Barns v Commissioner, Queensland Fire & Emergency Services [2017] QCAT 263

CITATION: Barns v Commissioner, Queensland Fire & Emergency Services [2017] QCAT 263 PARTIES: James Thomas Barns Lynette Joy Barns (Applicants) v Commissioner, Queensland Fire & Emergency Services (Respondent) APPLICATION NUMBER: GAR028-17 MATTER TYPE: General administrative review matters HEARING DATE: 31 July 2017 HEARD AT: Brisbane DECISION OF: Member Olding DELIVERED ON: 7 August 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. The Respondent’s application to strike out a proceeding, filed on 22 May 2017, is dismissed. 2. Each party is to bear their own costs of the application. 3. The application for review is to be listed for a directions hearing at a date to be advised. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where Commissioner decided not to accept late application for compensation – whether Tribunal has jurisdiction to review decision Acts Interpretation Act 1954 (Qld), s14A, s 14B, s 35 Disaster Management Act 2003 (Qld), s 125 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 -- 1 of 13 -- 2 Dyankov v Minister for Immigration and Border Protection [2017] FCAFC 81 The Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc (1994) 181 CLR 404 APPEARANCES: APPLICANT: James Thomas Barns and Lynette Joy Barns RESPONDENT: Commissioner, Queensland Fire & Emergency Services REPRESENTATIVES: APPLICANT: represented by Ms K M Riedel of Counsel, instructed by Condon Charles Lawyers RESPONDENT: represented by Mr M J Woodford of Counsel, instructed by Crown Law REASONS FOR DECISION [1] A person who suffers loss or damage because of the exercise or purported exercise of certain powers under the Disaster Management Act 2003 (Queensland) (“the Disaster Management Act”)1 is, subject to certain conditions, entitled to be paid just and reasonable compensation under that Act.2 [2] An application for compensation must be made to the Respondent Commissioner within 90 days after the loss or damage is suffered.3 However, the Commissioner may accept an application made more than 90 days after the loss or damage is suffered if satisfied that it would be reasonable to do so.4 [3] The Applicants, Mr and Mrs Barns, applied to the Commissioner for such compensation. Their application was made outside the 90-day period. The Commissioner, not being satisfied that it was reasonable to accept the late application, did not accept, and therefore did not consider, the application or pay any compensation. [4] The Commissioner says the only decision that has been made is to not accept the late application. The Tribunal does not have jurisdiction to review that decision, the Commissioner says, and therefore the Applicants’ application for review should be struck out. 1 All legislative references are to the Disaster Management Act, unless otherwise indicated. 2 Section 121(1). 3 Section 121(2). 4 Section 121(5). -- 2 of 13 -- 3 [5] The Applicants argue that the Tribunal does have jurisdiction and therefore the Commissioner’s application to strike out their application for review should be dismissed, and also that the Commissioner should pay their costs of the strike out application. [6] I have decided that the Tribunal does have jurisdiction to hear and decide the application for review and therefore the strike out application should be dismissed, but that the Applicants are not entitled to costs. My reasons follow. Legislative framework [7] The only source of the Tribunal’s jurisdiction to review the Commissioner’s compensation decisions is section 125 of the Disaster Management Act, which reads: 125 Review of a decision to pay compensation An applicant for the payment of compensation under this division who is dissatisfied with the chief executive’s decision to refuse to pay compensation or about the amount of compensation may apply, as provided under the QCAT Act, to QCAT for a review of the decision. [8] The question for determination is whether the Commissioner’s decision not to accept Mr and Mrs Barns’ application, which had the consequence of no compensation being considered or paid, is a “decision to refuse to pay compensation”. [9] This question must be considered in the context of the surrounding provisions of the Act, which include those extracted below. [10] Section 121 relevantly provides: 121 Applying for compensation (1) A person who suffers loss or damage because of the exercise, or purported exercise, of a power under section 77, 78, 111 or 112 may apply to the chief executive for compensation for the loss or damage. (2) The application must be made in writing within 90 days after the person suffers the loss or damage. (3) . . . (4) . . . (5) Despite subsection (2), the chief executive may accept a person’s application for compensation made more that 90 days after the person suffers the loss or damage if the chief executive is satisfied it would be reasonable in all the circumstances to accept the application. [11] Section 123 provides: -- 3 of 13 -- 4 123 Deciding application (1) The chief executive must consider and decide an accepted application within 60 days after the last of the following to happen- (a) the chief executive receives the application; (b) the chief executive receives all necessary information to decide the application. (2) If the chief executive has not decided an accepted application within the period stated in subsection (1) for the application, the chief executive is taken to have refused to pay compensation. (3) In