian Civil and Administrative Tribunal Act 1998 (Vic) Wurzel v Francis Ryan [2003] VCAT 469 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) -- 1 of 6 -- 2 REASONS FOR DECISION Synopsis [1] QCAT has an appeals jurisdiction which includes appeals from decisions made at first instance by Adjudicators and QCAT Members who are not judicial members. When QCAT sits on these appeals, it sits as the QCAT Appeals Tribunal (‘QCATA’). It does not have jurisdiction to sit on appeals from decisions made at first instance by members who are judicial members.1 [2] On or about 29 October 2024, Ms Barney filed an application for leave to appear or appeal at QCAT (‘the application’). This application was in respect of a decision made at first instance by a judicial member,2 and thus a matter in respect of which QCATA has no jurisdiction. [3] Ms Barney received correspondence from QCAT notifying that her application to commence proceedings had been received and was allocated a case number.3 QCAT issued directions to progress the matter, including the filing of material and submissions.4 [4] Subsequently, Ms Barney’s representative wrote to QCAT, wishing to bring QCAT’s attention that QCAT does not have jurisdiction to hear the application.5 QCAT is grateful to that practitioner for doing so as that had not been identified by QCAT by that time. By that correspondence, Ms Barney sought a transfer of the application to the Court of Appeal pursuant to section 144 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). [5] In consequence, the respondent sought a stay of the proceeding pending the issues raised by Ms Barney’s representative, and requested QCAT to dismiss the proceeding and decline the transfer request.6 Thereafter the matter came before me for consideration. [6] On 30 July 2025, I made the following decision: (a) the application for leave to appeal or appeal filed on 29 October 2024 is dismissed pursuant to s 47 of the QCAT Act on the basis the Appeal Tribunal lacks jurisdiction to determine the application; and (b) the request for the matter to be transferred under s 144 of the QCAT Act is declined. [7] Ms Barney’s representative then requested written reasons for the decision.7 [8] These are the reasons for my decision. 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(1). 2 LC v Director General, Department of Justice & Attorney General [2024] QCAT 415. The decisions and reasons were received by the parties on 1 October 2024. 3 The correspondence from QCAT is dated 30 October 2024. 4 The order of the Appeal Tribunal dated 11 December 2024. 5 The email from Ms Barney’s representative to QCAT is dated 12 May 2025. 6 The respondent filed an application on 11 June 2025. 7 QCAT received a Request for Reasons on or about 15 August 2025. -- 2 of 6 -- 3 Section 144 of the QCAT Act [9] Section 144 provides: (1) This section applies if the president considers that— (a) an appeal made to the appeal tribunal under this division could be more effectively or conveniently dealt with by the Court of Appeal; and (b) it would be appropriate for the appeal to be transferred to the Court of Appeal. (2) The president may transfer the appeal to the Court of Appeal with the court’s leave. (3) If the president transfers the appeal to the Court of Appeal under subsection (2)— (a) the appeal is taken to have been started before the Court of Appeal when it was started before the tribunal; and (b) the president may make the orders or give the directions the president considers appropriate to facilitate the transfer, including an order that a party is taken to have complied with the requirements under an Act or other law for starting an appeal before the Court of Appeal. (4) An order under subsection (3)(b)— (a) is taken to be an order of the tribunal; and (b) has effect despite any other Act or law. [10] In my view, section 144 does not permit transfer of a proceeding in respect of which QCATA has no jurisdiction. [11] The first precondition to the section 144 power is that the President of QCAT considers that ‘an appeal made to the appeal tribunal under this division could be more effectively or conveniently dealt with by the Court of Appeal.’ [12] This wording requires that the appeal to be ‘made to’ QCATA. An appeal can only be ‘made to’ QCATA if QCATA has jurisdiction to hear the appeal. [13] The wording also requires the President to form the view that the appeal could be ‘more effectively or conveniently dealt with by the Court of Appeal’.8 The use of the word ‘more’ imports a requirement of comparison, that is, QCAT could deal with the appeal, but the Court of Appeal could deal with more effectively or conveniently. Here, QCAT could not deal with the appeal at all. 8 The Explanatory Memorandum to the Queensland Civil and Administrative Tribunal Bill 2009 in respect of the clause which ultimately came to be section 144 stated: Clause 144 enables the president to transfer an appeal to the Court of Appeal if the president is of the view that the appeal could be more effectively or appropriately dealt with by the Court and it would be appropriate for the appeal to be transferred. However, the president may only transfer an appeal with the leave of the Court of Appeal. If the appeal is transferred, it is taken to have commenced in the Court of Appeal at the time it was started in the tribunal. The president may make orders to give directions to facilitate the transfer and these orders are taken to be orders of the tribunal. -- 3 of 6 -- 4 [14] I do not consider that s 144 of the QCAT Act applies in respect of application which has been filed in the incorrect jurisdiction. [15] My decision is also consistent with that of Vice President Bowman in Wurzel v Francis Ryan & Ors.9 In that case, Vice President Bowman ruled that the Tribunal did not have jurisdiction in respect of the proceeding, and further held that there was no power to transfer the proceeding to the Supreme Court pursuant to section 77(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). Section 77(1) provides: At any time, the Tribunal may make an order striking