Bowie v Gela [2023] QCATA 129

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Bowie v Gela [2023] QCATA 129 PARTIES: ALBERT BOWIE (applicant/appellant) v LUCY GELA (respondent) APPLICATION NO/S: APL130-22 ORIGINATING APPLICATION NO/S: MCDT328-22 Brisbane MATTER TYPE: Appeals DELIVERED ON: 20 October 2023 HEARING DATE: 29 September 2023 HEARD AT: Brisbane DECISION OF: Member Howe ORDERS: Leave to appeal granted. Appeal dismissed. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where the appellant was a tenant of the respondent who was in turn a sublessor – where the respondent gave notice to leave without grounds on expiry of the fixed term – where the appellant challenged the respondent’s title to the demised premises – where the respondent served a Notice to Leave – where the respondent commenced proceedings in the tribunal for a termination order – where the registry refused to accept the application forwarded by email with online payment details for the filing fee – where the respondent made the application again but without filing fee credit details – where there was delay in the registry processing the application – where the application was two days out of time – where the Adjudicator amended the application relying on s 61 of the Queensland Civil and Administrative Tribunal Act 2009 to make the application within time – where the appellant appeals the termination order made LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIOD – POWER OF COURT TO EXTEND LIMITATION -- 1 of 16 -- 2 PERIOD – where s 293(2) Residential Tenancies and Rooming Accommodation Act 2008 (Qld) required an applicant to make an application for termination in the tribunal within 14 days of the handover date nominated in the notice to leave – where the application was filed late due to delay on the part of the registry – whether s 61 Queensland Civil and Administrative Tribunal Act 2009 (Qld) was available to extend the time for filing Acts Interpretation Act 1954 (Qld), s 14(4) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 33, s 38, s 61 Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 293(2), s 415(1)(a), s 326(1)(d) Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 31 Amos v Fett & Anor [2016] QCATA 120 Bergin v Department of Housing and Public Works [2013] QCATA 190 Campaigntrack Victoria Pty Ltd v The Chief Executive, Department of Justice and Attorney-General & Ors [2016] QCA 37 Cummings v Cairns and District Regional Housing Corporation Ltd [2013] QCATA 161 Edenborough v Mt Isa Properties & Auctioneers [2011] QCATA 231 Gower v Woodman Sales Pty Ltd [1988] 2 Qd R 15 King v TIC Realty (No 3) QCATA 104 Lowe v Aspley [2010] QCATA 59 Parr v Queensland Police Service [2021] QCA 216 Pickering v McArthur [2005] QCA 294 Pollard & Anor v Fitzgibbon & Anor [2019] QCATA 42 Trimble v Babet [2013] QCATA 081 Vignes v Clarke [1990] 2 Qd R 593 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) REASONS FOR DECISION [1] The respondent, Ms Gela, was a tenant of a residential property on Badu Island off the Queensland Coast. Her lessor was Torres Strait Island Regional Council. [2] Mr Bowie took a sublease of the property from her with the approval of the Council. [3] It was a fixed term sub-tenancy of 12 months commencing 16 March 2020. Mr Bowie paid rent of $88 per week. The sub-tenancy agreement recorded Ms Gela as primary tenant. [4] By Form 12 Notice to Leave issued 24 November 2021 given by Ms Gela to Mr Bowie, Mr Bowie was required to vacate the premises by 24 January 2022. He did not -- 2 of 16 -- 3 do so and Ms Gela commenced proceedings in the tribunal seeking recovery of the premises and issue of a warrant of possession. [5] The matter was heard by an Adjudicator on 13 April 2022 and a termination order was made and a warrant of possession issued to police. [6] Mr Bowie filed an application for leave to appeal the decision on 12 May 2022 and sought a stay suspending the operation of the warrant of possession pending appeal. An interim order suspending the operation of the warrant was made on 17 May 2022 but on final hearing on 29 June 2022 the application for stay was dismissed. [7] A further warrant of possession was issued on 14 July 2022 and that warrant was executed. [8] Though Mr Bowie is no longer at the property he maintains his application for leave to appeal. [9] Given this is an appeal from a decision made in the Tribunal’s minor civil dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.1 [10] Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.2 [11] Initially Mr Bowie raised broad brush grounds of appeal concerning the addition of the Council as a respondent and the Human Rights Act 2019 (Qld) and Torres Strait Islander Land Act 1991 (Qld) as well as a “decision of fact which was not verified with evidence.” [12] In final submissions Mr Bowie limited himself to one ground of appeal as follows: The Adjudicator erred in exercising her discretion pursuant to s 61(3) Queensland Civil and Administrative Tribunal Act 2009 to extend the time for filing the application given exercise of the warrant of possession caused the appellant, as a party to the proceeding, prejudice or detriment not able to be remedied by an appropriate order for costs and damage. [13] In his submissions Mr Bowie offered the concession that the Adjudicator had discretion