Clarkson v Pateliz Pty Ltd [2026] QCATA 12

[3] The appellant seeks the decision be overturned and the matter be transferred to the Magistrates Court. He submits the learned magistrate erred in law in determining QCAT had jurisdiction, on the basis that:

(a) the proceeding is against Ray White Gladstone as an agent for Pateliz Pty Ltd. However, it is the residency of the principal, not their agent, that determines the residency of the respondent in a proceeding. Pateliz Pty Ltd's registered office was in South Australia at the relevant time, so Pateliz Pty Ltd was a resident of another state, while the appellant lived in Queensland;

(b) The dispute therefore falls in the jurisdiction of the High Court, because:

(i) 'resident of another state' in the Constitution s 75(iv) includes a corporation, not only a natural person;

(ii) the parties in the proceeding below are residents of different states for the purpose of that section. The respondent was not a resident of Queensland;

(iii) QCAT is not a 'Court of a State' capable of exercising federal jurisdiction.

[4] A party to a proceeding may appeal to the Appeal Tribunal against a decision of the Tribunal in the proceeding.[1] In deciding the appeal on a question of law the Appeal Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision or set aside the decision and remit the matter to the Tribunal for reconsideration.[2] The Appeal Tribunal may set aside the decision and substitute its own decision only if this results in the disposition of the appeal entirely in the appellant's favour.[3]

[6] The magistrate's determination that 'resident' at s 75(iv) of the Constitution refers to a natural person was correct. His determination the Constitution cannot be amended by an ordinary Act was correct. Subsequent case law has consistently applied the original approach of the Constitution.[4] Per British American Tobacco Australia Ltd v Western Australia:[5]

The authorities in this Court, which are to be followed until a successful challenge be made to them, establish that (i) an artificial person, including a corporation such as BAT, cannot be a "resident" within the meaning of s 75(iv)...

[7] This point underlies the other grounds of appeal. Constitutional residency not applying to a corporation means the appeal must be dismissed. For completeness I will consider the other grounds.

[8] The proceeding was originally brought against Ray White Gladstone, which is a business name of Real Estate Trading Co. Pty Ltd, ABN 18 127 430 602. That it was acting as an agent for Pateliz Pty Ltd does not mean suits against it are suits against Pateliz Pty Ltd. Pateliz Pty Ltd is not the respondent to the original proceeding. Ray White Gladstone is the respondent and can be sued in its own name. Pateliz Pty Ltd's residency status is not relevant to the proceeding.

[9] Even if Pateliz Pty Ltd was the respondent proper, it needs to be demonstrated it 'resided' in South Australia. The question of a corporation's 'residence' was considered in Bywater Investments Ltd v Federal Commissioner of Taxation:[6]

As a matter of long-established principle, the residence of a company is first and last a question of fact and degree to be answered according to where the central management and control of the company actually abides. As a matter of long-established authority, that is to be determined, not by reference to the constituent documents of the company, but upon a scrutiny of the course of business and trading.

[10] At all relevant times Pateliz Pty Ltd conducted business in Queensland. It was registered in Queensland and Queensland was its principal place of business.[7] As the magistrate stated, it may have (had) some connection to South Australia, but as its substantive operations were based in Queensland its residence should be considered to be Queensland.

[11] The appellant argues QCAT lacks interstate jurisdiction as it is not a Chapter III court, as the logic in Owen v Menzies[8] is countered by the decision of the Victorian Court of Appeal in Meringnage v Interstate Enterprises Pty Ltd (t/as Tecside Group).[9] QCAT is bound by the decision in Owen, which concerned QCAT, rather than the Victorian decision which concerned VCAT and resulted in its subsequent organisational reform. Notably, VCAT is not a court of record. QCAT's status as such was a determinative factor in the Court's decision in Owen.[10]

[12] QCAT has jurisdiction to hear the matter below.

[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(1) ('QCAT Act').

[3] Ericson v Queensland Building Services Authority [2013] QCA 391.

[4] Crouch v Commissioner for Railways (Qld) [1985] HCA 69; (1985) 159 CLR 22; Australian Temperance and General Mutual Life Assurance Society Ltd v Howe [1922] HCA 50; (1922) 31 CLR 290.

[5] [2003] HCA 47; (2003) 217 CLR 30 [37].

[6] [2016] HCA 45; (2016) 260 CLR 169 [77].

[7] See submissions filed 21 February 2022 by the applicant in the proceeding below. The applicant attempted to file an application to remove the matter to the High Court, and the respondent provided submissions in reply to this which addressed the question now on appeal.

[8] [2012] QCA 170; [2013] 2 Qd R 327 ('Owen').

[9] [2020] VSCA 30; (2020) 60 VR 361.