Appealing a QCAT Decision

Are you appealing a QCAT decision in a litigation matter?  This article will explain the steps involved with appealing a decision of the Queensland Civil and Administrative Tribunal (“QCAT”), including:

1. Making an application to reopen a proceeding;
2. Making an application to set aside a default decision;
3. If your QCAT matter can even be heard on appeal;
4. If it can be heard, where to file your appeal;
5. Matters on appeal that are heard by judicial members;
6. Matters on appeal that are heard by non-judicial members; and
7. Appeal questions of law and appeal questions of fact.

Reopen a proceeding – Appealing a QCAT Decision

If you are looking at Appealing a QCAT Decision, sections 136 to 141 of the QCAT Act allows a person to reopen a proceeding after a final order has been made.  A reopening application may only be heard on the papers, meaning there is no attendance needed for a decision to be made to reopen a proceeding.

The case of Davana Timber Industries Pty Ltd v Cool [2012] QCAT 201 gives the legal reasoning from QCAT in relation to reopening a matter after a decision has been made.

They said that:

There are two reopening grounds set out in the QCAT Act:

 The party did not appear at the hearing of the proceeding and had a reasonable excuse for not attending the hearing; or

The party would suffer a substantial injustice if the proceeding was not reopened because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard.

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The Party did not Appear and had Reasonable Excuse

The first point above is self-evident.  If you did not appear at the hearing but had a reasonable excuse for not attending, and your opponent was awarded the decision in default, then the Tribunal have grounds to re-open the proceeding.  But what is “reasonable excuse”?

Define Reasonable Excuse

The case law in Queensland in relation to Appealing a QCAT Decision have defined reasonable excuse to be:

1. Not being given the notice of hearing as required – N+S Newham Pty Ltd v Cost-U-Less Concreting Pty Ltd [2015] QCAT 36
2. The notice of hearing had not been received by the respondents – Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe [2013] QCATA 212 and Hotrod Mobile Welding Services v Suncity Holdings Qld Pty Ltd [2013] QCATA 170.
3. The application was sent to the wrong address for the respondent – Stato Pty Ltd and Anor v Jenkins [2011] QCAT 391.

Substantial Injustice because of New Evidence

The second point above means that new evidence has been made available after the decision that was not available before the decision; and that by not hearing that evidence, the party applying for the proceeding to be reopened would suffer substantial injustice.

But what does “substantial injustice” mean in the context of Appealing a QCAT Decision?

Substantial Injustice

The case law have defined substantial injustice to mean:

1. A mistake by the Tribunal – Tim Hook t/as Asset Tiling Services v North Brisbane Homes Pty Ltd (in liquidation) [2013] QCAT 240.
2. Not being given the notice of hearing as required – N+S Newham Pty Ltd v Cost-U-Less Concreting Pty Ltd [2015] QCAT 36.

However in Crawford v Commissioner of State Revenue [2014] QCAT 418 the Tribunal said:

The Tribunal must act fairly and according to principles of natural justice with as little formality and as much speed as matters permit. Incorrect advice from the Registry, if given, is not a denial of procedural fairness.

This means that the level of discretion able to be given by the Tribunal is high.  Under section 61 of the QCAT Act the Tribunal may waive compliance with procedural requirements of the QCAT Act or its rules.  In the interests of dealing with the matter efficiently and without further delay the Tribunal may elect to treat an application as it sees fit.  This means that the level of discretion able to be given by the Tribunal is high, and it may waive requirements which may not be waived in Court.

The form 43 – Application for reopening, correction, renewal or amendment is here.

Setting Aside a Default Decision of QCAT

If you have been served with an application in the first instance; and you have done nothing about it; or you missed or miscalculated the time to respond; then the applicant can apply for a decision in default.

You can apply to set aside a default decision pursuant to section 51 of the QCAT Act.  Like setting aside a default judgment in the Courts, QCAT will only grant an application if the applicant can provide the following factors:

1. Do you have a prima facie defence on the merits;
2. Do you have a satisfactory explanation as to why you failed to file a response;
3. Did you delay the making of the application to set aside the QCAT decision;
4. the applicant’s good faith, including their conduct in the proceedings before and after the default decision was made; and
5. If the opposing party would be prejudiced if the decision to set aside was made.

The case of Garland and Anor v Bulter McDermott Lawyers [2011] QCATA 151 outlines the requirements in relation to setting aside a default decision in QCAT.  This case states:

Section 51 is in very similar terms to rule 290 of the Uniform Civil Procedure Rules 1999.  Decisions on Rule 290 show that, among the factors relevant to the discretion arising under it are whether or not there is a good reason for the respondent’s’ failure to file the response: any delay in bringing the application: the respondents’ conduct in the proceedings before and after judgment: the respondents’ good faith, whether the respondents have raised a defence on the merits, and whether the applicant would be severely prejudiced if the judgment was set aside.

See our article on Setting Aside a Default Judgment of the Courts here.