under s 61 to extend the time limit fixed for the start of the termination proceedings. The hearing below [14] The hearing took place on two separate days. On the first day Mr Bowie raised an issue that Ms Gela’s application for termination had been filed late and was out of time. The learned Adjudicator adjourned the hearing, directed the parties to make submissions about the late filing and made enquiries of the registry about the date of filing. [15] Before the return of the matter on the second day the registry sent an email to the registrar about the matter and the registrar forwarded that email to the Adjudicator on 16 March 2022. The email read: 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294 [3], cited with approval Parr v Queensland Police Service [2021] QCA 216 [7]. -- 3 of 16 -- 4 We have investigated MCDT328-22 in relation to the filing date and whether or not the application was made in time. • This application was received via email on 4 February 2022 however the applicant (Lucy Gela) attached a completed Credit Card Authorisation Form. In line with DJAG’S financial policies and procedures (security of customer credit card data) this poses a security risk as we are not allowed to accept credit card details over email. • On 7 February 2022 Client Services emailed Ms Gela and advised that she would need to resubmit her application without the Credit Card Authorisation Form and was advised that her email had been deleted. She was also advised that QCAT would contact her for payment over the phone. • Ms Gela resubmitted her application via email the same day (7 February 2022) however the payment was not processed until 10 February 2022. This delay was not within Ms Gela’s control as QCAT has no way of securing payment for emailed applications, she was required to wait for a Client Service Officer to make contact and take payment details over the phone and then the cashier processed the payment thereafter. The Practice Directions allowing applications to be received via email were introduced only a few weeks prior to this occurrence and it took some time to adjust the new processes for taking payments. • The application was date stamped as received on 9 February 2022 however it should have been date stamped as received on 7 February 2022. This was a human error and will be addressed in training with the Client Services Staff. [16] There are a number of immediate observations and conclusions to be drawn from this email. First, it was not the responsibility of the registry to determine whether or not the application for termination had been filed within the time prescribed by s 293(2) Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘RTRAA’). Second, the email forwarded by Ms Gela on 4 February 2022 (with application attached) was deleted by the registry, but there is no suggestion that that was done on instruction from the registrar. Third, either the registry equates the date of filing as the date the mechanical date stamp is stamped on the hard copy of the application; or the registry understands the date of filing is the date of presentation of the application; or the registry avoids the issue of the date of filing of the application. Fourth, and perhaps most remarkable, there is no mention of the stamping of the seal of the tribunal on the application. [17] The Adjudicator said this in handing down her reasons for decision: The evidence unequivocally supports that the application was, in fact, electronically filed by the applicant on the 4th of January 2022 (sic). It was actually not accepted by the registry due to credit card information being contained in the application and this rejection was communicated to the applicant. The – section 31 of the QCAT rules sets out the procedure to be followed by the registry after a document has been filed in the tribunal, and section 31(a) provides that a document is filed when the principal registrar records a document and stamps the tribunal’s seal on it; the procedure here being the stamping of the tribunal’s seal upon receipt of a document. Now, the applicant electronically refiled the application by email on 7 January 2022 (sic), omitting the credit card information, and the application was not -- 4 of 16 -- 5 stamped by the registry until 9 January 2022 (sic). Section 293(c) (sic) of the Residential Tenancies and Rooming Accommodation Act provides that an application for termination for failure to leave must be made within two weeks after the handover date. Now, the requirement that the application be made within two weeks and substandard (sic) and numerous tribunal cases have confirmed the time period is not procedural and cannot be extended.Now, inquiries were made with the registry because of the fact that the evidence supported the fact that the application had been filed well and truly within time, and I received confirmation from the registry that the application had been received as of the 7th of February 2022 and that the date stamping of the 9 February was done as in human error and it should actually be the 7th of February 2022. Now, arguably section 61 of the QCAT Act is designed to prevent such injustices from occurring as would occur in this case that, as a result of human error, the application was not accepted as being the date, and I amend the application accordingly so that