Coppens v Fraser Coast Regional Council [2013] QCAT 378

CITATION: Coppens v Fraser Coast Regional Council [2013] QCAT 378 PARTIES: Josephine Rosalie Coppens (Applicant) V Fraser Coast Regional Council (Respondent) APPLICATION NUMBER: GAR385-12 MATTER TYPE: General administrative review matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: K O’Callaghan, Senior Member DELIVERED ON: 26 March 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The application of Josephine Rosalie Coppens seeking orders against the Fraser Coast Regional Council is dismissed. CATCHWORDS: Jurisdiction – whether Tribunal has jurisdiction to determine “other civil dispute” – whether s 227 Queensland Civil and Administrative Tribunal Act 2009 gives jurisdiction to the Tribunal to deal with “administrative actions”. Queensland Civil and Administrative Tribunal Act 2009 s 227 Ombudsman Act 2001 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 (QCAT Act). REASONS FOR DECISION [1] Ms Coppens constructed a house as owner builder in 2005. As part of the project she had an on-site sewerage system designed and installed. This -- 1 of 5 -- 2 system has been the subject of litigation in this Tribunal (and a former Tribunal) since 2009. [2] In essence the system designed, installed and improved was a subsurface system and not the above ground irrigation system that Ms Coppens thought she would have. [3] Ms Coppens did obtain a decision in her favour against the plumber who installed the system with respect to defective work. [4] She subsequently commenced a domestic building dispute application against the designer of the system (Water Wise) and the Fraser Coast Council who approved the design claiming compensation for what she considered to be her losses suffered since the system was installed. These proceedings were dismissed against the Fraser Coast Council on the basis that the approval of the plans for the system was not “building work”. The proceedings as far as they relate to Water Wise are ongoing but currently at a standstill. A preliminary point was determined by the Tribunal and confirmed by the Appeal Tribunal. This decision is currently the subject of an appeal to the Court of Appeal by Ms Coppens. [5] In October 2012 Ms Coppens filed a “miscellaneous application” against the Council seeking various forms of relief including:  an award for damages in excess of $100,000.  an order that the Council be prosecuted in accordance with various provisions of the Ombudsman Act 2001.  An order that the Council grant an extension to her building permit.  The Ombudsman Act 2001 be used as “an enabling Act for the purposes of the application. [6] QCAT has produced an application form headed “Miscellaneous application” which is used to bring interlocutory type applications in existing proceedings. [7] Ms Coppens mistakenly thought that she could use this form to commence a fresh application against the Council. [8] Because the building dispute proceedings were on foot the Registry in accepting the miscellaneous application assumed it was a miscellaneous application filed in those proceedings. It was referred to a Senior Member for determination. The Senior Member dismissed the application on the basis that she considered the application premature as the proceedings were currently before the Court of Appeal. [9] Ms Coppens took exception to this decision and filed “a review” of the Senior Members decision. That is not possible under the QCAT Act. She could have appealed the decision but did not. -- 2 of 5 -- 3 [10] As well as filing the review application she sent lengthy correspondence to the Tribunal advising that the Tribunal had misunderstood her miscellaneous application as it was never intended to be an application in the building proceedings. She said her intention was to file a new application against the Council seeking the relief referred to above. [11] I listed the matter for a directions hearing in an attempt to resolve the confusion. [12] I expressed the view at the directions hearing that it did not appear that the Tribunal had any jurisdiction to deal with and make orders in relation to the issues that Ms Coppens now wanted to litigate against the Council. [13] I directed that submissions be filed by both parties which they have done. [14] Ms Coppens has supplied lengthy submissions purporting to establish that the Tribunal has jurisdiction to grant all of the relief she now seeks. The Council’s position is that that the Tribunal does not have jurisdiction. I agree with the Council. [15] The starting point is section 9 of the QCAT Act which sets out the jurisdiction of the Tribunal. [16] Ms Coppens acknowledges the relevance of this provision in her submissions.1 [17] Essentially the Tribunal has power to deal with matters it is empowered to deal with under the QCAT Act or an enabling Act. [18] The effect of this is that if QCAT has jurisdiction to make the orders sought by Ms Coppens that jurisdiction must be provided for in the QCAT Act or an enabling Act. [19] As I understand Ms Coppens latest position (her submissions of 18 March 2013) she accepts this starting point and she says she is not relying on an enabling Act to establish the jurisdiction. [20] The essence of her argument is that QCAT has jurisdiction because:  Her complaints arise from “administrative action” taken by the Council.  These administrative actions were the subject of a report delivered by the Queensland Ombudsman in November 2008 following her complaint to that body.  It is possible in those circumstances to rely on the provisions of section 227 of the QCAT Act to imply that QCAT has jurisdiction to make orders about these “administrative actions”. 1 Para 9 Ms Coppens submissions 20 February 2013. -- 3 of 5 -- 4  The application is an “other civil proceeding”. [21] Ms Coppens has misconceived the effect of section 227. It simply provides a mechanism for QCAT and the Ombudsman to work together where complaints made may overlap their respective jurisdictions. [22] This section provides for each body to refer a matter to the other where it would be more appropriate. It does not create any original jurisdiction for QCAT to deal with matters that may have been referred to the Ombudsman which I suspect is what Ms Coppens is suggesting. [23] Ms Coppens other submission is that the application she seeks to bring is an “other civil proceeding”. She says QCAT has often dealt with such matters and made orders to compensate applicants where there has been misrepresentations or misleading conduct. [24] Ms Coppens has clearly spent some time researching these decisions and has no doubt seen Tribunal decisions classified as “other civil dispute” in the decision cover sheet. This term is simply a term developed by QCAT to describe a category of cases for the purpose of case managing these cases in the Tribunal’s case management system. [25] There is nothing in the QCAT Act or an enabling Act that gives the Tribunal jurisdiction to deal with “other civil disputes”. [26] “Other civil disputes” includes disputes involving manufactured homes, retirement villages and claims against the statutory fund under the Property Agents and Motor Dealers Act 2000. Jurisdiction for QCAT to deal with those matters comes from the relevant enabling Acts. Ms Coppens makes much of “comparable cases” where parties have received damages for misrepresentation which she says is analogous to her position and therefore the Tribunal must have jurisdiction to hear her claim. [27] Unfortunately, Ms Coppens has not appreciated that in all of these other matters she refers to the source of QCAT’s jurisdiction to make the orders is an enabling Act. For example she cites a number of cases that involve claims under the Property Agents and Motor Dealers Act 2000 against the statutory fund set up to compensate persons who have suffered a financial loss caused by a licensee on the happening of a certain event including false representations and misleading conduct.2 [28] That legislation expressly gives QCAT power to make those orders.3 There is no enabling Act which Ms Coppens can point to which was power to QCAT to make the orders she seeks here. [29] Although Ms Coppens has made a commendable effort to seek out provisions of legislation and decisions to support her argument they are 2 Property Agents and Motor Dealers Act 2000 ss 470(1), 448. 3 Ibid s 488. -- 4 of 5 -- 5 misconceived. There is no power in the QCAT Act or in the enabling Act to grant the relief she seeks. [30] Ms Coppens application therefore against the Fraser Council must fail for want of jurisdiction and is accordingly dismissed. -- 5 of 5 --