Coppens v Fraser Coast Regional Council [2013] QCATA 356

CITATION: Coppens v Fraser Coast Regional Council [2013] QCATA 356 PARTIES: Josephine Rosalie Coppens (Applicant/Appellant) v Fraser Coast Regional Council (Respondent) APPLICATION NUMBER: APL208-13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President DELIVERED ON: 3 September 2013 DELIVERED AT: Brisbane ORDERS MADE: Appeal refused. CATCHWORDS: APPEAL – QUESTION OF LAW – GENERAL ADMINISTRATIVE REVIEW – JURISDICTION – where the applicant claimed that the sewerage facility installed on her property was defective – where the respondent approved the design of the facility – where the approval was the subject of a report delivered by the Queensland Ombudsman following a complaint to that body – where the applicant commenced proceedings against the respondent and the plumber who installed the facility – where the proceedings against the respondent were dismissed for want of jurisdiction – where applicant seeks to appeal that decision – where the applicant claims the respondent’s approval is a reviewable decision – where s 17(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) provides that the Tribunal’s review jurisdiction is the jurisdiction conferred on it by an enabling Act – where s 9(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) provides that an enabling Act confers jurisdiction on the Tribunal if it provides -- 1 of 5 -- 2 for an application, referral or appeal to be made to the Tribunal – where the applicant contends the Tribunal has an implied jurisdiction in matters involving administrative action that is the subject of investigation under the Ombudsman Act 2001 (Qld) – where the Ombudsman Act 2001 (Qld) does not provide for an application, referral or appeal to the Tribunal – whether the Tribunal has a general jurisdiction to review administrative action Acts Interpretation Act 1954 (Qld), s 49A Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9(3), s 17(1), s 142(3), s 227 Hope v Bathurst City Council (1980) 144 CLR 1, cited APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). REASONS FOR DECISION [1] Ms Coppens is very unhappy with a sewerage facility installed in her land some years ago which, she says, is defective. She brought proceedings against the plumber who installed the facility and the Tribunal found in her favour and the plumber paid her some money. [2] She apparently considers, however, that her losses were not fully compensated and she also brought proceedings against the designer of the facility, Water Wise Design Pty Ltd and, also, the Fraser Coast Regional Council. [3] There have been five proceedings involving the designer, culminating in a decision of the Queensland Court of Appeal on 7 June 2013.1 [4] The proceedings against the Council began when Ms Coppens named it in her original proceedings against the designer but have, since, advanced to take the form of a separate proceeding in QCAT in which she claims damages from the Council of over $100,000 arising from what she alleges is the Council’s wrongful grant of a building permit for the sewerage works, which she categorises as an ‘… unlawful administrative action’.2 1 [2011] QCAT 273; [2012] QCAT 009; [2012] QCATA 129; [2013] QCAT 064; [2013] QCA 145. 2 Josephine Coppens, ‘Response to Submission of the Respondent’ Submissions in Coppens v Fraser Coast Regional Council, APL208-13, 6 August 2013. -- 2 of 5 -- 3 [5] In 2011 a QCAT Member removed the Council as a respondent in the proceedings against the designer.3 Regrettably, some confusion arose in respect of Ms Coppens’ subsequent, apparently separate proceedings against the Council for this relief, to do with the form she used to institute the proceeding. The circumstances are set out in a decision of QCAT Senior Member O’Callaghan delivered on 26 March 2013.4 For present purposes it is sufficient to note that the Senior Member dismissed the application on the ground that the Tribunal had no jurisdiction to deal with it. [6] Ms Coppens has brought an appeal against that decision. The QCAT Appeal Tribunal directed that the appeal be heard and determined on the papers and the parties have filed and exchanged written submissions. [7] Ms Coppens’ submissions reiterate arguments she advanced before the Senior Member. She says that her complaints and her cause of action arise from ‘administrative action’ taken by the Council which were the subject of a report delivered by the Queensland Ombudsman in November 2008, following her complaint to him, and that s 227 of the QCAT Act gives the Tribunal an implied jurisdiction in matters involving the Ombudsman. She also asserts that the Tribunal has, in many other instances, recognised that it has jurisdiction in what are called ‘other civil proceedings’. [8] She also contends, as I understand her written submissions, that s 49A of the Acts Interpretation Act 1954 (Qld) supports her construction of the prevailing legislation; and, that the Tribunal has jurisdiction under its review jurisdiction, within Chapter 2, Part 1, Division 3 of the QCAT Act. [9] Rights of appeal to the QCAT Appeal Tribunal hinge upon the nature of, and the contentions made in, the appeal itself. Leave to appeal is necessary unless the appeal is brought on a question of law.5 Ms Coppens’ application