the date for filing is taken to be the 7th of February 2022. [18] Though commenting that the general view of the tribunal was that the time period set by s 293(2) RTRAA to file an application was a substantive requirement and time to do that could not be extended, the Adjudicator said she would exercise a discretion under s 61 QCAT Act. It is not clear but perhaps the Adjudicator misspoke when she referred to s 61 as the power to amend the date of filing to 7 February 2019. The tribunal has power to amend a document, but that is to be found in s 64 of the QCAT Act. It is not clear whether the Adjudicator purported to act on the discretion to extend time found in s 61 or amended the date of filing on the application document pursuant to s 64. [19] Careful consideration of the email from registry shows the registry did not say the date of filing was 7 February 2019 rather than 9 February 2019. The registry did not identify the date of filing at all. After reading the email from registry however, the Adjudicator seems to have conflated the date of presentation of the application with the date of filing. Whilst that was perhaps the tenor of the email from registry, the Adjudicator misinterpreted the email and thereby fell into error. [20] It is surprising that the registry simply deleted the initial application for termination together with its covering email received on 4 February 2021. DJAG’S financial policies and procedures (security of customer credit card data) cannot, without specific legislative authority, operate to effect, dilute or alter the registrar’s duties and obligations imposed by the QCAT Act and Rules with respect to filing applications. Whilst the document was not filed merely on presentation and therefore it might be argued there was no requirement to keep the document pursuant to s 230(1) QCAT Act,3 there are obligations imposed on public authorities to maintain records under the Public Records Act 2002 (Qld). By that Act “record” includes recorded information received by an entity in the transaction of business or the conduct of its affairs; public authority includes the registrar or other officer of a court with responsibility for official records of a court (defined as a court of record); and the tribunal is a court of record.4 3 By s 230(1) QCAT Act the principal registrar must, for each proceeding, keep a record containing all documents filed in the registry for the proceeding. 4 QCAT Act s 164(1). -- 5 of 16 -- 6 [21] Whilst the usual circumstances whereby leave to appeal may be granted are set out above, leave to appeal may also be appropriate where it would be to the public advantage for a decision to be made by the Appeal Tribunal. Given the registry errors made below and the importance of correct process and (timely) response by the registry with respect to filing applications, and whether the discretion under s 61 QCAT Act as applies to s 293(2) RTRAA is available to the tribunal, it is appropriate to grant leave to appeal. The appeal [22] The errors made are errors of fact and law. The appeal must therefore proceed by way of rehearing. [23] By s 293(1) and (2) Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘RTRAA’): Application for termination for failure to leave (1) The lessor may apply to a tribunal for a termination order because— (a) the lessor gave a notice to leave the premises to the tenant; and (b) the tenant failed to hand over vacant possession of the premises to the lessor on the handover day. (2) An application under this section must be made within 2 weeks after the handover day. [24] Ms Gela was required to make application for a termination order within 2 weeks after the handover date set by the Form 12 served on Mr Bowie. The hand over date was 24 January 2022. Accordingly she was required to make the application for a termination order by 7 February 2022. [25] There is a hard copy of the application for termination on the registry file. It bears the date 9 February 2022 in two places on the first page. In the box on the top right hand side of the first page immediately under the case number (MCDT 328-22) there is a space entitled ‘date”. That is where the date of filing of the document is usually recorded. It has been completed by hand and reads 9 February 2022. [26] At the top of the middle of the first page there is also a date stamp obviously made by mechanical means which reads “Received 9 FEB 2022 QCAT Brisbane”. That is apparently the date a document is received by the registry in Brisbane (whether by email or transfer from another registry). [27] Then in another box on the top right hand side there is a space entitled “Date paid”. That obviously refers to the date the filing fee has been paid. Here it has also been completed by hand with the date 10 February 2022. [28] At the foot of page one of the application there is a stamp reading “Queensland Civil and Administrative Tribunal”. That is the seal of the tribunal. [29] The essential facts are not disputed between the parties and I do not need to address them further save to say the application for termination forwarded by Ms Gela to the tribunal in Brisbane under cover of an email on Friday 4 February 2022 was resubmitted (absent payment details) on 7 February 2022. Whilst the credit card authorisation form used to try to pay the filing fee was rejected