Duryea v Queensland Racing Integrity Commission [2019] QCAT 226

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Duryea v Queensland Racing Integrity Commission [2019] QCAT 226 PARTIES: DARLEEN ERICA DURYEA (applicant) v QUEENSLAND RACING INTEGRITY COMMISSION (respondent) APPLICATION NO/S: REO001-19 MATTER TYPE: Occupational regulation matters DELIVERED ON: 15 August 2019 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Aughterson ORDERS: The application to reopen proceeding OCR105-17 is refused. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – Procedure – reopening – whether matter should be reopened – whether a proceeding that has been heard and decided by the Tribunal Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 48, s 72(1)(b), s 137, s 137, s 138, s 140 Australian Rules of Racing, r 178 Crawford v Commissioner of State Revenue [2014] QCAT 418 Creek v Raine and Horne Mossman [2011] QCATA 226 Darragh v Davis [2017] QCAT 181 Mango Boulevard Pty Ltd v Spencer [2010] QCA 207 Ramke Constructions Pty Ltd v Queensland Building Services Authority [2012] QCAT 417 Queensland Building Services Authority v Queensland Civil and Administrative Tribunal [2013] QSC 167 APPEARANCES: 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 5 -- 2 REASONS FOR DECISION On 15 January 2019, the applicant filed an application to reopen an application to review filed in the Tribunal on 8 June 2017 (file OCR105-17) and dismissed on 20 December 2018. The original application was to review a decision made by the respondent on 31 May 2017, disqualifying the applicant as a trainer for a period of 12 months. That decision was the product of an internal review of a finding that the applicant had breached rule 178 of the Australian Rules of Racing, detection of a prohibited substance (cobalt). By a decision made by the Tribunal on 14 June 2017, the internal review decision was stayed until the determination of the application to review, while on 21 January 2019 the internal review decision was stayed until determination of the application for reopening. Prior to dismissal of the application to review, on 5 December 2018 directions were made by the Tribunal requiring the applicant, by 14 December 2018, to either file a notice of withdrawal of her application or advise the Tribunal and the respondent that she wished to proceed with the application to review. Prior to those directions, the most recent directions were issued on 6 February 2018. The latter directions directed that the application be listed for a direction hearing on the next available date after the Tribunal received written notice from the parties that the Racing Crime Squad investigation had been concluded. No such notice was received from the parties. Email enquiries were made of the parties as to the progress of the matter on 31 May 2018 and 9 August 2018, without response. While the directions of 5 December 2018 and the email enquiries of May and August were sent to the applicant’s given personal email address, a copy of the email of 9 August 2018, with attachments, also was sent by email to the applicant’s legal representative on 16 August 2018. Ultimately, the lack of response to the follow up enquiries prompted the directions made on 5 December 2018. Those directions included notice that should the applicant fail to comply with the directions, the application to review may be dismissed. Consequent upon that failure, the application was dismissed by a decision made on 20 December 2018. In submissions of the applicant filed 14 February 2019, it is stated that neither the applicant nor her legal representative received the directions of 5 December 2018. It is also stated in an affidavit of the applicant dated 14 February 2019, which was annexed to the submissions, that she had ‘ceased’ using the given personal email address ‘in or around March 2018’. However, in the application for reopening filed on 15 January 2019 it is stated that the personal email address ‘is not actively monitored’. In any event, there is no record of the Tribunal being notified, prior to the application to reopen, that the given personal email address was no longer used or not actively monitored, though there was advice received by the Tribunal on 9 March 2018 notifying the change of the applicant’s legal representative. Further, relevant to the directions made on 6 February 2018, noted above, no advice was received from the applicant advising that the Racing Crime Squad investigation had been concluded. In the submissions of the respondent filed on 31 January 2019, it is stated that the Racing Crime Squad contacted the applicant on 21 August 2018 to advise that the investigation had been concluded and there was insufficient evidence -- 2 of 5 -- 3 to proceed.1 While the applicant acknowledges receiving a phone call in August, she states that in that conversation there was no reference to the investigation being finalised.2 However, there is no indication of any endeavour on the part of the applicant, either before or after August 2018, to establish whether the investigation had been completed. As is noted above, on 16 August 2018 a copy of the email to the applicant of 9 August 2018, with attachments, enquiring as to progress of the investigation, was sent by email to the applicant’s legal representative. The applicant seeks to redress the dismissal of the application through an application to reopen the proceeding. The question is whether that particular avenue is