BTG [2025] QCAT 273

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: BTG [2025] QCAT 273 PARTIES: In an application about matters concerning BTG APPLICATION NO: REO010-25 MATTER TYPE: Guardianship matter DELIVERED ON: 3 July 2025 HEARING DATE: On the Papers HEARD AT: Brisbane DECISION OF: Senior Member Browne ORDERS: TKE’s application for an extension of time to file the application for reopening is refused. The application for reopening filed by TKE on 8 April 2025 is dismissed. CATCHWORDS: PROCEDURE – STATE AND TERRITORY TRIBUNALS: JURISDICTION, POWERS AND GENERALLY – REOPENING OF PROCEEDINGS – where application for reopening was filed outside the prescribed time under the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) – where application for extension of time is required – whether time for filing the application for reopening should be granted – usual considerations for granting an extension of time identified and considered – where delay in filing the application is lengthy – where applicant attended the hearing – whether an extension of time should be granted – where extension of time is refused – whether application for reopening should be dismissed under s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) Guardianship and Administration Act 2000 (Qld), s 31, s 103, s 119, s 130 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 29, s 47, s 61, s 122, s 138, s 139 Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 92 Harper Property Builders Pty Ltd v Queensland Building and Construction Commission [2018] QCATA 70 Underwood v Queensland Department of Communities (State of Queensland) [2012] QCA 158 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) -- 1 of 7 -- 2 REASONS FOR DECISION [1] TKE, BTG’s mother, applies for a reopening of proceedings before the Tribunal heard and determined under the Guardianship and Administration Act 2000 (Qld) (‘GA Act’).1 TKE also applies for an extension of time to file the application for reopening because the application was not filed within the time prescribed under the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (‘QCAT Rules’).2 [2] It is readily apparent from reading the written submissions filed in support of the application for reopening, that the relevant proceeding TKE seeks to reopen is the guardianship matter concerning TKE’s daughter, BTG.3 Further, as can be seen in TKE’s application to extend the time for filing the application, TKE refers generally to the Tribunal’s proceeding in ‘April 2024’ as being the relevant proceeding to be reopened.4 What was the Tribunal’s proceeding about? [3] The Tribunal heard and determined applications for the appointment of a guardian and administrator and for a confidentiality order about BTG under the GA Act. [4] The guardianship matter concerning BTG proceeded to an oral hearing before the Tribunal on 8 April 2024. Following the oral hearing, the Tribunal gave notice of oral reasons to relevant parties in the late afternoon on 8 April 2024. On 9 April 2024, the Tribunal’s decision and oral reasons were given to the parties. [5] By order dated 9 April 2024, the Tribunal appointed the Public Guardian as guardian for BTG to make decisions about certain personal matters and the Public Trustee of Queensland as administrator for BTG to make decisions about all financial matters. The Tribunal ordered that the appointments are reviewable and are to be reviewed in two (2) years.5 The Tribunal also made a confidentiality order pursuant to s 109 of the GA Act in respect of written statements containing allegations against TKE. The Tribunal also dismissed an application for miscellaneous matters filed on 3 April 2024 by TKE. [6] The Tribunal’s record shows the following: (a) TKE attended the hearing together with her legal representative on 8 April 2024 and had the benefit of hearing the Tribunal’s decision and oral reasons delivered on 9 April 2024. (b) On 10 April 2024, QCAT provided TKE with the Tribunal’s decision together with appeal rights. 1 See Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) s 139. 2 Application for an extension of time filed on 21 May 2025 in compliance with the Tribunal Directions dated 6 May 2025. See QCAT Rules r 92 that provides an application for reopening must be made within 28 days after ‘the relevant day’. The ‘relevant day’ is ‘the day the party is given the written reasons’; or ‘the day the party is given notice of the decision’. 3 Application for reopening filed on 8 April 2025. 4 Application to extend the time for filing the application filed on 21 May 2025. See also QCAT Act s 138(2). 5 By order dated 8 April 2024 the Tribunal appointed a representative for BTG pursuant to GA Act s 125. Notice of the oral hearing (for giving oral reasons) was given to all parties including TKE and her legal representative on 8 April 2024. -- 2 of 7 -- 3 (c) The Tribunal made a further order on 11 April 2024, amending Order 7 of the Tribunal’s Decision dated 9 April 2024 made pursuant to s 109 of the GA Act. (d) The Tribunal made Directions dated 11 April 2024, directing relevant persons to refile their evidence in a redacted format. (e) The Tribunal provided a copy of various redacted documents to TKE by email dated 7 November 2024. [7] Further, on 16 October 2024, TKE requested written reasons under s 122(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) in respect of the Tribunal’s proceedings made on the following dates: 6 (a) 11 January 2024, concerning an interim order made by the Tribunal under s 129 of the GA Act; (b) 8 April 2024, concerning the Tribunal’s hearing of the applications concerning BTG; and (c) 17 June 2024, concerning a proceeding that was later identified by QCAT as ‘no proceeding’. The application for reopening [8] Under s 138 of the QCAT Act a party to a proceeding may apply to the Tribunal for