by the registry, there is no suggestion that the wrong amount was tendered. -- 6 of 16 -- 7 [30] If Ms Gela made her application to the tribunal on either 4 or 7 February 2022, she made her application within time as required by s 293(2) RTRAA. If later than that, she did not. [31] If she was out of time, I must determine whether the discretion pursuant to s 61 QCAT Act is available to me, and if it is, whether the discretion to extend time should be exercised in favour of Ms Gela. The QCAT legislation [32] Section 33 QCAT Act sets out what making an application to the tribunal entails: Making an application (1) This section applies if this Act or an enabling Act provides that a person may apply to the tribunal to deal with a matter. (2) The application must— (a) be in a form substantially complying with the rules; and (b) state the reasons for the application; and (c) be filed in the registry. (3) If the application is for the review of a reviewable decision, the application must be made, by filing it in the registry, within 28 days after the relevant day. Notes— 1 Under section 6(7), an enabling Act that is an Act may provide for a different period within which a person must make an application. 2 Under section 61, the tribunal may extend the period within which a person must make an application. [33] To make an application Ms Gela was not only required to prepare a form complying with the rules and to state the reasons for the application (neither factor is challenged), but also to file it. [34] By s 35(2) QCAT Act, if a person makes an application the registrar may do a number of things, including accept or reject the application, and by s 35(2)(d), refer the application to the tribunal. [35] The tribunal is distinct from the registry. Separate provision is made for each under the QCAT Act. Section 161 of the QCAT Act establishes the Queensland Civil and Administrative Tribunal (‘the tribunal’). The tribunal is constituted by its members as provided for in Part 2 of Chapter 4 of the QCAT Act. [36] Section 207(1) establishes the Queensland Civil and Administrative Tribunal Registry (‘the registry’). The registry consists of the principal registrar and the registrars and other administrative staff of the registry (s 207(2)). The registry is the registry for the tribunal (s 207(3)). [37] By s 38(1) an applicant must pay the prescribed fee for the application. By s 38(2) the tribunal must not take any action on an application until the fee is paid, save the tribunal may direct the principal registrar to accept or reject the application under s 35. The prohibition on further action applies to the tribunal, not the registry. The -- 7 of 16 -- 8 registry may continue the filing process which, by Rule 31(1) Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (‘QCAT Rules’), requires the principal registrar to do two things. Record the document (in which process the registrar will give the application a distinct filing number) and stamp the tribunal’s seal on it. [38] There is no specific provision in the QCAT Act or Rules about dating receipt of an application in the course of filing. [39] An application can therefore be filed in the tribunal for the purpose of s 33 before the filing fee is paid. Consequently, there is nothing in the QCAT Act or Rules to justify the registrar delaying the process of filing until the filing fees are paid. Nor allowing the registry to reject an application because filing fees are not tendered in a manner considered acceptable by the registry. [40] Any delay in processing the filing of applications should be anathema to the registry. In the Full Court decision of Gower v Woodman Sales Pty Ltd [1988] 2 Qd R 15, Macrossan J had this to say about prompt filing:5 Although the rules considered do not expressly say so I am of the opinion that it is sufficiently clearly implied, and it should be taken, that they provide that when writs if in proper form and accompanied by the proper fees are presented for issue at a Registry within office hours they should then and there be accepted and issued and, if required, returned to the parties causing the writs to be issued and, in any case, should bear as the date of issue that date which in each case is in fact the date of presentation and issue. (emphasis added) [41] Similarly in QCAT, 35 years later, the date of filing should be the date of presentation where the application is in appropriate form and the filing fee is duly tendered the same day (subject to that occurring within the business hours of the registry). It is not clear whether an application fulfilling those requirements (proper form and filing fee paid or able to be paid on the day) but filed online is in fact accorded that treatment. There is no reason why it should not be dealt with expeditiously. Forestalling any complaint based on limited resources, the issue becomes one of prioritising limited resources, if that be the case, but expeditious filing should be an essential priority. 5 Page 19. -- 8 of 16 -- 9 [42] Where applications are filed electronically out of office hours there may be an unavoidable hiatus between date of receipt by the registry and date of filing. Indeed that is recognised in QCAT Practice Direction 1 of 2016 (updated 14 August 2018) which provides for the filing of documents by email. It says in part: Acceptance 12 Forms submitted using the Online Form Facility or by email are, on submission, regarded as received but not filed by the Tribunal…. 