Beenleigh Show Society v Reihana [2018] QCAT 97

CITATION: Beenleigh Show Society v Reihana [2018] QCAT 97 PARTIES: Beenleigh Show Society (Applicant) v Toni Colin Reihana (Respondent) APPLICATION NUMBER: MCDT749/13 MATTER TYPE: Residential Tenancy matter HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Gordon DELIVERED ON: 29 January 2018 DELIVERED AT: Brisbane ORDERS MADE: 1. Time to apply to reopen MCDT749/13 is extended to 21 September 2015 when the application to reopen was received by the tribunal. 2. The tribunal being of the opinion that the application to reopen is more effectively and conveniently dealt with as an appeal, the application to reopen filed on 21 September 2015 is accepted as an application for leave to appeal or appeal. 3. Having extended time to bring the application to reopen, the application for leave to appeal or appeal shall be taken by the tribunal to be in time (time to file the appeal is extended to 21 September 2015). 4. Directions will be given by the Appeal Tribunal for the furtherance of the appeal. CATCHWORDS: PROCEDURE – CIVIL PROCEEDING IN STATE AND TERRITORY COURTS – TIME, EXTENSION AND ABRIDGEMENT – where applicant seeks an extension of time to apply to -- 1 of 25 -- 2 reopen proceeding – where application was made 27 months late – where the explanation for the delay was not sufficient but where there are serious doubts about whether the final decision made in the proceeding was within the jurisdiction of the tribunal - whether in the circumstances time should be extended PROCEDURE – CIVIL PROCEEDING IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS – ACTIONS TO REVIEW OR SET ASIDE JUDGMENT OR ORDER – where application to reopen – where there are serious doubts about whether the final decision made in the proceeding was within the jurisdiction of the tribunal – whether, despite a long delay the proceeding should be reopened or alternatively dealt with as an appeal STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – CONSIDERATION OF EXTRINSIC MATTERS – EXPLANATORY MEMORANDA, PARLIAMENTARY DEBATES AND MATERIALS ETC. – where the meaning of s 139(4)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) is unclear – where the explanatory memorandum confirms one possible meaning ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – CIVIL AND ADMINISTRATIVE TRIBUNAL – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – jurisdiction – where application made to reopen – where tribunal is of the view the reopening ground can more effectively or conveniently be dealt with as an appeal – whether tribunal can convert an out of time reopening application to an appeal Acts Interpretation Act 1954 (Qld), s 14B, s 22 Justice and Other Legislation Amendment Act 2013 (Qld), s 154 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 61, s 138, s 139, s 143A Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 9, s 10, s 11, s 12, s 277, s 326, s 349 -- 2 of 25 -- 3 Autodesk Inc v Dyason (No 2) [1993] 176 CLR 300 Buderim Ginger Ltd v Booth [2002] QCA 177 Comcare v A'Hearn (1993) 45 FCR 441 Cruceru v Medical Board of Australia [2016] QCAT 111 Jim McKeering Real Estate v Buchanan [2014] QCATA 109 Queensland Racing Integrity Commission v Kadniack [2017] QCATA 102 Raymond v Doidge [2012] QCAT 163 Reihana v Beenleigh Show Society [2015] QCATA 170 Reihana v Davern & Anor [2014] QSC 127 Reihana v Davern & Anor [2015] QCA 42 Taylor v Taylor (1979) 143 CLR 1 APPEARANCES AND REPRESENTATION: This application was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). REASONS FOR DECISION [1] Over four and a half years ago, Mr Reihana was evicted from his caravans on land owned by Beenleigh Show Society. This happened pursuant to an order made on 16 April 2013 by the tribunal in a hearing to terminate his residential tenancy. Mr Reihana did not attend that hearing. [2] Mr Reihana applied in September 2015 to reopen those proceeding and for an extension of time to make the application to reopen.1 These applications are now finally being decided by the tribunal over two years after they were made. [3] What happened to cause this delay was that the tribunal originally considered Mr Reihana’s application to reopen in good time on 23 October 2015, but dismissed it. That decision was set aside on 31 August 2016 in judicial review proceedings brought by Mr Reihana.2 This means that the tribunal has to consider the reopening application afresh. However, Mr 1 The application for an extension of time for the application to reopen was filed on 28 September 2015. It was needed because the application to reopen was very late, having been filed on 21 September 2015. 