this section- accepted application means an application made under section 121(2) or an application the chief executive accepts under section 121(5). [12] Section 124 provides: 124 Notice about decision As soon as practicable after deciding the application, the chief executive must give the applicant a written notice stating all of the following- (a) the decision and the reasons for it; (b) if the chief executive decides to pay compensation- (i) details of the amount and how the amount was assessed; and (ii) if the amount is less than the amount claimed– the matters mentioned in the QCAT Act, section 157(2)(c) to (e); (c) if the chief executive decides not to pay compensation- the matters mentioned in the QCAT Act, section 157(2)((c) to (e). Summary of the Commissioner’s submissions [13] The Commissioner’s argument is straightforward: (1) For late applications, the provisions create a two-step process requiring two distinct decisions. (2) First, the Commissioner as chief executive decides under s 121(5) whether to accept the late application. (3) Next, if the Commissioner decides to accept the late application, the Commissioner must consider and decide the application. (4) This, so the argument goes, is clear from s 123, which is only concerned with “accepted applications”, an expression defined in -- 4 of 13 -- 5 s 123(3) to mean a late application that the chief executive accepts (and applications lodged on time). (5) The Commissioner argues that there is no provision for the Tribunal to review of the first decision – whether to accept a late application – because a decision not to accept a late application is not, according to the Commissioner, a decision to refuse to pay compensation. (6) Only the second decision – whether to pay compensation, and if so how much, in relation to an accepted application – has that character, according to the Commissioner. Summary of Applicants’ submissions [14] The Applicants argue that, considered in its context, the expression “decision to refuse to pay compensation” in section 125 covers any case where an applicant applies for compensation and does not receive it, whether because the application was considered and refused or, as in this case, it was not accepted as a late application. Construction of section 125 [15] This matter raises a difficult question of statutory construction. [16] As the High Court regularly reiterates,5 the construction of section 125 is to be derived from its text, context and purpose. Textual and contextual considerations [17] The Commissioner’s argument has considerable force. Taken together, in the order the provisions appear, the more natural reading is that: (1) Section 123 requires the Commissioner to consider and decide an “accepted application”; (2) As soon as possible after deciding “the application” – that is, as the Commissioner would say, the accepted application referred to in the immediately preceding section – section 124 requires notice of “the decision” to be given – again, the decision on the accepted application referred to in the immediately preceding section; and (3) Section 125 provides a review right for “the chief executive’s decision to refuse to pay compensation or about the amount of the compensation” – that is, the decision on the accepted application 5 Reiterated recently by Nettle J in Talacko v Bennett [2017] HCA 15, [82]. See also the authorities referenced by his Honour at footnote 85. -- 5 of 13 -- 6 referred to in section 123 and, as the argument goes, also in section 124. [18] There is, though, an alternative construction of the provisions that is reasonably open. On a broader reading of section 125, where an applicant makes an application for compensation outside the 90-day period, which the Commissioner declines to accept, the Commissioner could be said to “refuse to pay compensation”. Certainly, from an applicant’s perspective, the applicant has applied for compensation and the Commissioner has declined (refused) to pay it. [19] In favour of that construction, section 125 refers to an “applicant”, which is not defined. Referring back to section 121, an applicant must be a person who applies for compensation. There is nothing in the terms of section 125 that expressly limits it to applicants who claim within the 90-day period. A late applicant is an applicant. [20] Further, section 125 uses the phrase “refuse to pay compensation” whereas in section 124 the expression “decides not to pay compensation” appears. Ordinarily, but not always, it is to be expected that when the legislature uses different expressions this will point to an intention that the expressions have different meanings. Although not determinative, this favours the Applicants’ construction, that is, that section 125 is not limited to decisions under section 124 “not to pay compensation”. [21] Ms Riedel, who appeared for the Applicants, noted that headings to a section of an Act form part of the section.6 The heading to section 125 – “Review of a decision to pay compensation” – is misleading or at least incomplete, since the section is about decisions to refuse to pay compensation or the amount of compensation. In referring to a “decision” it provides some little support for the Commissioner’s construction based on the sequential reading of the provisions, but is otherwise unhelpful. Purpose [22] An interpretation of a provision that will best achieve the purpose of an Act is to be preferred to any other interpretation.7 [23] In that regard, Ms Riedel pointed to sections 3, 4 and 5 of the Disaster Management Act, which set out respectively the main objects of the Act, how the objects are to be primarily achieved and guiding principles according to which the Act is to be administered. [24] Ms Riedel particularly noted that: (1) The main objects include to “help communities . . . effectively respond to, or recover from, a disaster or an emergency situation”.8 6 Acts Interpretation Act 1954 (Queensland) (“Acts Interpretation Act”), s 35C(1). 