13 Where a form is an application or referral the Principal Registrar may accept or reject the application or referral pursuant to the QCAT Act and QCAT Rules. 14 Forms submitted using the Online Form Facility or by email will be reviewed and either filed in accordance with QCAT Rules r 31(1) or refused pursuant to QCAT Rules r 32. 15 There may be a time delay between submission of a form using the Online Form Facility or by email and the time the document is filed. (emphasis added) [43] The Practice Direction says nothing about refusing an application lodged online because a completed credit card authorisation form is attached, nor that payment is required to be made by telephone. [44] Nor does the other Practice Direction referred to in the email from the registry set out above say anything about that, which Practice Direction came into effect approximately one month prior to Ms Gela filing her first application. [45] Practice Direction 2 of 2022 dated 7 January 2022 came into effect to address the Covid emergency effecting Queensland and Australia at the time. It required applications and other documents filed in Brisbane to be filed electronically rather than in person, including applications in tenancy matters. In tenancy matters all applications, regardless of the location of the property concerned, may be filed in Brisbane registry.6 That Practice Direction had only this to say about payment of filing fees: PAYMENT OF FILING FEES FOR INITIATING APPLICATIONS AND COUNTER-CLAIMS 12. When filing an initiating application or, where permitted under the QCAT Rules, a counter-claim, the applicable filing fee MUST be paid before the application or counter-claim can progress, unless the fee has been waived in any given case. [46] The registry wrongly deleted Ms Gela’s first application for termination forwarded by email on 4 February 2022. [47] When Ms Gela made the same application again on 7 February 2022, it may reasonably be concluded that on 9 February 2022, registry staff recorded the application in the registry of proceedings by giving it file number MCDT328-22, noted that date on the form in the appropriate place as the filing date and then stamped 6 QCAT Rules r 8(b). -- 9 of 16 -- 10 the document with the tribunal seal. That was therefore the date of filing of the application. [48] The mechanically stamped date of receipt in Brisbane registry of 9 February 2022 was wrong. It should have been 7 February 2022. The date of payment of the filing fee was correctly recorded as 10 February 2022. [49] Accordingly the application for termination was not made to the tribunal as required by s 293(2) RTRAA within 2 weeks after the handover date set by the Form 12 served on Mr Bowie. The application was therefore made out of time. Fault [50] From time to time there have been issues in the Courts concerning registry practice in accepting and filing documents. [51] In Gower v Woodman Sales Pty Ltd the plaintiff’s solicitors presented a writ for issue in a regional registry. The filing fee paid was $23, but the fee required was $26. The writ and cheque was accepted, the file copy of the writ was endorsed “Date filed 20.11.78” and the writ entered in the causes book. The matter of a shortfall in the filing fee was not raised with the solicitors by registry. The sealing and witnessing of the writ was left to be attended to the following day. [52] The next day the registry received a cheque for $3 and the file copy of the writ endorsed “date filed 21.11.78”, which made two endorsements on it. The original writ was signed by the registrar, sealed, dated 21 November 1978 and collected by the solicitors. [53] Macrossan J (in the majority) found that fault lay with the registry in delaying issue and not telling the solicitor that the fee originally tendered was insufficient. The rules of court required that no document requiring payment of a filing fee should be received or sealed or filed until the filing fee was paid. [54] The learned Judge said that the authorities indicate that fault responsible for delay in issue of a writ is a relevant matter. His Honour referred to a number of authorities including Evans v Jones (1862) 2 B & S 45; 121 ER 99 and E Ryan & Sons Ltd v Rounsevell (1910) 10 CLR 176 where it was made clear that if it was the fault of the courts’ own officers it was appropriate to order alteration to be made nunc pro tunc (meaning now for then, correcting the date retrospectively). [55] Macrossan J found there was power in the then Rules of Court to order amendment, and whilst saying it was unnecessary given the power to amend in the rules, recounted that the Judge below had concluded there was a discretion to order amendment. [56] Similarly in Vignes v Clarke [1990] 2 Qd R 593 a District Court Plaint was rejected by the registry because it did not contain some endorsements at the end and it was returned to the solicitors clerk. It was not presented until the next day, when it was out of time. Connolly J said:7 This is a plain case of a defect or act, call it what you will, on the part of the court’s officer having led to the rejection of a plaint which was in all respects in due form as the learned judge has found. 