2 Order of Boddice J sitting in the Supreme Court under number BS 6260/16. It emerged in those proceedings that due to an administrative error only the first page of Mr Reihana’s four page submissions had been put before the Adjudicator who decided the application to reopen and to extend time to reopen. -- 3 of 25 -- 4 Reihana asked the tribunal not to deal with his reopening application while other proceedings were finalised.3 [4] Mr Reihana’s application suffers from the considerable difficulty that the time limit to apply for reopening is 28 days after the party is given notice of the decision.4 Mr Reihana was given notice of the decision in about 18 May 2013. His application made in September 2015 was therefore 27 months late. [5] A decision whether to extend time turns on many factors, with the aim of achieving justice between the parties. There would need to be a satisfactory explanation for the delay, a good reason for the tribunal to hear the application which would then be allowed (which involves a consideration of its merits), and consideration of the balance of fairness and prejudice to the parties. [6] In this particular case consideration of the application is complicated by the need to consider whether the application to reopen is better dealt with as an appeal. Evidence and submissions considered [7] When deciding whether to extend time to apply to reopen, and when deciding whether it is right to order that the proceeding be reopened, it is necessary to reach a view about the merits of Mr Reihana’s challenge to the decision which he seeks to reopen. This is because except in very exceptional circumstances it would be pointless to reopen proceeding in a case where it was obvious that the decision on the fresh hearing would be the same as before.5 [8] To understand the merits of Mr Reihana’s challenge to the decision which he seeks to reopen, I have found it necessary to delve into a number of tribunal files. I have taken this approach for two reasons. Firstly, neither Mr Reihana, nor the Society, have provided me with clear facts as to the situation pertaining when the decision was made on 16 April 2013. Secondly, Mr Reihana says that he gave certain documents to the tribunal which have been lost. [9] I am entitled to take into account material on other tribunal files because by section 28(3)(c) of the Queensland Civil and Administrative Tribunal Act 3 These requests were made in emails of 13 October 2016 and 17 July 2017. Mr Reihana’s reason for asking for a delay was that he wished to challenge in the Supreme Court the tribunal’s decision to deal with the reconsideration of this reopening application on the papers (rather than in a hearing). This was considered by the Court of Appeal and then Mr Reihana sought special leave to appeal to the High Court. On 11 October 2017 the High Court refused his application. It was then that the tribunal continued its consideration of the present application. Further directions were made on 2 November 2017 seeking further submissions from the parties. These submissions were received on 27 November 2017. 4 Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 92. 5 Jim McKeering Real Estate v Buchanan [2014] QCATA 109 and Reihana v Davern & Anor [2015] QCA 42. -- 4 of 25 -- 5 2009 (Qld) (‘QCAT Act’), the tribunal may inform itself in any way it considers appropriate. Allied to this, by section 28(3)(b) the tribunal is not bound by the rules of evidence, or any practices or procedures applying to courts of record, other than to the extent the tribunal adopts the rules, practices or procedures. [10] The material I have considered is:- a) Mr Reihana’s submissions in support of the applications. This is the email dated 21 October 2015 with one attachment stamped received on that day, which is a scan of a four-page submission from Mr Reihana in support of the reopening of MCDT749/13.6 I have also considered his further submissions by email of 23 September 2016, sent pursuant to directions made on 16 September 2016. b) Mr Reihana’s email sent to Justice Carmody dated 23 October 2017. c) Mr Reihana’s submissions received on 27 November 2017 in response to the tribunal’s order of 2 November 2017. d) The Society’s submissions received on 15 October 2015 in response to the applications to reopen and to extend time to apply to reopen. e) The Society’s submissions received on 