out all, or any part, of a proceeding (other than a proceeding for review of a decision) if it considers that the subject-matter of the proceeding would be more appropriately dealt with by a tribunal (other than the Tribunal), a court or any other person or body. [16] In so finding, Vice President Bowman stated:10 It is to be noted that what is considered by the Tribunal is the subject-matter of the proceeding. In other words, what the Tribunal considers is the content of the proceeding, which would embrace such things as complexity, quantum, and the like, as referred to above. If the Tribunal considers that such subject-matter would be more appropriately dealt with elsewhere, it may make the order striking out the proceeding, and it may make a referral pursuant to s.77(3). This is a considerably different proposition from referring a matter where there is a want of jurisdiction. In addition, it seems to me that the words "other than the Tribunal", appearing in the context which they do, arguably infer a capacity on the part of the Tribunal to deal with the proceeding or matter. What the wording seems to me to be saying is that there are a number of courts or tribunals, including the Tribunal, which could deal with the proceeding, but, given the subject matter of the proceeding, it is more appropriate that it be dealt with by a court or tribunal other than the Tribunal. … The whole intent of s.77 seems to me to be to provide the opportunity for use of a more convenient or appropriate forum. It does not appear to have been intended for use as a vehicle for the referral of proceedings where no jurisdiction has been found to exist. Section 52 of the QCAT Act [17] In coming to my decision, I also considered section 52 of the QCAT Act. [18] Section 52 provides: (1) If the tribunal considers the subject matter of a proceeding or part of a proceeding would be more appropriately dealt with by another tribunal, a court or another entity, the tribunal may, by order, transfer the matter to which the proceeding or part relates to the other tribunal, the court or other entity. (2) If the tribunal considers it does not have jurisdiction to hear all matters in a proceeding, the tribunal may, by order, transfer the matter or matters for which it does not have jurisdiction— 9 [2003] VCAT 469. 10 Wurzel v Francis Ryan & Ors [2003] VCAT 469, [7(c)], [7(e)]. -- 4 of 6 -- 5 (a) court of competent jurisdiction; or (b) another tribunal or entity having jurisdiction to deal with the matter or matters. (3) The tribunal may make an order under subsection (2)(a) even though the proceeding has previously been transferred from a court to the tribunal under section 53. (4) If the tribunal transfers a matter to another tribunal, a court or another entity (the relevant entity) under this section— (a) a proceeding for the matter is taken to have been started before the relevant entity when it was started before the tribunal; and (b) the tribunal may make the orders or give the directions it considers appropriate to facilitate the transfer, including an order that a party is taken to have complied with the requirements under an Act or other law for starting a proceeding before the relevant entity. (5) An order under subsection (4)(b) has effect despite any other Act or law. (6) The tribunal may act under this section on the application of a party to the proceeding or on its own initiative. (7) The tribunal’s power to act under this section is exercisable only by a legally qualified member. (8) In this section— proceeding includes a process for the consideration of a matter. [19] It also uses the word ‘more’, that is, it contains the requirement that the tribunal considers that it would be ‘more appropriate’ that the subject matter of a proceeding or part of a proceeding be dealt with by another tribunal. [20] Further, section 52(2) includes the words ‘does not have jurisdiction to hear all matters’. The inclusion of the word ‘all’ necessarily implies that the tribunal must have jurisdiction for at least one of the subject matters of the proceeding. [21] In considering this question, I reviewed the Explanatory Memorandum to the Queensland Civil and Administrative Tribunal Bill 2009. In respect of the clause which ultimately came to be section 52 of the QCAT Act, it states: Clause 52 empowers the tribunal to order that a matter be transferred to another tribunal, a court or another entity if the matter could more appropriately be dealt with by that body. It also enables the tribunal to transfer a matter if the tribunal considers it does not have jurisdiction to decide the matter. This provision does not confer any additional jurisdiction on the courts or other tribunals or entities and cannot be utilised if the tribunal has exclusive jurisdiction for the matter. An example of when it may be more appropriate for a court to hear a matter and for the tribunal to make a transfer order is where a related cause of action is on foot in the court, the issues in dispute in the court and the tribunal matters are intertwined and the tribunal did not have the jurisdiction to make all the orders being sought in the the [sic] matter. [22] The statement that clause 52 empowers the tribunal to transfer a matter if the tribunal considers it does not have jurisdiction to decide the matter appears to me to be a reference to a want of jurisdiction with respect to a matter within the proceeding, not a want of jurisdiction with respect to the entire proceeding. So much is plain from the -- 5 of 6 -- 6 example given later in the extract to the jurisdiction not having power to ‘make all the orders being sought’ in the matter. [23] Section 52 therefore does not assist Ms Barney because, as for section 144, its exercise can only arise if the Tribunal has at least some jurisdiction in respect of the proceeding filed in the Tribunal. Conclusion [24] There being no jurisdiction in QCAT in respect of the application filed by Ms Barney: (a) that application is dismissed; and (b) the request for the matter to be transferred under s 144 of the QCAT Act is declined. -- 6 of 6 --