7 At 594. -- 10 of 16 -- 11 The requirement — apparently a local requirement and it is quite a sensible one — that typed provision be made for the date of presentment of the plaint and for the signature of the Registrar or his clerk are not requirements of the general form of plaint. I can see no objection to local practices which call for such convenient additions but their absence cannot warrant the rejection of a plaint which is in due form under the Act and Rules. In fact, I think it desirable to say that officers should not reject documents of this sort but should accept them and file them, and if there be any fatal defect in them, that matter can be resolved by the court itself at an appropriate time. [57] Dowsett J added:8 I particularly am in agreement with the proposition that the Registry staff of any court should not refuse to accept originating proceedings. [58] The late filing in the matter at hand was not Ms Gela’s fault. Practice Direction No. 2 of 2022 had come into effect and required her to use the online facilities of the registry to file her application. Had the registry duly processed the online application she made on Friday 4 February 2022 on that day, or the next business day, which was Monday 7 February 2022, she would have been in time. She was contacted about the Credit Card Authorisation Form during registry business hours on Monday 7 February 2022. She should have been contacted about payment by telephone and the application of 4 February processed instead. The fault lay entirely with the registry. [59] There is no general discretion to correct, as referred to by the primary decision maker in Gower v Woodman Sales Pty Ltd, reposed in the tribunal. The tribunal is an inferior court of record and all jurisdiction arises and is limited by the legislation granting jurisdiction. Section 61 QCAT Act [60] The tribunal has power in s 61 to grant relief from procedural requirements by extending or shortening a time limit fixed by the QCAT Act or an enabling Act or the Rules: 61 Relief from procedural requirements (1) The tribunal may, by order— (a) extend a time limit fixed for the start of a proceeding by this Act or an enabling Act; or … (3) The tribunal can not 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. [61] From earliest decisions the tribunal stated that the RTRAA was “prescriptive about the requirements for issuing Notices and commencing proceedings”. There has been little detailed exploration of that proposition to date, particularly as far as it concerned commencement of proceedings. 8 At 595. -- 11 of 16 -- 12 [62] In Lowe v Aspley [2010] QCATA 59 a real estate agent had issued a Form 11 notice to remedy breach for failure to pay rent. Within the prescribed time set by the notice to remedy breach the tenant had paid the amount claimed. Despite that, the lessor’s real estate agent subsequently issued a Form 12 notice to leave and then commenced proceedings for a termination order based on the tenant’s failure to pay rent which became due after the Form 11 notice to remedy breach had been satisfied. The appeal tribunal (Judge Kingham) said:9 [10] While Mr Lowe owed further rent after he remedied the breach that had been notified, that did not provide the factual basis for commencing proceedings to terminate the tenancy agreement. The RTRA is prescriptive about the requirements for issuing Notices and commencing proceedings. The consequences that can flow from a tenant’s failure to comply with Notices issued under the RTRA explains the degree of prescription…. [11] The requirements are not merely a matter of form; they are preconditions to QCAT’s jurisdiction to grant relief under the RTRA. The path that the agent took to proceedings in QCAT in this case required a series of steps to be taken in order. Each stood like one in a line of dominos. If one fell it brought the others down with it. [63] Section 61 was not flagged in the matter nor was it relevant to any of the issues in dispute. The prescriptive element there concerned the requirement to issue serried Forms 11, then 12, then application for termination, all linked. [64] In Edenborough v Mt Isa Properties & Auctioneers [2011] QCATA 231 the comment made by Judge Kingham in Lowe v Aspley that the RTRAA was prescriptive about the requirements for issuing notices and commencing proceedings was referred to by Wilson J with approval in circumstances where the application for termination had been made some 6 weeks late. No reference was made to the possibility of exercising the discretion under s 61. [65] Trimble v Babet [2013] QCATA 081 concerned a lessor’s failure to file a dispute resolution request with the Residential Tenancies Authority before applying to the tribunal for compensation as required to be done by the RTRAA s 416. Justice Wilson did not refer to Lowe v Aspley but did say the RTRAA was intended to be prescriptive in governing the procedure for determining disputes arising under residential tenancies. Again there was no consideration of s 61. [66] In Bergin v Department of Housing and Public Works [2013] QCATA 190, the appeal tribunal relied on Lowe v Aspley [2010] QCATA 59 simply as authority for the proposition that the time to file an application under s 293 RTRAA could not be extended by exercise of the s 61 power. [67] In Cummings v Cairns and District