12 October 2016 sent pursuant to directions made on 16 September 2016. f) The Society’s submissions received on 27 November 2017 in response to the tribunal’s order of 2 November 2017. g) Documents in file MCDT2379/12 which was an application brought on 26 November 2012 by Mr Reihana against Mrs Mundt (the secretary of the Society) seeking compensation for relocation and return of rent which had been overcharged. Mr Reihana withdrew this claim on 1 February 2013. h) Documents in file OCL121-12 which was an application brought on 26 November 2012 by Mr Reihana against Mrs Mundt under the Manufactured Homes (Residential Parks) Act 2003 (Qld) seeking relocation or compensation and an application for an interim order to stop any clearing or construction work near site 42 where he had his caravans. The application was dismissed by the tribunal on 6 December 2012. i) Documents in Beenleigh file 27/13 which was an application brought on 4 January 2013 by Mr Reihana against the Society, Logan City Council and the State of Queensland t/as Department 6 This was the material which the Adjudicator who originally decided the reopening application did not see in full – only the first page was provided to the Adjudicator. -- 5 of 25 -- 6 of Transport and Main Roads. In this claim he sought orders for relocation, and various alleged breaches. He also applied for an interim injunction to restrain his removal and any construction work in the meantime. These applications were heard on 25 February 2013 when the tribunal adjourned them to be relisted for a compensation hearing following conciliation through the Residential Tenancies Authority. Mr Reihana sought a judicial review of the decision made on 25 February 2013. This application failed before Alan Wilson J sitting in the Supreme Court,7 and also failed in the Court of Appeal in the Supreme Court.8 j) Documents in file APL433-15 which is Mr Reihana’s appeal lodged on 15 October 2015 against the decision made by the tribunal on 16 September 2015 in 27/13 which directed that submissions be made by the parties about the future of application 27/13. The basis of the appeal was that an oral hearing was required. On 9 November 2015 Mr Reihana applied for an interim order in this appeal. On 23 November 2015 a senior member made directions seeking submissions about the application for an interim order. On 25 February 2016 the application to appeal was adjourned to a date to be fixed following the final determination of Mr Reihana’s application for judicial review of the decision made on 25 February 2013 by the Supreme Court. k) Documents in file APL502-15 which is Mr Reihana’s appeal lodged on 9 December 2015 against the directions made on 23 November 2015 in APL433-15. The appeal sought an oral directions hearing. This appeal was dismissed on 16 December 2015 for want of jurisdiction. l) Documents in file MCDT268/13 which was an application brought on 4 February 2013 by Logan City Council to terminate Mr Reihana’s tenancy, relying on a notice to leave dated 14 January 2013 which required handover of site 42 on 21 January 2013. This application was heard on 1 March 2013 when it was adjourned to be relisted if the applicant requested prior to 21 March 2013 - otherwise it was “dismissed”. There is nothing on the file suggesting that any such request was made. I have listened to the audio of that hearing of 1 March 2013. m) Documents in file MCDT749/13 which is the file I am now considering and which culminated in the order made at the hearing on 16 April 2013. I have listened to the audio of that hearing. n) Documents in file APL450-15 which was an appeal lodged on 30 October 2015 by Mr Reihana against the decision made in 7 Reihana v Davern & Anor [2014] QSC 127. 8 Reihana v Davern & Anor [2015] QCA 42. -- 6 of 25 -- 7 MCDT749/13.9 The appeal was brought on the grounds that Mr Reihana had not attended the hearing on 18 April 2013 and if he had attended he could have produced “much mitigating evidence”. He asked for the submissions he presented for the reopening application to be heard on appeal instead now that the reopening application had failed. I can see from the file that the application to appeal was regarded as out of time, and on 5 November 2015 the parties were directed to provide submissions in support of an application to extend the time to file the application. The application to extend time was then considered on the papers by a senior member of the tribunal but was dismissed on 8 December 2015. Accordingly