Filmer & ors v Carlyle Gardens Retirement Village Pty Ltd [2011] QCAT 354

CITATION: Filmer & ors v Carlyle Gardens Retirement Village Pty Ltd [2011] QCAT 354 PARTIES: Mr James Renus Filmer Mr Charles B Stick Mrs Margaret A Dillon Mr Michael Shulver Mr Noel Ash Mr John Harrington v Carlyle Gardens Retirement Village Pty Ltd APPLICATION NUMBER: OCL176-10 MATTER TYPE: Other civil dispute matters HEARING DATE: 2 August 2011 HEARD AT: Brisbane DECISION OF: Ms Peta Stilgoe DELIVERED ON: 2 August 2011 DELIVERED AT: Brisbane ORDERS MADE: Application dismissed CATCHWORDS : RETIREMENT VILLAGES – where allegations that residents’ committee improperly elected – where fresh elections held – where dispute resolved by fresh elections – where residents asked the tribunal to determine questions “in dispute” – whether a retirement village dispute – whether the tribunal has jurisdiction Retirement Villages Act 1999 ss 21, 22, 127, 210 Bass v Permanent Trustee Company Limited (1999) 198 CLR 334 Duncum and The Residents of Compton Gardens & ors v Tricare (Aspley) Ltd [2007] QCCTRV 1 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). -- 1 of 3 -- REASONS FOR DECISION [1] The applicants were members of the residents’ committee at Carlyle Gardens Retirement Village. Throughout 2010, the operator - Carlyle Gardens Retirement Village Pty Ltd - had concerns about the validity of the election of the committee members. It wrote to the committee and the residents about those concerns. The applicants interpreted the operator’s correspondence as an “adjudication” of the validity of the committee and an interference in the election process. The applicants say that the operator’s actions caused “significant uncertainty, disharmony and stress for residents”. They brought an application in the tribunal seeking the following orders: a) That the operator issue a circular to all residents retracting the contentious correspondence. b) That the operator pay the applicants $3,500 to reimburse them for the costs of managing the operator’s interference in the election process. c) That the operator not issue any written material to the residents about the election process unless the material has been approved in advance by a majority of the committee members. [2] The dispute was referred to a compulsory conference, by which time, a new residents’ committee had been elected. The applicants report that the operator has accepted the legitimacy of the committee and is of the view that there is no longer any dispute. However, the applicants want the tribunal to answer three questions: a) Does s127 of the Retirement Villages Act allow any resident to be elected to the committee? b) Does s127 of the Retirement Villages Act allow the operator to influence this election process? c) Is the residents’ constitution contrary to s128(2)(a) of the Retirement Villages Act by providing that only one resident per unit may be nominated? [3] The tribunal only has jurisdiction if there is a retirement village issue1. That term is defined in s22 of the Act by reference to “retirement village dispute”. The applicants say that the questions are “issues in dispute”. [4] It is well settled that it is not the function of Courts to give advisory opinions.2 While it is true that the tribunal is not a Court, the jurisdiction conferred on it by the Retirement Villages Act is judicial in nature and, therefore, the comments of the High Court3 are relevant: “The purpose of a judicial determination has been described in varying ways. But central to those descriptions is the notion that such a determination includes a conclusive or final decision based on a concrete and established or agreed situation which aims to quell a controversy. ...... 1 Retirement Villages Act 1999, s210. 2 Bass v Permanent Trustee Company Limited (1999) 198 CLR 334 3 Supra, per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ at 355 - 356 -- 2 of 3 -- Because the object of the judicial process is the final determination of the rights of the parties to an action, courts have traditionally refused to provided (sic) answers to hypothetical questions.” [5] The tribunal does have jurisdiction to answer preliminary questions that may lead to a resolution of a retirement village dispute4 but the questions posed by the applicants are not preliminary questions. [6] The applicants’ questions have the character of a request for an advisory opinion. They are asking the tribunal to answer questions in a vacuum, as there is no evidence before the tribunal about the matters raised by them. The operator, apparently, has no interest in the outcome of the proceeding as it has filed no material at all. At a directions hearing on 9 June 2011, Mr Filmer advised the Senior Member that there was “no dispute at the moment”. [7] This is not a retirement village dispute within the contemplation of the Retirement Villages Act. The tribunal has no jurisdiction and the application should be dismissed. 4 See, for example, Duncum and The Residents of Compton Gardens & ors v Tricare (Aspley) Ltd [2007] QCCTRV 1 -- 3 of 3 --