the proceeding to be reopened if the party considers that a reopening ground exists. The Tribunal may grant the application where a reopening ground exists, and the ground could be ‘effectively and conveniently dealt with by reopening the proceeding’.7 [9] As provided under Schedule 3 of the QCAT Act, a ‘reopening ground’ for a party to a proceeding means— (a) the party did not appear at the hearing of the proceeding and had a reasonable excuse for not attending the hearing; or (b) 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 and determined. [10] Although not specifically stated by TKE in the application for reopening, TKE is relying upon the second reopening ground identified above because TKE attended the Tribunal’s hearing on 8 and proceeding on 9 April 2024. [11] The time prescribed for filing an application for reopening is found in rule 92 of the QCAT Rules that provides an application for reopening must be made within 28 days after ‘the relevant day’. The ‘relevant day’ means, amongst other things, ‘the day the 6 A party to a proceeding may, within 14 days after the decision takes effect (when the decision is made), request that the Tribunal give written reasons for the decision under s 122 of the QCAT Act. The record shows that TKE did not make a request for written reasons under s 122 in respect of the Tribunal’s decision on 9 April 2024. 7 See QCAT Act s 139; Underwood v Queensland Department of Communities (State of Queensland) [2012] QCA 158, [39]. -- 3 of 7 -- 4 party is given the written reasons’; or ‘the day the party is given notice of the decision’.8 [12] In the present case, the ‘relevant day’ for filing the application for TKE’s reopening is the day TKE is given notice of the Tribunal’s decision, as provided under the QCAT Rules. The application for reopening is clearly out of time because it was not filed within 28 days after TKE ‘is given notice of the decision’, on 10 April 2024. Application for an extension of time [13] The Tribunal may extend a time limit fixed for the start of a proceeding such as an application for reopening.9 Section 61(3) of the QCAT Act provides that the Tribunal cannot extend or shorten time 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 to a proceeding.10 [14] The usual considerations that apply in the granting of an extension of time include the length of delay, whether the party has provided an adequate explanation for the delay, the merits of the proceeding, prejudice to others, and the interests of justice.11 [15] In the present matter, the application for reopening is filed on 8 April 2025. The time for filing the application for reopening commences from the date TKE is given the Tribunal’s decision. The application for reopening is therefore 335 days outside the prescribed time of 28 days counting from and including 11 April 2024 the day after TKE is given the Tribunal’s decision together with appeal rights (on 10 April 2024).12 This is a lengthy delay. [16] TKE identifies a number of issues that may be relevant to the considerations for granting an extension of time such as the merits of the proceeding, prejudice to others and the interest of justice. In TKE’s application for an extension of time, TKE states, amongst other things, the following: (a) No procedural fairness provided in the [April] hearing, and to date, by [the Member]. (b) Member failed to provide any information/allegations to allow a thorough understanding of the matter and therefore no opportunity for me to respond. (c) Member directed persons to provide statements with false allegations, redacted within 2 weeks. Did not occur. (d) [BTG’s Father] applied for a further confidentiality order, which was considered on the papers [June] 2024 by [the Member]. (e) To date there has been no written or verbal communication of the decision from this matter or any information provided to date. (f) Numerous concerns and complaints to QCAT regarding this matter and [the Member] have been ignored. 8 See QCAT Act sch 3 (definition of ‘decision’). 9 See QCAT Rules r 92; QCAT Act s 61. 10 QCAT Act s 61(3). 11 Harper Property Builders Pty Ltd v Queensland Building and Construction Commission [2018] QCATA 70, [26]. 12 The ‘relevant day’ for calculating time is 10 April 2024 the day TKE was given the Tribunal’s decision. -- 4 of 7 -- 5 (g) Received legal file from [the QCAT case manager] finally allowing me to respond to this matter. [17] Relevant to the merits of the application is TKE’s submissions filed in support of the application for reopening. TKE submits, amongst other things, the following: (a) On 19 March 2025, I finally received all documents on the above file from [the QCAT case manager]. (b) Over 14 months (since January 2024) I have waited for procedural fairness, transparency of decisions, and natural justice from QCAT. (c) I have not been given an opportunity to respond to any of these false, fabricated, and unproven allegations … QPS stated there was collusion and intentional intent to hurt both my daughter and myself. (d) [The Member] also set about expressing opinions and ignoring the rulings of a Magistrates Court regarding domestic violence … This is unethical, unprofessional and misconduct. (e) Over the past 14 months I have gathered evidence to support every statement in my Affidavit. I would like to bring to your attention the following actions of those individuals who provided submissions or made these false and fabricated statements… Consideration of the application for an extension of time [18] I am not satisfied based on the material before me that TKE has provided an adequate explanation for the delay in filing the application for reopening that I have found is a lengthy delay of 335 days. [19] As identified in paragraph [16] above, TKE says that ‘[t]o date there has been no written or verbal communication of the