Franzmann v Livingstone Shire Council [2025] QCAT 390

[4] The information notice sent to the Applicant regarding the dangerous dog declaration dated 3 December 2024 attached a blank "Application for Review of Local Government Decision for Regulated Dog" form.
[5] There is nothing before the Tribunal to indicate that any application for internal review was made within 14 days after the Applicant was given the information notice. Instead, the Applicant submitted an "Administrative Action Complaint Form" to the Respondent which appears to have been stamped and received by the Respondent on 13 December 2024. Submissions with the Complaint Form raise issue relating to the decision. There are divergent submissions from the parties as to the nature of the complaint and whether it was, in effect, a request for internal review, or instead, a complaint against staff.[1] Irrespective of the nature of the submissions in the Complaint Form, no "approved form" was submitted within 14 days after the Applicant was given the information notice.
[6] Is it open for the Tribunal to waive compliance with the requirements of section 183 of the Act and deem the Complaint Form to be an application of internal review? The answer is no because the jurisdiction of the Tribunal is not enlivened in circumstances where an Applicant is not "given, or is entitled to be given" a review notice. An entitlement to be given a review notice would have arisen if there was compliance with the requirements of section 183 of the Act. There was no compliance. Therefore, the enlivening provision of the Act is not satisfied and the Tribunal does not have jurisdiction to review the decision.
[7] Section 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ("the QCAT Act") provides that the Tribunal may "... waive compliance with another procedural requirement under this Act, an enabling Act or the rules". Section 61 is contained within Part 6 of Chapter 2 of the QCAT Act which is headed "Other provisions about a proceeding". The Dictionary in the QCAT Act provides that a "proceeding" means "... a proceeding before the tribunal". There is no jurisdiction for "a proceeding" to be before the Tribunal in the present circumstances.
[8] Section 61 does not, of course, bestow unfettered discretion upon the Tribunal to waive compliance with any and all provisions of enlivening acts in circumstances where there is no jurisdiction for the Tribunal to hear and decide a matter. If the Tribunal purported to exercise powers pursuant to section 61 of the QCAT Act and waive compliance with the requirements for making an internal review application so that the jurisdiction enlivening provision (section 183 of the Act) was satisfied, it would be appropriately described as the Tribunal attempting to convey unto itself jurisdiction it does not have.
[9] It is not necessary for the Tribunal to make findings regarding the communications between the parties or the circumstances that led to the Applicant submitting the Complaint Form (instead of the approved application for review form) because the Tribunal does not have jurisdiction to review the decision and cannot therefore exercise discretion to waive compliance.
[10] The Applicant has, subsequent to filing the Application to review a decision, made a request to the Respondent to extend time for making an internal review application. By letter of 5 March 2025, the Respondent denied the request.[2] Section 183 of the Act provides discretion to the Chief Executive of the Respondent to extend time for making the internal review application. The Tribunal stands in the shoes of the Chief Executive for the purposes of a review. In the absence jurisdiction permitting the Tribunal to conduct a review, the Tribunal has no power to perform a function or role of the Chief Executive. For the same reasons as set out above in relation to waiving the form requirement, the Tribunal is not empowered to extend the time for making the internal review application.
[11] The Tribunal does not have jurisdiction to review the decision. The Tribunal does not have jurisdiction to waive compliance with section 183 of the Act. Accordingly, the Application to review a decision must be dismissed.
[12] For completeness, the interlocutory applications filed by the Applicant must also be dismissed because the Tribunal has no jurisdiction to conduct the review. The Application for miscellaneous matters filed 6 February 2025 (seeking production of document or thing) will be dismissed. The Application to stay a decision filed 6 February 2025 will also be dismissed. However, it should be noted in relation to the stay application that an Applicant may apply for a stay of an original decision immediately after being given the information notice for the decision in order to secure the effectiveness of the internal review decision and any subsequent application for review to the Tribunal.[3] An Applicant seeking to review a declaration may make a standalone application to the Tribunal seeking a stay order without filing an Application to review a decision.
[13] In the present matter, the Application to stay a decision does not request a stay pending internal review. Even if the stay application was seeking a stay pending internal review, the time for the application for internal review had passed by the date of filing the Application to stay a decision. Rather than seeking a stay pending internal review, the Application to stay a decision included submissions from the Applicant stating "An application for external review is being prepared and will also be lodged within a few days". As noted, there is no jurisdiction for the Tribunal to review the decision and the stay application must also be dismissed.

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Judgment (13 paragraphs)

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Legislation Cited (2)