Appealing a QCAT Decision

An appeal of a decision in QCAT can be made on a question of law and/or fact.

An appeal can be made by Form 39 – Application for leave to appeal or appeal.

Questions of Fact for Appealing a QCAT Decision

A question of fact is where you believe that the member in the Tribunal was wrong on a factual question, for example they misread / misinterpreted the evidence; or misunderstood the technical aspects of the proceeding.

Question of Law

If you think that QCAT made a decision which is legally wrong, then you would appeal on a question of law. An appeal on any of the following grounds is an appeal on a question of law:

1. the decision applies the wrong law to the facts of the case;
2. the decision misinterprets the meaning of legislation;
3. the decision fails to apply relevant law;
4. the decision makes a finding of fact where there is no evidence to support that finding;
5. the Tribunal did not have jurisdiction to make the decision;
6. the Tribunal breached the rules of natural justice in making the decision.

Commissioner for Children and Young People and Child Guardian v Lister [2011] QCATA 22 outlines:

It is an error of law to fail to consider a relevant factor in arriving at a decision.  It is also an error of law to fail to reveal the reasoning for a decision.  It is not necessarily an error of law to attach inadequate or inappropriate weight to a particular consideration.  The distinction between an error of law and one of fact or mixed fact and law can be elusive.  In this case the distinction is an important one to draw because the Commissioner has proceeded only on an error of law.

This case applied numerous cases to make its findings:

1. It is an error of law to fail to consider a relevant factor in arriving at a decision – House v R [1936] HCA 40;
2. It is also an error of law to fail to reveal the reasoning for a decision – Cypressvale P/L & anor v Retail Shop Leases Tribunal [1995] QCA 187;
3. It is not necessarily an error of law to attach inadequate or inappropriate weight to a particular consideration – Hill v Repatriation Commission [2005] FCAFC 23; and
4. The distinction between an error of law and one of fact or mixed fact and law can be elusive – Minister for Immigration and Multicultural Affairs v Hu (1997) 79 FCR 309.

What is the Process for Appealing a QCAT Decision

QCAT member may be judicial officers (such as the President or Deputy President of the Tribunal, or a judge of the Supreme Court or District Court).

QCAT members may also be non-judicial officers (all other QCAT members and adjudicators).

If the person who made the original decision was a judicial officer then you are not able to appeal internally and an appeal can only be made to the Queensland Court of Appeal.

If the person who made the original decision was a non-judicial officer then you are able to appeal internally through the QCAT internal appeals process by using the Form 39 – Application for leave to appeal or appeal under section 149 QCAT Act.

The Case of Amundsen v Queensland College of Teachers [2011] QCATA 2 provides an example of the Appeal Tribunal’s consideration of the following factors.  The tribunal said:

The tribunal agrees with the submissions of the Respondent College that leave to appeal under those particular sections should be granted if the applicant can establish one of the following principles:

1. Is there a reasonably arguable case of error in the primary decision?

2. Is there a reasonable prospect that the applicant will obtain substantive relief?

3. Is leave necessary to correct a substantial injustice caused by some error?

4. Is there a question of general importance upon which further argument and a decision of the appellant court or tribunal would be to the public advantage?

If you are able to make out the above in relation to your particular set of factual circumstances then leave to appeal should be given.

QCAT Fees for Appealing a QCAT Decision

The fees for QCAT Appeals is between $345.80 and $2746.00 depending on matter type.  You can click through to this page to find out for sure.

Time Limits Apply to Appealing a QCAT Decision

If you do not need leave to appeal, the appeal application must be filed within 28 days after receiving written reasons for the decision pursuant to section 143(4)(a) QCAT Act.

If you do need leave to appeal, the application for leave must be filed within 28 days after receiving your written reasons in the initial decision pursuant to section 143(3) QCAT Act. If you are granted leave, then the application to appeal must then be filed within 21 days after the day leave is given, as above.

Section 61(3) of the QCAT Act allows:

The tribunal to extend or shorten a time limit or waive compliance with another procedural requirement if to do so would cause prejudice or detriment, not able to be remedied by an appropriate order for costs or damages, to a party or potential party to a proceeding.

What will the QCAT Appeal Tribunal do?

Section 146 of the QCAT Act says:

If the appeal is on a question of fact or mixed law and fact, the Appeal Tribunal may:

In deciding an appeal against a decision on a question of law only, the appeal tribunal may—

(a) confirm or amend the decision; or

(b) set aside the decision and substitute its own decision; or

(c) set aside the decision and return the matter to the tribunal or other entity who made the decision for reconsideration—

(i) with or without the hearing of additional evidence as directed by the appeal tribunal; and

(ii) with the other directions the appeal tribunal considers appropriate; or

(d) make any other order it considers appropriate, whether or not in combination with an order made under paragraph (a), (b) or (c).

Applying for an appeal is complicated and it is advisable that you seek the right legal advice.

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