Gilmour v The State of Queensland represented by Queensland Fire and Emergency Services

CITATION:

Gilmour v The State of Queensland represented by Queensland Fire and Emergency Services [2014] QCAT 70

PARTIES:	Edward John Gilmour (Applicant)
v
The State of Queensland represented by Queensland Fire and Emergency Services (Respondent)

APPLICATION NUMBER:

GAR393-13

MATTER TYPE:

General administrative review matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member O’Callaghan

DELIVERED ON:

27 February 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application is dismissed.

CATCHWORDS:

Review application – where application dismissed because not a reviewable decision under an enabling Act

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 17

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) (QCAT Act).

REASONS FOR DECISION

Mr Gilmour is an SES volunteer. Difficulties arose between himself and that organisation in 2003. Mr Gilmour’s membership was suspended as a consequence of these difficulties.
Mr Gilmour applied to QCAT to stay and review the decision to suspend his membership.
QCAT only has jurisdiction to review a decision in circumstances where an enabling Act provides for the review.[1]
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 17.
The respondent raised concerns as to whether the Tribunal had jurisdiction to review the decision.
Mr Gilmour in his original application had made reference to the Work Health & Safety Act 2011 as providing him with a right of review. This was discussed with Mr Gilmour at a directions hearing at which time Mr Gilmour accepted that the decision of the respondent to suspend his membership was not a reviewable decision under that Act.
Submissions were then called for from the parties identifying the relevant enabling Act and the relevant provision in the enabling Act which gave the Tribunal jurisdiction to review the decision.
Mr Gilmour submitted that the Public Interest Disclosure Act 2010 provided the necessary jurisdiction.
He referred to section 44 of that Act stating that by virtue of that section he was able to “make a complaint” under the Anti-Discrimination Act 1991.
He made reference to section 144 of the Anti-Discrimination Act which allows a complainant under that Act to apply to QCAT for an order prohibiting a person from doing an act that might prejudice the investigation, conciliation or hearing of that complaint.
Mr Gilmour suggests that that provision could be relied upon by him to seek a stay of his suspension until the respondent could ‘offer adequate explanation with enabling legislation and supporting evidence’ for his suspension.
This submission does not identify, as directed, an enabling Act which establishes a right of review to QCAT of the decision to suspend his membership. The respondent in their submission notes that the applicant has not identified any enabling Act and submits that the decision of the respondent is not a reviewable decision.
The Tribunal agrees with the respondent. Mr Gilmour is clearly frustrated by the action taken in suspending his membership. This Tribunal however has no jurisdiction to review that decision and the application should be dismissed. I order accordingly.

In this case, Edward John Gilmour applied to the Queensland Civil and Administrative Tribunal (QCAT) to review and stay the decision by the State of Queensland, represented by the Queensland Fire and Emergency Services, to suspend his membership as a volunteer. The application was dismissed by Senior Member O’Callaghan, who found that QCAT lacked jurisdiction to review the decision due to the absence of an enabling Act that provided for such review.

The central legal issue was whether QCAT had jurisdiction to review the decision to suspend Mr Gilmour's membership. This hinged on the identification of an enabling Act that granted QCAT the authority to review the decision. Mr Gilmour initially suggested that the Work Health and Safety Act 2011 might provide the necessary jurisdiction, but he later abandoned this argument. Instead, he proposed that the Public Interest Disclosure Act 2010 and the Anti-Discrimination Act 1991 could be used to argue for QCAT’s jurisdiction. However, these Acts did not provide a basis for QCAT to review the membership suspension decision as argued.

Senior Member O’Callaghan examined Mr Gilmour's submissions and found that no enabling Act was correctly identified that would confer jurisdiction on QCAT to review the decision. The Tribunal concluded that it did not have the authority to review the decision to suspend Mr Gilmour's membership, as no relevant legislation provided such a right of review. Consequently, the application was dismissed.

As a result of this finding, the Tribunal ordered that the application be dismissed, thereby affirming that QCAT did not have jurisdiction to review the decision to suspend Mr Gilmour's membership.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established