the appeal was dismissed. There is nothing on the file to indicate that the senior member considered the merits of the appeal itself. It would appear on the balance of probabilities that the decision was made not to extend the time for appeal because Mr Reihana’s reasons for the being out of time appeared to be insufficient. o) Documents in file APL477-15 which was an appeal lodged on 16 November 2015 by Mr Reihana against the directions given on 5 November 2015 in APL450-15. The basis of that appeal was that the application to appeal in APL450-17 was not out of time; therefore the directions seeking submissions on that issue were wrong in law. This appeal was dismissed by Justice Carmody on 24 November 2015 for want of jurisdiction. Justice Carmody gave reasons for this decision on 23 December 2015.10 [11] There were eight exhibits referred to in Mr Reihana’s four-page submission attached to his email dated 21 October 2015. He says in that email that he had given these exhibits to the Beenleigh registry and that the Beenleigh registry were to send them to Brisbane. [12] Unfortunately, these supporting documents did not arrive in Brisbane. The tribunal conducted a thorough search for these documents both in Beenleigh and in Brisbane but was unable to find them and there was no record of them being received by Beenleigh registry. Mr Reihana was informed of this by letter dated 14 August 2017. The tribunal has asked Mr Reihana to send all documents on which he relies, including these exhibits,11 but Mr Reihana said he did not keep copies of the exhibits. [13] I need to consider the importance of these missing exhibits. It is possible to list them because they are referred to in the submissions received on 21 October 2015. They are:- 9 This application to appeal was treated by the tribunal as an appeal against the decision made on 16 April 2013 to terminate his tenancy. However, in appeal APL477-15, Justice Carmody read application APL450-15 differently, as being an appeal against the refusal to reopen MCDT749/13 – see Reihana v Beenleigh Show Society [2015] QCATA 170, [2]. 10 Reihana v Beenleigh Show Society [2015] QCATA 170. 11 These requests have been made on 24 April 2017, 6 June 2017 and 14 August 2017. -- 7 of 25 -- 8 A – transcript extract of the proceeding on 25 February 2013 B – another transcript extract of the proceeding on 25 February 2013 C – another transcript extract of the proceeding on 25 February 2013 D – documents about Mr Reihana’s decision to seek a judicial review on his return from New Zealand E – documents showing that the notice to leave was affixed to a caravan which was later taken off the site F – photograph relied on by the Society at the proceeding of 18 April 2013 G – the Society’s submissions dated 4 February 2013 in Mr Reihana’s application for an interim injunction H – a notice to relocate dated 10 September 2012 served by the Society on Mr Reihana [14] The transcript of the proceeding on 25 February 2013 is available in full, so documents A, B and C are before the tribunal. Document F is on file MCDT749/13, document G is on file Beenleigh 27/13 and document H is on file OCL121/12. As for document E, having heard the audio for the hearing of 16 April 2013, it is not controversial that a copy of the notice to leave was attached to one of the caravans. As for document D, Mr Reihana has explained in his submissions why he sought a judicial review on his return from New Zealand. [15] In the circumstances I am not concerned with the difficulty which has arisen over these exhibits. Is there a reopening ground? [16] This needs to be considered because without a reopening ground any application for reopening is bound to fail. [17] “Reopening ground” is defined in Schedule 3 of the QCAT Act as follows:- 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 decided. [18] Mr Reihana relies on paragraph (a). He does not rely on paragraph (b). In his email to Justice Carmody of 23 October 2017 he does refer to new evidence that he is putting together, but it can be seen from that email that this is not with respect to any defence to MCDT749/13, but instead is evidence showing that the Adjudicator made the wrong decision on 25 February 2013 when dealing with Beenleigh 27/13. [19] Mr Reihana did not appear at the hearing on 16 April 2013 when the termination order was made so the first limb of paragraph (a) is satisfied. -- 8 of 25 -- 9 [20] The second limb of paragraph (a) (reasonable excuse for not attending) is difficult to