Crossman v Department of Transport and Main Roads [2018] QCAT 60

CITATION: Crossman v Department of Transport and Main Roads [2018] QCAT 60 PARTIES: Ian Norman Crossman (Applicant) v Department of Transport and Main Roads (Respondent) APPLICATION NUMBER: GAR175-17 MATTER TYPE: General administrative review matters HEARD AT: Brisbane DECISION OF: Member Howe DELIVERED ON: 5 March 2018 DELIVERED AT: Brisbane ORDERS MADE: The application for review is dismissed. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where application to review decision of department – where respondent made application to strike out review application – where no identified reviewable decision – where no entitlement to internal review and consequently no entitled to external review in the tribunal – where the tribunal does not have jurisdiction – where the proceedings should not progress further Transport Operations (Road Use Management) Act 1995 (Qld), s 65(1), s 65A(2), s 68, Schedule 3 Transport Operations (Road Use Management) Regulation 2009 (Qld), reg 23 Fraser Property Developments Pty Ltd v Sommerfeld (No 1) [2005] QCA 134 Wall v the King; ex parte King Won (1927) 39 CLR 245; [1927] HCA 4 McGarry v Coates [2013] QCATA 32 APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). -- 1 of 3 -- 2 REASONS FOR DECISION [1] Mr Crossman is a driver for a passenger transport company in Cairns. [2] He is long troubled by serious traffic delays he says is due to a school zone on Sheridan Street, a busy multi-lane road in Cairns travelling north, at Mother of Good Counsel School. The zone has been in place there since 2013. [3] He challenges the validity of the department’s decision to include this school on a busy multi-lane road as a trial site in the Queensland Schools Zone program. He says he has raised the matter in proceedings in both the District and Magistrates Courts and has now commenced proceedings in the tribunal seeking review of the department’s decision to site the school zone where it is. [4] The department has in turn brought an application to strike out Mr Crossman’s application to review on the grounds the tribunal has no jurisdiction in the matter. The department has also applied for legal representation in the proceedings. [5] In his initiating application Mr Crossman describes the decision he wants reviewed as the decision to include the trial site at Mother of Good Counsel school Sheridan Street in the Queensland School Zones program. He gives no date for the decision other than to say it happened sometime between January and May 2013. [6] The parties were ordered to file submissions as to the tribunal’s jurisdiction in the matter. [7] The department says the decision Mr Crossman wants reviewed is the chief executive’s decision under s 68 of the Transport Operations (Road Use Management) Act 1995 (Qld) (TORUM) to install an official traffic sign on a road. By reg 23 of the Transport Operations (Road Use Management) Regulation 2009 (Qld) a school zone is that length of road where there is a school zone sign and an end school zone sign and the speed limit applying is the speed indicated on the school zone sign. [8] Mr Crossman does not challenge the department’s assertion. I conclude that is the decision which Mr Crossman wants the tribunal to review. [9] By s 65(1) of TORUM a person whose interests are affected by a decision described in Schedule 3 of that Act may seek internal review of the decision. By s 65A(2) an applicant for internal review who does not accept the decision made in internal review may then apply to the tribunal for a review of the reviewed decision. [10] Schedule 3 lists all the reviewable internal decisions possible under the legislation and by extension external review possible by the tribunal. A decision of the chief executive under s 68 is not included in the list of matters nominated in Schedule 3. -- 2 of 3 -- 3 [11] The result of that is that a person affected by a decision under s 68 has no entitlement under the legislation to request an internal review of the decision. What follows from that is that there is no entitlement to seek external review in the tribunal where there is no entitlement to internal review provided for in the legislation. [12] There is no general power in the tribunal to review administrative decisions other than as specifically provided for in legislation enlivening the tribunal’s review functions. The tribunal is a court of record1 but it is not a superior court of general jurisdiction. A superior court may be presumed to be able to act within jurisdiction, but there is no such presumption with an inferior court. As stated in Fraser Property Developments Pty Ltd v Sommerfeld (No 1): Nothing shall be intended to be out of the jurisdiction of a superior court, but that which specially appears to be so; and, on the contrary, nothing shall be intended to be within the jurisdiction of an inferior court but that which is so expressly alleged.2 [13] Mr Crossman offered no statutory or specific legal basis to support his contention that the tribunal had jurisdiction to review the chief executive’s decisions about school zones. He simply submitted that the tribunal should not shy away from its “constitutional responsibility under the threat of creating an undesirable precedent”. The tribunal has only the powers granted it by enabling legislation. No enabling legislation exists to allow the tribunal to review decisions of the department about the location of Queensland School Zones sites. [14] Given lack of jurisdiction has been identified it is not appropriate to allow the matter to continue any further in the tribunal. “… Whether the want of jurisdiction appears at once or only at a later stage, the moment it does appear the Court … must hold its hand.”3 [15] The tribunal has no alternative but to dismiss Mr Crossman’s application for review. Given that, it is unnecessary to determine the department’s application for legal representation. 1 QCAT Act, s 164. 2 [2005] QCA 134, [23]. 3 Wall v the King; ex parte King Won [1927] HCA 4; (1927) 39 CLR 245 and cited with approval in McGarry v Coates [2013] QCATA 32, [6] -- 3 of 3 --