7 Acts Interpretation Act, s 14A. 8 Section 3(a)(iii). -- 6 of 13 -- 7 The cognate expression “recovering from a disaster” is defined to include “providing relief measures to assist persons affected by the disaster who do not have the resources to provide for their own financial and economic wellbeing”;9 (2) How the objects are to be primarily achieved includes making provision about “ensuring communities receive appropriate information about preparing for, responding to and recovering from a disaster”;10 and (3) The guiding principles include that disaster management should be planned across four phases, the third and fourth of which respectively include taking appropriate measures “to respond to an event, including action taken and measures planned in anticipation of, during, and immediately after an event to ensure that its effects are minimised and that persons affected by the event are given immediate relief and support”11 and appropriate measures “to recover from an event, including action taken to support disaster-affected communities in the reconstruction of infrastructure, the restoration of emotional, social, economic and physical wellbeing . . .”12 [25] I do not, with respect, find reference to those objects and how they are to be achieved, or the guiding principles, particularly helpful in construing section 125. Neither construction would be inconsistent with these provisions. The nature of the review available for compensation is considerably removed from these factors. The most that could be said is that the Applicants’ construction is more favourable to those recovering from disasters. Legislative history [26] The Tribunal’s jurisdiction in compensation matters under the Disaster Management Act was introduced by an amendment to the Act contained in the Queensland Civil and Administrative Tribunal (Jurisdictional Provisions) Amendment Act 2009 (Queensland).13 [27] Before the amendment, subdivision 3 included the following provisions: 125 Who may appeal An applicant for the payment of compensation under this division who is dissatisfied with the chief executive’s decision to refuse to pay compensation or about the amount of compensation may appeal against the decision. 126 Starting an appeal 9 Schedule, “recovering from a disaster”. 10 Section 4(c). 11 Section 4A(a)(iii). 12 Section 4A(a)(iv). 13 Queensland Civil and Administrative Tribunal (Jurisdictional Provisions) Amendment Act 2009 (Queensland), s 99 – s 101. -- 7 of 13 -- 8 (1) An appeal may be started at– (a) the Magistrates Court nearest the place where the person lives or carries on business; or (b) a Magistrates Court at Brisbane. (2) The notice of appeal . . . must be filed with the registrar of the court within 28 days after- (a) if the person is given notice of the decision under section 124– the day the person is given the notice; or (b) if paragraph (a) does not apply– the day the person otherwise becomes aware of the decision. (3) . . . [28] Ms Riedel submitted that these provisions allowed for an appeal to the Magistrates Court in respect of both a decision on the application for compensation and a decision not to accept a late application. [29] I understood this submission to be made on the basis that a decision not to accept a late application would be covered by s 126(2)(b) – and therefore must have been covered by the then section 125 – because such decisions were not covered by the section 124 requirement to give a notice of a decision. Since section 125 in both its former and current form adopted the phrase “refuse to pay compensation”, it would follow, on this view, that the current provision extends to a decision not to accept a late application. [30] The difficulty with this submission is that the then section 126 was itself susceptible to more than one interpretation. Contrary to Ms Riedel’s submission that s 126(2)(b) covered cases where no notice is required, Mr Woodford submitted that it only applied where notice of a decision on an accepted application, although required by section 124, was not in fact given, but the person “otherwise becomes aware of the decision”. [31] Neither counsel identified any decision or material that would cast light on the construction of the former section 126. [32] In the end, I have drawn little assistance from the legislative history. The key provision – section 125 – is relevantly in the same terms in its current and former forms. Extrinsic materials [33] Section 125 being ambiguous, as I accept, Ms Riedel submitted, that I may have regard to extrinsic materials;14 in particular, the Explanatory 14 Acts Interpretation Act, s 14B. -- 8 of 13 -- 9 Notes to the Queensland Civil and Administrative Tribunal (Jurisdictional Provisions) Amendment Bill 2009. [34] Clauses 99 to 101 of the Bill dealt with the transfer of jurisdiction from the Magistrates Court to the Tribunal. Unfortunately, the paragraphs in the Explanatory Notes referring to those clauses are unhelpful, as they merely restate, in virtually