Bobak v Department of Transport and Main Roads [2015] QCAT 398

CITATION: Bobak v Department of Transport and Main Roads [2015] QCAT 398 PARTIES: Terry Peter Bobak (Applicant) v Department of Transport and Main Roads (Respondent) APPLICATION NUMBER: GAR169-15; GAR180-15 MATTER TYPE: General administrative review matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Hughes DELIVERED ON: 12 October 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. The Tribunal does not have jurisdiction; and 2. The Applications are dismissed. CATCHWORDS: APPLICATIONS FOR REVIEW – whether jurisdiction – whether reviewable decision - where no internal review decision by chief executive – where no reviewable decision under an enabling Act Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 6, 17 Transport Operations (Road Use Management) Act 1995 (Qld) ss 17A, 19, 65, 65A, Schedule 3 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION What are these Applications about? [1] The Department of Transport and Main Roads grants non-exclusive licences to registered training organisations to deliver approved traffic -- 1 of 3 -- 2 management training programs. Mr Terry Bobak claims to be an ‘Independent Third Party’ who conducts one of these programs on behalf of a registered training organisation who is no longer approved. [2] Mr Bobak has therefore applied to the Tribunal to review what he says are ‘decisions’ of the Department: Refusal to deliver Traffic Controller Training Courses as the third party person to Driveway Training RTO 31522;1 and Refusing me as third party person to deliver traffic management level 2 courses for Driveway Training P/L.2 [3] The Tribunal consolidated Mr Bobak’s applications and directed that the Tribunal determine jurisdiction following submissions from Mr Bobak and the Department.3 [4] Mr Bobak and the Department have filed their submissions and the Tribunal must therefore now determine jurisdiction. Does the Tribunal have jurisdiction? [5] The Tribunal does not have jurisdiction because Mr Bobak has not first asked the chief executive for internal review. Why does Mr Bobak have to seek internal review by the chief executive? [6] The Tribunal can only review a ‘reviewable decision’.4 The Tribunal’s jurisdiction to review must therefore be conferred upon it by an enabling Act to review a decision made under that Act.5 An enabling Act can include subordinate legislation.6 [7] The enabling Act here is the Transport Operations (Road Use Management) Act 1995 (Qld). That Act relevantly provides that a person whose interests are affected by a decision described in schedule 3, may ask the chief executive to review the decision and is entitled to a statement of reasons.7 If a reviewed decision is not the decision sought by the applicant for the review, the applicant may then apply to the Tribunal to review the reviewed decision.8 [8] The reviewed decision is therefore the chief executive’s internal review of the decision in schedule 3. This means that the Tribunal only has jurisdiction to review the chief executive’s internal review of a decision in schedule 3. 1 Application GAR169-15 filed 21 July 2015. 2 Application GAR180-15 filed 4 August 2015. 3 Directions dated 31 August 2015. 4 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 17(2). 5 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 17(1). 6 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 6(2)(b). 7 Transport Operations (Road Use Management) Act 1995 (Qld) s 65(1) and (2). 8 Transport Operations (Road Use Management) Act 1995 (Qld) s 65A(1) and (2). -- 2 of 3 -- 3 [9] If the Department has made a decision in relation to a Licence Agreement that affects Mr Bobak,9 he may well be a person whose ‘interests are affected’ by a decision in schedule 3.10 However, he would then need to ask for internal review by the Chief Executive before applying to the Tribunal. [10] Unfortunately for Mr Bobak, the Tribunal does not have any internal review Decision by the chief executive and therefore does not have a ‘reviewable decision’ to review. Conclusion [11] Because the Tribunal does not have any ‘reviewable decision’ to review, the applications lack jurisdiction and must therefore be dismissed. 9 Because Mr Bobak referred only to verbal and telephone communications by the Department to parties other than him, the precise nature of the Department’s decisions is unclear. 10 Schedule 3 of the Act includes a decision of the chief executive under section 19 to amend, suspend or cancel an approval, while s 17A(2) provides that an ‘approval’ includes an accreditation, administrative determination, certificate, consent, exemption, licence, permit and registration given or granted by the chief executive under the Act. -- 3 of 3 --