to the Appeal Tribunal indicates she is seeking leave but her submissions may reasonably be described as resting, primarily, upon the question whether the facts and circumstances underlying her application are sufficient to enliven the jurisdiction of the Tribunal – and, hence, to involve the question whether one or other of the statutes to which she has referred give QCAT the necessary jurisdiction. Questions of that kind are usually categorised as questions of law,6 and I propose to deal with her application as an appeal proper. [10] In her original proceeding – i.e. the application which was dismissed by Senior Member O’Callaghan – Ms Coppens sought a wide range of relief. She claimed two separate amounts in damages, totalling almost $110,000; that the Ombudsman Act 2001 (Qld) could be used as ‘… the enabling act for the purposes of the application’; that QCAT prosecute the 3 [2011] QCAT 274. 4 [2013] QCAT 278. 5 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(3) (‘QCAT Act’). 6 Hope v Bathurst City Council (1980) 144 CLR 1 at 7 per Mason J. -- 3 of 5 -- 4 Council under provisions of the Ombudsman Act 2001; that QCAT order the Council to grant Ms Coppens an extension to a building permit for a further 12 months and allow her to live in her dwelling prior to completion of its construction; that the Council pay for ‘all further items required to install an on-site sewerage facility compliant with present day standards’; that the Council also amend its records to show that a secondary on-site sewerage facility had been installed on the property, rather than a primary on-site sewerage facility; and that Ms Coppens be at liberty to make a claim in another Court for ‘mental injury’. [11] The learned Senior Member’s reasons clearly and comprehensively, with respect, explain why QCAT has no jurisdiction to hear and determine a claim of this kind. Although QCAT is a ‘court of record’7 it only has the jurisdiction invested in it under the QCAT Act itself or an ‘enabling Act’. Ms Coppens has, as the Senior Member explained, misconstrued s 227 of the QCAT Act as though the Ombudsman Act 2001 was an ‘enabling Act’. It is not. Absent a power invested in QCAT under an enabling act, the Tribunal can only take jurisdiction from the QCAT Act itself and, as the Senior Member took pains to explain, s 227 simply provides a mechanism for QCAT and the Ombudsman to work together where complaints may overlap in their respective jurisdictions. It allows for each body to refer a matter to the other but does not create any original jurisdiction for the Tribunal. [12] Secondly, s 49A of the Acts Interpretation Act 1954 does not broaden QCAT’s jurisdiction, or powers. As s 9(3) of the QCAT Act (which directly addresses s 49A) says, enabling acts confer jurisdiction on QCAT to deal with matters if the enabling act provides for an application, referral or appeal to be made to the Tribunal in relation to the matter. The Ombudsman Act 2001 contains no such provision. [13] Thirdly, Ms Coppens’ arguments around the terms ‘other civil disputes’ are also fully addressed in a decision of the learned Senior Member. As she explains, the term is simply one used by the Tribunal for internal purposes to describe a category of cases. It is part of a numbering system within QCAT’s case management system and includes a variety of disputes involving, e.g. manufactured homes, retirement villages and the like. All of them, critically, fall within the Tribunal’s jurisdiction because they are the subject of relevant enabling Acts. [14] In her submissions to the Senior Member, and now to the Appeal Tribunal, Ms Coppens presents a number of what she calls ‘comparable cases’ where parties have received damages for misrepresentation in other civil disputes matters but she has not, with respect, appreciated that in all of those matters QCAT’s jurisdiction can be traced back to an enabling act. [15] She faces, again with respect, the same difficulty in an argument she appears to advance in her written submissions to the Appeal Tribunal – that QCAT has general jurisdiction under its powers, within the QCAT Act 7 QCAT Act s 164(1). -- 4 of 5 -- 5 itself, to review administrative action. Under s 17(1) of the QCAT Act, however, the Tribunal’s review jurisdiction ‘… is the jurisdiction conferred on the Tribunal by an enabling Act’ to review a decision made or taken to have been made by another entity under the enabling act. Again, whatever decisions of the Council Ms Coppens purports to attack, they are not decisions in respect of which QCAT is invested with jurisdiction under an enabling act. [16] Nothing in Ms Coppens’ submissions shows any error of law on the part of the learned Senior Member, or any error in her Reasons. Because she is self-represented, and because she has brought a range of legal proceedings signifying a high level of upset and concern on her part about the original work and installation, I have also been at pains to consider whether she has any other legitimate basis for the application she purports to bring in the Tribunal against the Council which might be within the jurisdiction of the Tribunal. I am not aware of any part of the QCAT Act, or any enabling act, which meets those criteria. For these reasons, her appeal must be dismissed. -- 5 of 5 --