CK v CRD & Ors [2021] QCATA 78

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: CK v CRD & Ors [2021] QCATA 78 PARTIES: CK (applicant/appellant) v CRD THE PUBLIC TRUSTEE OF QUEENSLAND THE PUBLIC GUARDIAN TH (respondents) APPLICATION NO: APL307-20 ORIGINATING APPLICATION NOS: G42660 GAA7419-20; GAA7420-20; GAA7756-20; GAA7757-20 MATTER TYPE: Appeals DELIVERED ON: 22 April 2021 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Howard ORDERS: The application for leave to appeal or appeal is dismissed pursuant to section 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). CATCHWORDS: HUMAN RIGHTS – JURISDICTION AND PROCEDURE – QUEENSLAND – where applicant seeking to appeal decision which appointed statutory guardian and statutory administrator – where applicant fails to attend directions hearing – where applicant fails to comply with appeal tribunal directions – where application for leave to appeal and appeal filed late – where no application for an extension of time to commence proceeding - whether application should be dismissed Acts Interpretation Act 1954 (Qld), s 39A(1)(b) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 45, s 48(1), s 48(2)(a), s 48(3), s 48(4), s 143(3), s 143(5)(a) Aon Risk Services Pty Ltd v Australian National University (2009) 239 CLR 175 Fancourt v Mercantile Credits Limited [1983] HCA 28 -- 1 of 5 -- 2 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 22 April 2021, I made a decision dismissing an application for leave to appeal or appeal pursuant to section 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act). CK has applied for reasons for my decision. My reasons for decision are as follows. Background [2] CK is a daughter of CRD. She made applications in the guardianship jurisdiction seeking appointment of herself as both administrator and guardian for CRD. TH, a social worker and also an applicant, sought appointment of the Public Guardian and the Public Trustee for CRD. [3] A decision made by the Tribunal dated 29 July 2020 appointed the Public Guardian as guardian for CRD for accommodation, health and provisions of services; and the appointment was to be reviewed in six months. The decision also appointed The Public Trustee of Queensland as administrator for CRD for all financial matters; and required the provision of a financial management plan, accounts and for notices to be provided to the Tribunal in relation to any land in which CRD has an interest. The appointment of the Public Trustee is to remain current until further order of the Tribunal. [4] On 2 October 2020, CK filed an application for leave to appeal or appeal the Tribunal’s decision of 29 July 2020. An application for leave to appeal or an appeal of a decision by the Tribunal must be made within 28 days after the ‘relevant day’;1 here, the day a person is given notice of the decision. [5] The registry sent the decision of the Tribunal to the parties by post on 29 July 2020. However, CK indicates in her application for leave to appeal or appeal that she did not receive the decision until 4 September 2020; some 37 days later. [6] A document sent by post is deemed to be served at the time at which the document would be delivered in the ordinary course of post, unless the contrary is proved.2 The ordinary course of post from the postcode of the tribunal to CK’s postcode, by regular letter post through Australia Post, is 3-4 business days at the present time. Accordingly, in the ordinary course, the decision was delivered to CK by no later than 4 August 2020. The fact that CK may not have received the decision personally (or read it until later) is irrelevant;3 the date of delivery is deemed to be the date of service. [7] In the circumstances, it appears that the appeal proceeding was most likely filed out of time, and an application for extension of time would be necessary before the application for leave to appeal or appeal could proceed. I listed the appeal proceeding for a Directions Hearing on 25 November 2020. 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 143(3), s 143(5)(a). 2 Acts Interpretation Act 1954 (Qld), s 39A (1)(b). 3 Fancourt v Mercantile Credits Limited [1983] HCA 28, [21]. -- 2 of 5 -- 3 [8] As it transpired, another Senior Member conducted the Directions Hearing. The outcome from the Directions Hearing was that the proceeding was listed for a further Directions Hearing on a date to be fixed, after a forthcoming review of the appointment of the Public Guardian was heard. The review was heard on 2 March 2021 and a decision made to continue the appointment of the Public Guardian as guardian for CRD. [9] On 31 March 2021, I conducted the further Directions Hearing by telephone. TH, and representatives for the Public Guardian and the Public Trustee were in attendance, by phone. CK did not provide an attendance advice in advance of the directions hearing as requested by the Tribunal in the notice sent to her. Nevertheless, I had the hearing support officer attempt to contact her from the hearing room at the commencement of the directions hearing on the telephone number set out on her application. She could not be reached by telephone. There was no appearance by CRD. [10] I made the following directions: 1. [CK] must file in the Tribunal one (1) copy and give to The Public Trustee of Queensland, [CRD], The Public Guardian and [TH] one (1) copy of: (a) a written document explaining her excuse for her non-attendance at the Directions Hearing of today’s date; and (b) an application for an extension of time to file the application for leave to appeal or appeal and any submissions in support, by: 4:00pm on 16 April 2021. 2. If [CK] fails to comply with direction 1(i) or (ii) above, the application for leave to appeal or appeal may be dismissed without further notice to the parties. 