available to her. The circumstances in which a reopening is available is determined by the provisions of Chapter 2 Part 7 Division 7 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the Act’). Section 136 of the Act provides: This division applies to a proceeding, other than an appeal under Part 8, division 1, that has been heard and decided by the Tribunal (emphasis added). Section 138(1) provides: A party to a proceeding may apply to the tribunal for the proceeding to be reopened if the party considers a reopening ground exists for the party. The term ‘reopening ground’ is defined in Schedule 3 to mean: (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 decided. By s 137, in division 7 of Part 7– hearing, of a proceeding, includes a compulsory conference for a proceeding if the person presiding over the conference decides the proceeding under s 72(1)(b).3 1 Submissions of respondent, [6]. 2 Submissions of the applicant, annexure 2. 3 Sub-section 72(1)(b) of the Act deals with the potential making of final orders, including in relation to costs, where a party to a proceeding does not attend a compulsory conference. -- 3 of 5 -- 4 The question is one of whether, in circumstances where a matter is dismissed pursuant to s 48 of the Act, there is a proceeding ‘that has been heard and determined’ in terms of s 136 of the Act. That question was considered in Ramke Constructions Pty Ltd v Queensland Building Services Authority.4 It was there held that where a matter is dismissed for non- compliance with directions there has not been a hearing within the meaning of s 136 of the Act. It was stated that the reopening grounds are ‘clearly aimed at correcting injustices suffered by a party at a hearing of the proceeding itself’.5 It was added that that conclusion is supported by the terms of s 140 of the Act; ‘effect of decision to reopen’. Section 140(1) requires the Tribunal to ‘decide the issues in the proceeding that must be heard and decided again’, while s 140(2) refers to a ‘fresh hearing on the merits’ (emphasis added).6 The very nature of any summary determination of proceedings for procedural non-compliance is that there will be no determination on the merits.7 The same conclusion as in Ramke Constructions Pty Ltd was drawn in Crawford v Commissioner of State Revenue8 and Darragh v Davis.9 The applicant seeks to draw a distinction between cases where notice of the procedural requirement was received by the relevant party and cases where it was not received.10 However, leaving to one side the question of whether or not the applicant might have better engaged with the Tribunal in order to ensure appropriate receipt of all notices,11 including through making a response to the email of 9 August 2018, that issue does not alter the clear wording of the relevant provisions of the Act. A possible need for legislative amendment and reference to the alternative pathway through s 49 of the Act, noted in Queensland Building Services Authority v Queensland Civil and Administrative 4 [2012] QCAT 417. 5 Ibid [15]. Prior to the amendments to the Act in 2013, the definition of ‘reopening ground’ appeared in s 137 of the Act. While it now appears in Schedule 3 to the Act, it is in the same terms as under the earlier s 137. 6 See also Darragh v Davis [2017] QCAT 181, [17]. 7 Mango Boulevard Pty Ltd v Spencer [2010] QCA 207, [116]. 8 [2014] QCAT 418. 9 [2017] QCAT 181. 10 Applicant’s submissions, [13]. 11 As to the obligation of parties to take care in their dealings with Tribunal matters, see Creek v Raine and Horne Mossman [2011] QCATA 226, [13]; Crawford v Commissioner of State Revenue [2014] QCAT 418, [22]. -- 4 of 5 -- 5 Tribunal,12 are referred to below. The applicant further submitted that the matter had been ‘heard and decided’ on 20 December 2018 in circumstances where the parties had at that stage ‘filed significant amounts of material’ in the matter. However, it is not apparent why the mere filing of materials is indicative of the matter having been heard and decided. There had been neither a hearing nor the taking of appropriate steps to allow the making of a decision on the papers. Certainly, no decision on the merits had been made. In Queensland Building Services Authority v Queensland Civil and Administrative Tribunal,13 Applegarth J adopted the decision and reasoning in Ramke Constructions Pty Ltd, concluding that where a matter is dismissed or struck out pursuant to s 48 of the Act there is no reopening ground as the matter has not been ‘heard and decided’ within the meaning of the Act. While Applegarth J pointed to a ‘potential argument’ as to the existence of an implied power to reopen in circumstances falling outside s 136 of the Act, his Honour declined to find that the Tribunal had that implied power.14 No submissions were made in that regard in the present case. Applegarth J considered it ‘unfortunate’ that the legislation did not allow for a power to reopen in circumstances where a matter is dismissed pursuant to s 48 of the Act, though also noted the capacity of a party to seek leave to extend the time limit to start a new proceeding pursuant to s 49 of the Act.15 As the proceeding was dismissed pursuant to Chapter 2 Part 5 Division 1 of the Act, and without the matter being ‘heard and decided’ by the Tribunal, the matter cannot be reopened pursuant to Part 7 Division 7 of the Act. The application to reopen the proceeding is refused. 12 [2013] QSC 167. 13 Ibid. 14 Ibid p 5. 15 Ibid. -- 5 of 5 --