resolve. In his submissions received on 21 October 2015 Mr Reihana says that he had been in New Zealand from 7 March to 18 May 2013, and in his submissions received on 27 November 2017 he says that he was totally unaware (of the proceeding) because he was in the New Zealand wilderness “with no phone, internet, or marine radio contact”. [21] I accept these submissions as factually correct because this information accords with contemporaneous evidence. That evidence also shows the reason why he was in New Zealand. [22] Firstly there is what Mr Reihana said at the hearing of 25 February 2013:-12 Sir, my position is that I’m returning to New Zealand next week. My father is going into hospital. He’s been ill for some time and I’ve booked a flight on the 7th of March. [23] From other documents, I can see that Mr Reihana flew to New Zealand on 6 December 2012, and he informed the tribunal on 11 January 2013 that this was because his father was very ill.13 [24] Then there is an email to the tribunal from a member of Mr Reihana’s family dated 7 April 2013 as follows:- I am writing to inform you that Toni Reihana is currently in New Zealand with his father as he has health problems and needs Toni there. Unfortunately I cannot get hold of him as they don’t have signal where they are. I picked up from his residence an application to appear in court on the 16 April 2013. Toni does not know about this hearing and will not be back in time for it. I have been waiting for him to call to let him know about the court hearing but he hasn’t as yet. So on his behalf I am asking for an adjournment for this hearing to be put off till after May 25th till he returns. Thank you. [25] I note that the same family member was contacted about the warrant of possession after the termination order was made. [26] It seems likely in the circumstances that Mr Reihana became aware what had happened soon after his return to Australia on 18 May 2013. It appears that he received the tribunal’s order terminating his tenancy and issuing the warrant of possession on 20 May 2013.14 [27] In the light of everything going on at the time, Mr Reihana’s decision to absent himself from the country and go out of contact at such a crucial time, despite having good family reasons to do so, can only be described as a “high risk” policy. 12 Transcript 1-22, line 11. 13 These documents are on files OCL121/12 and MCDT2379/12. 14 This appears from his application to appeal the order made on 18 April 2013 in APL450- 15. -- 9 of 25 -- 10 [28] He was aware from what was said at the hearing on 25 February 2013 that the Society was going to apply for termination of his tenancy. This was said by their solicitor:-15 I was about to say, when is he coming back? Because we’ve only got, obviously, 14 days from the end – from the 4th – to file our application in relation to the notice to leave. [29] Although he had moved his caravans to other land owned by the Society, on what I have seen he was aware that his rent was longer being accepted and there had been no formalities to vary his tenancy agreement. In his submissions he is certainly not relying on any such variation or a new tenancy on the land where he had placed his caravans. If properly advised therefore he would have realised that his position was precarious. [30] On the other hand, although Mr Reihana does not expressly state this, I can see that he may have thought at that time that litigation may be at an end. He may well have thought that he had complied with the relevant notice to leave because he had left site 42 and therefore no termination order could be made in his absence. Mr Reihana was aware that the other litigation was either completed or in abeyance.16 [31] Where Mr Reihana says that eviction from his caravans was unexpected, I accept this. [32] In the circumstances on balance I am willing to accept that Mr Reihana had a reasonable excuse for not attending the hearing on 16 April 2013. He therefore has a reopening ground. Is the tribunal unable to extend time because of s 61(3) QCAT Act? [33] The provision of the QCAT Act which permits the tribunal to extend the time for a reopening application is section 61. However, section 61(3) prohibits the tribunal from extending time in certain circumstances. The subsection is in these terms:- (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. 15 Transcript 1-23, line 12. 