3. If [CK] complies with direction 1 above and the application has not been dismissed by the Appeal Tribunal: (a) The Public Trustee of Queensland, [CRD], The Public Guardian and [TH] must file in the Tribunal one (1) copy and give to [CK] one (1) copy of any submissions in response to the application for an extension of time, by: 4:00pm on 30 April 2021. (b) The application for an extension of time to file the application for leave to appeal or appeal will be heard and determined on the papers, without an oral hearing, not before: 4:00pm on 30 April 2021. [11] The only documentation filed by CK in response to these directions was an email dated 16 April 2021. The email from CK is sent from the email address to which the registry had issued a Notice of the directions hearing on 22 March 2021. In her email, CK states that she was unaware of the directions hearing on 31 March 2021. She says that she first became aware of the Directions Hearing on 1 April 2021 from a third party (described as a ‘Care Manager’) who was meeting with CRD. [12] CK states that she had a missed call on the day of the hearing but was unable to return the call. CK states that she has previously attended a hearing with one day notice, and asks for a new hearing to be listed. CK states that the QCAT ‘system’ is complex. -- 3 of 5 -- 4 The relevant provisions of the QCAT Act [13] Section 48 of the QCAT Act provides, among other things, that the tribunal may order the proceeding be dismissed or struck out if it considers the applicant for a proceeding, is acting in a way that unnecessarily disadvantages another party to the proceeding.4 [14] Unnecessary disadvantage may be caused, for example, by: (i) not complying with a tribunal order or direction without reasonable excuse; (ii) not complying with the QCAT Act, an enabling act or the rules; (iii) causing an adjournment; (iv) attempting to deceive another party or the Tribunal; (v) vexatiously conducting the proceeding; or (vi) failing to attend conciliation, mediation or the hearing of the proceeding without reasonable excuse.5 [15] In acting under s 48, the Tribunal must consider the extent to which the party causing the disadvantage is familiar with the tribunal’s practices and procedures; the capacity of the party causing the disadvantage to understand, and act on, the tribunal’s orders and directions; and whether the party causing the disadvantage is acting deliberately.6 Should the application for leave to appeal or appeal be dismissed? [16] CK was given notice of the directions hearing scheduled for 31 March 2021 by email sent on 22 March 2021 to the email address she provided in her application for leave to appeal or appeal, and subsequently used to correspond to the registry on 16 April 2021. [17] On 31 March 2021, I directed CK to explain the reasons for her failure to attend the directions hearing. She says merely that she was unaware it was taking place, although she notes that she missed a call she was unable to return on 31 March 2021. She states that she ‘would like an extension of time so another hearing can take place’ and that ‘The qcat system is complex not knowing if your (sic) waiting for an email or written letter in the mail’. [18] As explained earlier, CK filed her application for leave to appeal or appeal, apparently significantly outside of the prescribed time for doing so. On 31 March 2021, I also directed CK to file and serve an application for an extension of time to file her application for leave to appeal or appeal and supporting submissions by 16 April 2021. She did not do so. She gives no explanation for her failure to do so, nor has she sought an extension of time to do so. [19] In the directions dated 31 March 2021, I further directed that if CK failed to do as directed, the application for leave to appeal or appeal may be dismissed without further notice to the parties. [20] As previously outlined, the QCAT Act provides that an application may be dismissed if an applicant acts in a way that unnecessarily disadvantages another party. Another 4 QCAT Act, s 48 sub-ss (1), (2)(a). 5 Ibid, s 48(2). 6 Ibid, s 48(3). -- 4 of 5 -- 5 party may be disadvantaged by actions including a failure to comply with tribunal directions without reasonable excuse; failure to attend tribunal events without reasonable excuse and failure to comply with the QCAT Act. Here, CK initially filed an application for leave to appeal or appeal, it appears, significantly out of time. She then failed to comply with directions to attend the directions hearing on 31 March 2021. She also failed to comply with the Appeal Tribunal’s directions of 31 March 2021 requiring that she file an application for an extension of time to file her application for leave and appeal, and submissions in support. Further, CKs email of 16 April does not explain her non-attendance at the directions hearing. [21] CK acts for herself and likely may not be especially familiar with tribunal practices and procedures. However, she has been involved in guardianship proceedings, including attending hearings on two occasions,7 so they are not entirely unknown to her either, albeit appeal proceedings are different to GAA proceedings. There is no evidence that tends to suggest that she is unable to understand and act on directions and orders. Indeed, she attended a directions hearing on 25 November 2020, so it is apparent that she understood that compliance in attending is required. Further, she sent her email on 16 April 2021, the date on which she was required to have complied with the Appeal Tribunal’s Directions of 31 March 2021, which related to, although did not explain, her non-attendance at the directions hearing. It is reasonable to infer from that action that she understood she was required to comply with the directions by this date. However, I am not satisfied that she had a reasonable excuse for non-attendance. [22] I observe that conveniently, when she does not comply with tribunal requirements, CK appears to infer that she may not have received documents sent by the tribunal either in a timely way (i.e. the tribunal decision sought to be appealed) or at all (the notice of the directions hearing scheduled on 31 March 2021) despite them having been issued to her correct addresses. Proceedings commenced by a party must be progressed in a timely manner by that party, as emphasised by the QCAT Act.8 Tribunal resources are limited and provided for the benefit of the public, not merely the parties to particular proceedings.9 It is incumbent on parties to engage in their proceedings and act promptly in their own interests. I am satisfied that CK has not done so. [23] There is no evidence that would allow me to form a conclusion about whether CK’s actions in apparently frustrating the progress of the proceedings is deliberate or not. [24] That said, I am satisfied that CK has acted in a way that has unnecessarily disadvantaged the other parties to the proceeding in the ways I have explained. I am satisfied that the application for leave to appeal or appeal should be dismissed pursuant to s 48 of the QCAT Act. Orders [25] I make orders accordingly. 7 Hearings in the proceeding below occurred on 29 July 2020 and 2 March 2021. 8 QCAT Act, s 45. 9 Aon Risk Services Pty Ltd v Australian National University (2009) 239 CLR 175. -- 5 of 5 --