identical terms and without elaboration, the wording in the clauses of the Bill. The Explanatory Notes to the relevant clauses of Disaster Management Bill 2003 take a similarly unhelpful form. [35] Ms Riedel particularly drew attention to the statement in the Explanatory Notes to the Queensland Civil and Administrative Tribunal (Jurisdictional Provisions) Amendment Bill 2009 suggesting that the Bill sought to achieve “increased access for the community through a single point of entry.”15 However, an objective stated at that level of generality, and relating to the Bill as a whole, is of limited assistance in construing a particular provision, especially one that for relevant purposes essentially reproduces the terms of a former provision.16 A remedial provision? [36] Ms Riedel submitted that section 125, being remedial in nature, should be given a liberal and beneficial construction, citing the recent decision of the Full Federal Court in Dyankov v Minister for Immigration and Border Protection17 for the proposition that “a provision dealing with jurisdiction is plainly a remedial provision”. [37] However, the paragraph of the judgment said to contain that proposition is in fact a recitation of the applicant’s submissions rather than a statement by the Court.18 The Court in referring to this submission stated “[w]e consider the contextual considerations relating to the purpose of the provisions and the structure of the scheme to provide a more persuasive indication of the legislative intent” in that case.19 [38] The High Court has stated that it is “quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words”.20 But this is not a case where the Commissioner’s construction would involve reading down the otherwise beneficial meaning of a provision. [39] Even if the provision for compensation itself is properly characterised as remedial, I do not consider that any principle of beneficial construction 15 Explanatory Notes to the Queensland Civil and Administrative Tribunal (Jurisdictional Provisions) Amendment Bill 2009, 5. 16 As I have not found the Explanatory Notes to either provision to be potentially helpful, I have not addressed in detail the matters in s 14B(2) of the Acts Interpretation Act. 17 [2017] FCAFC 81. 18 Ibid, [37]. 19 Ibid, [57]. 20 The Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc (1994) 181 CLR 404, 421. -- 9 of 13 -- 10 necessarily extends to provisions conferring jurisdiction to review compensation decisions. Such provisions involve a legislative choice as to the form and venue for review of decisions. While the provisions plainly involve a remedy for applicants who consider they have been unjustly treated, I doubt that the legislature’s choice of one form and venue for a remedy over another has a remedial dimension that would attract the principles applying to construction of remedial legislation. Conclusion on the jurisdiction issue [40] The Commissioner’s construction has at its heart the proposition that a decision to refuse to pay compensation may only be made in respect of an “accepted application”. [41] The only provision in which the concept of an “accepted decision” appears is section 123. Despite its heading “Deciding application”, the only work of section 123 is to deem the chief executive to have “refused to pay compensation” if an accepted application is not decided within 60 days. [42] If the Commissioner is tardy in deciding an accepted application, deemed decision under section 123 to refuse to pay compensation will enliven review rights under section 125. Otherwise, section 123 has no work to do in relation to the jurisdiction of the Tribunal. [43] Elsewhere in subdivision 2, where these provisions appear under the heading “Application and decision about compensation”, no distinction is drawn between accepted applications and other applications. The provisions simply refer to the “applicant” and the “application”. Other than in accordance with section 123, there is no reason to limit those expressions to accepted applications. [44] The Commissioner’s construction would have the result that the only avenue for an applicant wishing to challenge the Commissioner’s decision not to accept a late application would be an application to the Supreme Court for judicial review on the basis of legal error. Merits review of that decision would not be available. [45] Assuming success for the applicant in that litigation, but that the Commissioner then, on considering the application, decided not to pay compensation, an applicant seeking review of that decision would have to commence another proceeding in the Tribunal. [46] The improbability that the legislature intended to create this inconvenient, costly and time-consuming, bifurcated process favours the Applicants’ construction.21 [47] Further, the Commissioner’s construction of section 125 would be incongruous with other provisions in subdivision 3. If the view that 21 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408. -- 10 of 13 -- 11 “application” and “applicant” in section 124 are limited to accepted applications and applicants whose applications are accepted – and that is the link between section 123 and 125 required to take a similar view of section 125 – an incongruity in the notice provisions would apply. The Commissioner would be required to notify applicants whose applications are accepted of the outcome of their application, but not required to notify applications whose applications are not accepted. [48] Against