Regional Housing Corporation Ltd [2013] QCATA 161 Justice Wilson had before him a late application by a tenant made under s 292 to set aside a claimed retaliatory Form 12 notice to leave given the tenant by the lessor. The tenant was nearly 4 months late in applying to set aside the Form 12 claimed to be retaliatory. After stating that the RTRAA was prescriptive in its requirements about issuing notices and commencing proceedings, Justice Wilson did 9 At paragraph [10]. -- 12 of 16 -- 13 go on to consider whether the discretionary power under s 61 warranted exercise. Rather than conclude s 61 had no application his Honour said: [23] For the sake of completeness, nothing in these circumstances warranted consideration of an order under s 61 of the QCAT Act – ie extending time for her application from 2 October 2012 to 31 January 2013. [68] Clearly his Honour thought s 61 might be available in very similar circumstances to an application for termination under s 293, despite the “prescriptive” nature of the RTRAA, but the facts in that case did not warrant exercise of the discretion. [69] Before that in King v TIC Realty (No 3) [2010] QCATA 104, Wilson J, after noting that the tribunal is required to be accessible, fair, just, economical, informal and quick (s 3(b) QCAT Act), and to act informally and without technicality (s 28 QCAT Act), had said “QCAT also has a very wide discretion to extend times, including time periods set by statutes and legislation: s 61”.10 [70] Other provisions in the RTRAA setting a time limit for taking a step or doing something, such as s 41711 and 419,12 have uniformly been interpreted as substantive rather than procedural without scope to extend time through s 61 QCAT Act. Those decisions concerned what are described as non-urgent applications, where the legislature has required parties to such a dispute to attend conciliation before making application in the tribunal. In Amos v Fett & Anor [2016] QCATA 120 Carmody J said: [14] … the process for applying to QCAT about a tenancy agreement dispute is subject to the RTRA Act. Chapter 6 Part 1 of the RTRA Act provides for an assisted process to help and encourage parties to a tenancy dispute to resolve their differences without litigation. Although the conciliation process is not compellable, s 416(1) RTRA Act has the practical effect of making unsuccessful conciliation a precondition to tribunal proceedings about a non-urgent residential tenancy issue, by requiring the parties to make a dispute resolution request before applying to QCAT (the conciliation condition). [15] As an incorporated modifying provision about when a party “may apply under the RTRA Act to (QCAT) about an issue”, s 416(1) of that Act prevails over any contrary QCAT Act provision to the extent of any inconsistency. [16] Non-urgent proceedings commenced in the tribunal out of time, irregularly or without either party making a dispute resolution request are incurably defective and cannot be perfected by waiving the non- compliance under s 61(1) QCAT Act so as to give the tribunal jurisdiction it does not otherwise have. [71] By contrast, an application for termination under s 293(2) RTRAA because of failure to leave is an urgent application13 and the prior conciliation requirement does not apply. 10 [10]. 11 Keating v Bidenko [2019] QCATA 24 [9]; Place West Rentals v Brooks and Anor [2012] QCAT 511 12 Sendall v Howe and Anor [2012] QCATA 41. 13 S 415(1)(a). -- 13 of 16 -- 14 [72] In Campaigntrack Victoria Pty Ltd v The Chief Executive, Department of Justice and Attorney-General & Ors [2016] QCA 37 there was a claim made against a fund administered by the Chief Executive covering loss caused by breaches of trust account obligations by real estate agents. By s 473(5): (5) If the claim is not made within the time allowed under section 472, the chief executive must give the person a notice in the approved form stating that— (a) the claim is out of time; and (b) the person may apply to the tribunal, within 14 days after being given the notice, for an extension of time within which to make the claim. [73] Section 472(2) provided: (2) A person may make the claim against the fund only if the person makes the claim within the earlier of the following— (a) 1 year after the person becomes aware that the person has suffered financial loss because of the happening of an event mentioned in section 470(1); (b) 3 years after the happening of the event that caused the person’s financial loss. [74] Campaigntrack did not make an application within the time allowed by s 472. The Chief Executive gave the company the notice under s 473(5) but Campaigntrack did not apply to the tribunal for an extension of time within the required 14 days. An issue arose as to whether Campaigntrack could apply to the tribunal pursuant to s 61 QCAT Act for an extension of the 14 day time limit. [75] Applegarth J (Margaret McMurdo P and Henry J agreeing) said this about s 61: [48] Section 61 exists for a variety of cases in which enabling Acts or the QCAT Act may fix a time limit or impose other procedural requirements. Its presence removes the need to laboriously insert in numerous enabling Acts words such as “unless the Tribunal extends the time or waives compliance with this requirement” in conjunction with time limits or other procedural requirements. [49] Section 