decision from this matter or any information provided’. The record shows, however, that TKE attended the Tribunal’s oral hearing on 8 April 2024 together with her legal representative and had the benefit of hearing the Tribunal’s oral decision and reasons given on 9 April 2024. It is open for me to find that as at 10 April 2024, TKE was aware of the Tribunal’s decision. [20] I have considered the merits of TKE’s application. In paragraphs [16] and [17] above, TKE says that she was not afforded procedural fairness in the April proceeding and amongst other things says the Member failed to provide any information to allow a thorough understanding of the matter and an opportunity to respond. [21] In addition to relevant provisions in the GA Act, the QCAT Act requires the Tribunal, in conducting a proceeding, to act fairly and according to the substantial merits of the case and amongst other things to observe the rules of natural justice and may inform itself in any way it considers appropriate.13 [22] As an applicant and active party for the purposes of s 119 of the GA Act, in the proceeding on 8 April 2024, TKE must be given a reasonable opportunity to present her case and, subject to any confidentiality order made under s 103(5), to access relevant material before the start of a proceeding, during a hearing and after a hearing and to make submissions about a document or other information accessed under s 13 QCAT Act s 28. -- 5 of 7 -- 6 103(1).14 Relevantly, s 103(5) of the GA Act, permits the Tribunal to displace an active party’s right to access a document or other information only by a confidentiality order.15 [23] In the present matter the Tribunal made a confidentiality order under s 109 of the GA Act in respect of written statements containing allegations against TKE. [24] As discussed above, the Tribunal by order dated 11 April 2024, amended Order 7 of the order made on 9 April 2024 and directed that the relevant persons who filed the written documents in the Tribunal containing allegations against TKE ‘refile their evidence’ redacting relevant information as specified in the Directions dated 11 April 2024 and the Amended Decision made on 11 April 2024. [25] I accept there was a delay in providing TKE with a copy of the redacted documents considered by the Tribunal in the proceeding on 8 April 2024. The record shows that QCAT provided the documents to TKE on 7 November 2024. The delay in providing a copy of the relevant documents to TKE is unfortunate. [26] TKE does not explain, however, why she did not take the necessary steps to preserve her rights with respect to a possible reopening ground by filing the necessary application within the prescribed time in circumstances where she attended the hearing on 8 April 2024 together with her legal representative and had the benefit of hearing the Tribunal’s decision and reasons on 9 April 2024. [27] I have considered the interests of justice and relevant to the merits of TKE’s application, the new material that TKE says she ‘gathered’ over the past 14 months. [28] The new evidence including an affidavit is relevant to matters concerning BTG for which the Tribunal has jurisdiction to consider under the GA Act. To hear and decide a matter in a proceeding under the GA Act, the Tribunal is to ensure, as far as it considers practicable, it has all the relevant information and material before it.16 [29] As discussed above, the Tribunal’s order appointing a guardian and administrator for BTG is a reviewable order and is to be reviewed in two (2) years. Further, a relevant person can apply for a review under s 31 of the GA Act of the existing appointment of a guardian or administrator, under the GA Act and in compliance with the QCAT Rules, in relevant circumstances including for example, where: (a) new and relevant information has become available since the hearing; or (b) a relevant change in circumstances has occurred since the hearing; or (c) relevant information that was not presented to the Tribunal at the hearing has become available; And, in accordance with s 31 of the GA Act: (d) the current appointee is no longer competent; or (e) another person is more appropriate for appointment.17 14 GA Act s 103(1). See also QCAT Practice Direction No. 8 of 2021. 15 See GA Act s 130(5). 16 See GA Act s 130(1). 17 See QCAT Practice Direction No. 8 of 2010 and GA Act s 31. -- 6 of 7 -- 7 [30] I am not satisfied that the new evidence relevant to the merits of TKE’s application and the interests of justice justify extending the time for filing the application for reopening. As discussed above, the new evidence is relevant to matters concerning BTG and will be considered by the Tribunal in reviewing the existing appointments of a guardian and administrator. [31] In this matter, there is a considerable delay in filing the application for reopening and I have found that TKE’s new evidence is relevant to the BTG’s guardianship proceedings. TKE attended the hearing on 8 April 2024 together with her legal representative and had the benefit of hearing the Tribunal’s decision and reasons delivered on 9 April 2024. [32] TKE has failed to convince me that the discretion under s 61 of the QCAT Act should be exercised in her favour to extend the time for filing the application for reopening. The application for an extension of time is refused. [33] Given that the Tribunal has refused to extend the time for filing the application for reopening, it is appropriate, in proceeding under s 47 of the QCAT Act, to raise an application to dismiss the application for reopening on the basis that the application is lacking in substance. The appropriate orders will be: (a) TKE’s application for an extension of time to file the application for reopening is refused. (b) The application for reopening filed by TKE on 8 April 2025 is dismissed. -- 7 of 7 --