that, the Applicants’ construction has the incongruity that section 123 provides a mechanism for enlivening appeal rights if the Commissioner is tardy in deciding an accepted application but not for tardiness in deciding whether to accept a late application. [49] Approaching the section in a practical way having regard to subdivision 3’s evident object of providing a review avenue for applicants who are refused the compensation they seek, I consider that section 125 is broad enough to bear the construction that provides for external review by the Tribunal whether a late applicant is denied compensation because the Commissioner does not accept the application or because the Commissioner, having accepted the application, decides not to pay compensation. The practical effect of either decision is a refusal by the Commissioner to pay compensation.22 [50] Section 125 is concerned with the result – refusal to pay compensation or the amount of the compensation. There is nothing is section 125 directing attention to the process by which the refusal to pay, or the amount of compensation, was arrived at. That a refusal to pay arises not because the Commissioner considers the application and “decides not to pay compensation” as section 124 contemplates, but because the Commissioner does not accept and therefore does not consider the application, does not change the character of the outcome. [51] On balance, having concluded that section 125 is reasonably capable of bearing the broader construction, and having particular regard to the improbability that legislature intended that applicants aggrieved by a decision of the Commissioner would be forced to make separate applications to the Supreme Court and to this Tribunal, I prefer the applicants’ construction. [52] I conclude that the Tribunal has jurisdiction to decide this matter. Costs [53] Under section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Queensland) (“QCAT Act”), the starting point is that each party bears their own costs. However, the Tribunal may make an order 22 This practical approach has some parallels with the approach of the Tribunal in another context in Murphy v Queensland Building and Construction Commission [2017] QCAT 164, in which the Tribunal held that a decision to withdraw a direction to remedy a defect was a decision not to issue a direction to rectify. -- 11 of 13 -- 12 requiring a party to pay all or a stated part of the costs of another party if the interests of justice require it to do so s 102(1). [54] In doing so, the Tribunal may have regard to a number of factors listed in s 102(3). Considering each of those factors in turn: (1) s 102(3)(a) – there is nothing in the conduct of the Commissioner that could be said to be “acting in a way that unnecessarily disadvantages” the Applicants; Ms Riedel did not suggest otherwise; (2) s 102(3)(b) – the strike out application raised a difficult statutory construction issue. There is nothing otherwise in the “nature and complexity” of the dispute that warrants a costs order; (3) s 102(3)(c) – in relation to “the relative strengths of the claims made by each party to the proceeding”, I consider the issue raised to be finely balanced; (4) s 102(3)(d) – whether the Applicants “were afforded natural justice” or “genuinely attempted to enable and help” the Commissioner to make the decision do not arise in this case. (5) s 102(3)(e) – Ms Riedel argued that the Applicants were in difficult financial circumstances. I do not consider that this factor, even if it could be established by appropriate evidence, is sufficient in itself to warrant a costs order when balanced against the factor discussed at paragraphs 55 and 56 below. (6) s 102(3)(f) – “anything else the tribunal considers relevant”, which is discussed further below. [55] The Commissioner’s application raised a real and significant issue for determination, which it was not inappropriate for the Commissioner to raise at an early stage in the proceeding. Indeed, it might be said that, having regard to the Commissioner’s duty under section 21 of the QCAT Act to help the Tribunal in making its decision, the Commissioner was duty-bound to raise the issue. [56] Further, dealing with the matter by a separate application was an efficient and appropriate way to proceed. The alternative of leaving the issue for determination at the hearing of the application for review would have run the risk of wasted time and expense both for the parties in preparing for the hearing, and for the Tribunal, if the Tribunal had concluded that there is no jurisdiction to decide the application for review. [57] Ms Riedel also argued that I should take into account that the underlying issue of compensation had been agitated by the Applicants for some years since the events said to give rise to the entitlement to compensation which occurred in 2011. The application for review by this Tribunal was made on 31 January 2017. Any earlier agitation was not at this Tribunal. I do not consider that to be relevant to the claim for costs. -- 12 of 13 -- 13 [58] I am not persuaded that the interests of justice require the Tribunal to make an order for costs against the Commissioner. Concluding remarks [59] The appropriate orders are that the strike out application be dismissed and that each party bears their own costs relating to that application. [60] I record my appreciation of the parties’ comprehensive written submissions and the helpful oral submissions of both counsel. -- 13 of 13 --