Elizabeth Claire Barrett & Anor v A.P.V.C. Ltd Responsible Entity For Accor Vacation Club [2022] QCATA 186

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Elizabeth Claire Barrett & Anor v A.P.V.C. Ltd Responsible Entity For Accor Vacation Club [2022] QCATA 186 PARTIES: ELIZABETH CLAIRE BARRETT BARRY DOUGLAS BARRETT (applicant/appellant) v A.P.V.C. LTD RESPONSIBLE ENTITY FOR ACCOR VACATION CLUB (respondent) APPLICATION NO/S: APL315-21 ORIGINATING APPLICATION NO/S: MCDO911/20 MATTER TYPE: Appeals DELIVERED ON: 15 November 2022 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Brown ORDERS: The application for miscellaneous matters is refused. CATCHWORDS: ADMINISTRATIVE LAW – REASONS FOR ADMINISTRATIVE DECISIONS – REQUEST FOR REASONS – reopening application – absence of reasons – request for reasons within prescribed period – no means under Act to enforce request for reasons – tribunal may do all things necessary or convenient for exercising its jurisdiction – implied powers – no power to grant relief sought by appellants – dismissing a reopening application is a final decision – no right of appeal against a decision on a reopening application APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSE – ordering a stay of proceedings – grounds for ordering a stay of proceedings Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9(4), s 58(1), s 122(2), s 122(3), s 139(5) Barrett & Anor v APVC Ltd (t/a Accor Vacation Club) [2022] QCATA 156 -- 1 of 4 -- 2 Day v Humphrey [2017] QCA 104 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 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] On 15 November 2022 I refused an interlocutory application filed by the appellants. My reasons for the decision follow. [2] The appellants were members of the respondent’s vacation club. The appellants commenced proceedings in the Tribunal’s minor civil disputes jurisdiction seeking an order for the refund of membership fees paid by them to the extent of the Tribunal’s minor civil dispute jurisdiction. On 10 August 2021 the Tribunal dismissed the appellants’ application and published reasons for the decision. [3] The appellants applied to reopen the proceeding. The reopening application was refused. The appellants subsequently sought reasons for the refusal to grant the reopening. [4] The appellants have appealed the decision of 10 August 2021. [5] The appeal proceeded to a hearing on 27 September 2022. On 4 October 2022 the Appeal Tribunal made further orders in the proceeding adjourning the application to the registry and requiring the appellants to take a further step in the proceeding within 28 days failing which the respondent would be at liberty to apply to have the proceeding dismissed.1 The Appeal Tribunal stated: [13] … at the hearing of (the application for leave to appeal) the Barretts sought to adjourn (the application) while they pursue their historic demand for reasons for the rejection of their reopening application. Mr Barrett, for the Applicants, insisted that they should not be required to present their substantive appeal until those reasons were supplied. He was not deterred by the prospect that an adjournment would inevitably and indefinitely postpone any entitlement the Barretts may eventually have to substantive relief. [14] The Tribunal offered the consideration that the demand for interlocutory reasons be subsumed to the present application for leave to appeal, in the interests of the parties and of others in the queue, the public purse, and the spirit of the QCAT legislation. In all courts, and particularly in tribunals such as QCAT, finality of litigation is a vital consideration. [15] However, Mr Barrett read and re-read with portentous emphasis section 122 of the QCAT Act, without reference to the terms or significance of section 139(5): The tribunal’s decision on the [reopening] application is final and cannot be challenged, appealed against, reviewed, set aside, or called in 1 Barrett & Anor v APVC Ltd (t/a Accor Vacation Club) [2022] QCATA 156. -- 2 of 4 -- 3 question in another way, under the Judicial Review Act 1991 or otherwise. [16] Indeed, there is support for the view that s 139(5) is fatal to an application for leave to appeal, particularly where the application for leave is effectively an attempt to overturn. However, as that point was not canvassed before me, I say no more about it here. [17] Apart from the expatiation on section 122, the Barretts invoked the mantra (or tabula in naufragio) of natural justice. I have reluctantly decided that a refusal of the adjournment may well, on balance, generate more litigious complexity than to grant it. Unsurprisingly, the Club, which continues, at least pro tem, to be free from any judgment debt, did not strenuously oppose an adjournment. [18] It is a matter for the Barretts to consider how the giving of reasons for the refusal to reopen might be enforced, and what the utility of any enforcement may be. It is not for this appeal tribunal to offer advice. If the proceedings become intolerably tortuous questions of costs inter partes might arise. [19] The application for leave to appeal will be adjourned sine die to the registry and upon conditions that the Barretts’ next step, if any, in these proceedings must be taken within 28 days of this decision. Either party is at liberty to restore the application for leave to the hearing list upon 14 days’ notice to the other, and to the registry. [6] On 27 October 2022 the appellants applied by way of an application for miscellaneous matters for directions in the following terms: (a) By virtue of s 122(3) of the Act, the President extend the period (the tribunal) has to comply with the applicants’ request for reasons made 8/11/21, in relation to (the tribunal’s) refusal … to grant a reopening…. Further (the tribunal) be allowed 21 days from the date of the President’s order to supply such reasons, and if there is a failure to supply the reasons within that time, without further order it will be deemed that there was no reason to refuse the reopening application … and further the application shall be deemed granted and the applicants shall be at liberty to file and pursue (an appeal). (b) Applicants (application for) leave to appeal/appeal … and (the) orders made … on 5/10/22 are stayed until the applicants re-opening … is finalised. (c) Such other orders as the President or Tribunal deems fit. [7] At the heart of the appellants’ application is the submission that the reopening application has never been finalised and that until such time as it has, the appeal cannot proceed. As a result, say the appellants, the appeal should be stayed until the reopening application is finalised. [8] The fundamental difficulty with the appellants’ position is that the reopening application was dismissed on 3 November 2021. Contrary to their submissions, there remains nothing to be finalised. However as the Appeal Tribunal observed, the appellants’ continued focus remains upon the absence of reasons for the dismissal of the reopening application. [9] The appellants identify no power pursuant to which the first order sought in their application may be granted. By s 122(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) a party to a proceeding may, within 14 days after a decision -- 3 of 4 -- 4 takes effect, request written reasons for the decision. By s 122(3) the request must be complied with within 45 days or such extended period permitted by the President. The QCAT Act provides no mechanism by which a party may seek to enforce a request for written reasons for a decision if the reasons are not provided. Certainly there is nothing in the QCAT Act that empowers the Appeal Tribunal to make an order as sought by the appellants. By s 9(4) of the QCAT Act, the tribunal may do all things necessary or convenient for exercising its jurisdiction. These limited powers may be seen as reflecting the implied powers of a court of inferior jurisdiction. In my view, these powers do not extend to granting relief of the type sought by the appellants. [10] The second order sought by the appellants was a stay of the orders made by the Appeal Tribunal on 4 October 2022 and the appeal proceedings generally. Given that I have determined there is no power in the Appeal Tribunal to grant the first order sought, there is no basis for the second order to be made. [11] The appellants do not identify the relevance of reasons for the refusal to grant the reopening application decision in the present appeal proceeding. It seems to me that the appellants have become unhelpfully focussed on such reasons, or the absence thereof, in circumstances where that focus is ultimately an arid exercise. [12] The application for miscellaneous matters is refused. The proceeding should be listed for a final hearing. -- 4 of 4 --