61 will not apply if the enabling Act indicates otherwise, for example, by stating that the period cannot be extended, that s 61 of the QCAT Act does not apply to empower the Tribunal to extend the time,[30] or that an application must be brought in a certain time, failing which the Tribunal shall not decide the application. Where an intent to preclude an extension of time under s 61 is evident, there will be an inconsistency between the modifying provision and s 61 so that the modifying provision prevails in accordance with s 7 of the QCAT Act. [76] In Pollard & Anor v Fitzgibbon & Anor [2019] QCATA 42 Member Gordon concluded that in light of Campaigntrack, the use of the word “must” may help to show the intention of the legislature, but it cannot be conclusive.14 14 [42] -- 14 of 16 -- 15 [77] Of course Applegarth J should not be taken to be saying that the word “must” should now be translated as “may”. [78] Apart from the explicit imperative conveyed by the use of the word “must” in s 293(2), is there other guidance from the legislation that conveys an indication that there is no scope to have that period extended under s 61 QCAT Act? [79] Applegarth J also said in Campaigntrack: [44] One should not lightly infer a legislative intent to shut out deserving claimants from seeking an extension of time under s 511. For example, a claimant might fail to apply for an extension of time within the 14 day period stated in the notice because he or she was in a coma in hospital and unable to make the application. One can imagine other deserving circumstances in which a claimant fails to make the application within the 14 day period stated in the notice. [80] Generally, the consequences of excluding use of s 61 in urgent tenancy matters are markedly different to those mentioned by Applegarth J in Campaigntrack. There, the right to claim was lost forever. In tenancy matters that is not necessarily the case, at least with respect to termination applications. Had the application for termination been dismissed by the Adjudicator below, Ms Gela would have been entitled to bring the same application again, though delayed by being required to serve a fresh Form 12 Notice to leave giving a new 2 month hand over date. If that expired without the tenant giving up possession, then she was entitled to make another application for termination under s 293. [81] The most common application for termination is that based on a tenant’s failure to pay rent on time. The preliminary steps are much quicker than notice to leave at end of term. Had an applicant lessor’s application for termination based on failure to pay rent been refused because it was outside the 14 day period set by s 293(2), the lessor could simply issue a new Form 11 giving 7 days to pay followed by a Form 12 Notice to Leave with a 7 day handover date before again applying under s 293(2). [82] As stated, an application for termination because of failure to leave is an urgent application15 as defined in the RTRAA. Urgent applications generally have an element of urgency about them. Requiring an applicant party to address that urgency by filing application in the tribunal within 2 weeks of the failure of the tenant to leave the premises is not unreasonable. [83] Generally, the RTRAA is prescriptive as to dates. Handover dates vary, depending on the basis of claim and the tenancy concerned, from 7 days, 14 days, 4 weeks to 2 months for premises that are not moveable dwellings and 2 days, 7 days 4 weeks, 2 months and 3 months for those that are. The correct date for handover must be stated in any notice to leave.16 [84] There is a slip rule in the RTRAA. By s 349 the tribunal may make a termination order on the basis of failure to leave if it is appropriate to do so even though the notice to leave contains a defect. That is the only concession to required form allowed under the RTRAA. Section 349 does not extend to flexibility concerning commencement of 15 RTRAA s 415(1)(a). 16 RTRAA s 326(1)(d). -- 15 of 16 -- 16 proceedings. The existence of the very limited slip rule also reinforces the prescriptive nature of other provisions of the RTRAA. [85] In conclusion, I determine there is a prescriptive regime concerning the issuing of notices and commencement of proceedings under the RTRAA as postulated in Lowe v Aspley, and the extension of time provisions of s 61 QCAT Act is a tool not available to the tribunal for relief where an application to the tribunal under s 293(2) is out of time. [86] Ms Gela’s application was out of time, regardless that the fault for that lies with the registry. The Application should have been dismissed. Disposition [87] The futility of further proceedings in the Tribunal is clear. [88] Mr Bowie acknowledges that handover occurred on 21 September 2022 pursuant to execution of a warrant of possession. Ms Gela has retaken possession of the property. Or perhaps she has moved on and another tenant is in residence. There is no information about that. [89] Other than the error relying on s 61 QCAT Act, Mr Bowie had no substantive defence to resist Ms Gela’s claim to possession. It is not appropriate to disturb current possession of the property. Mr Bowie’s tenancy was for a fixed term and the term ended more than 2 years ago. [90] The appropriate order is to dismiss the appeal. -- 16 of 16 --