16 Beenleigh claim 27/13 had been adjourned on 25 February 2013 to be relisted for a compensation hearing after the RTA dispute resolution process; Logan City Council was asking the tribunal for an adjournment of MCDT268/13 to a date to be fixed: as it turned out, the order made was that it be dismissed automatically if no written request to reinstate was received by the tribunal by 21 March 2013 – this was unlikely to happen however, since Mr Reihana had vacated site 42; MCDT2379/12 which was a claim he brought against the Society’s manager for compensation had been withdrawn on 1 February 2013 and his application OCL121-12 under the Manufactured Homes (Residential Parks) Act 2003 (Qld) had been dismissed by the tribunal on 6 December 2012. -- 10 of 25 -- 11 [34] Under the terms of this subsection it is necessary to consider whether, if an extension of time were to be granted, the Society or a potential party to a proceeding would suffer prejudice or detriment which could not be remedied by a costs or damages order. [35] In its submissions, the Society has not suggested that section 61(3) is engaged, but I still need to consider it. [36] Section 61(3) requires an assessment of the effect of an order extending time. In a case such as this the effect of such an order is very limited. The only direct result of an extension of time is that it permits the tribunal then to consider the substantive application to reopen. It is not at all like an extension of time to enable a landlord to recover residential tenancy rent arrears beyond the six months permitted, which has been held to prejudice the tenant.17 Instead, since the tribunal has decided not to conduct an oral hearing of the application to reopen there will be no prejudice suffered by the Society in extending time. It has already made its submissions and no further work is required on its part should I extend time. [37] It follows that section 61(3) is not engaged in this matter. I am not precluded from extending time by the terms of that section. Reasons for the delay in applying to reopen [38] In his submissions received on 27 November 2017 Mr Reihana says that he returned to Australia in late May 2013, and therefore was too late to appeal the decision made in MCDT749/13. Then he says that the Supreme Court review proceeding which he brought “took priority”. His reason for bringing those proceedings, instead of applying immediately to reopen the tribunal proceeding and/or to appeal out of time, is stated to be:- Because I needed to try to establish the abovementioned cart before the horse debacle (but actually didn’t give evidence to prove it), to show that beenleigh’s show’s termination application should never have been permitted to be made or advance to the end it did, when my s.415 “very urgent” appln had never been dealt with/exhausted. [39] The “abovementioned cart before the horse debacle” seems to be a reference to the Adjudicator’s decision made on 25 February 2013 and (according to Mr Reihana) the Adjudicator’s failure to identify that his application 27/13 sought to set aside the 3 January 2013 notice to leave as retaliatory.18 [40] Mr Reihana also gives this explanation in his submissions received on 21 October 2015, describing it as a quest to try to obtain judicial review of the Adjudicator’s failure to deal with the application to set aside the notice to leave. 17 Raymond v Doidge [2012] QCAT 163. 18 That this is the correct reference can be seen from page 2 of the submissions received on 27 November 2017 and from the email sent to Carmody J on 23 October 2017. -- 11 of 25 -- 12 [41] So what Mr Reihana is saying here is that he decided to go down the judicial review route, rather than the more obvious reopening and/or appeal route. What is missing from this however, is why Mr Reihana did not apply to the tribunal to reopen anyway. He says in his submissions received on 21 October 2015 that an extension of time to reopen the application was going to have to be made in any event,19 which is probably true although applying to appeal out of time was another option. [42] A further difficulty here is that the first instance decision to refuse his judicial review application was given on 12 June 2014. This was a decision by Alan Wilson J, who had previously been President of the tribunal.20 In the reasons for his judgment, Alan Wilson J referred to the tribunal’s internal appeal process under which the tribunal had power “to make appropriate remedial orders”. [43] There is no explanation why, having failed to obtain judicial review at first instance, Mr Reihana did not then immediately apply to reopen MCDT749/13. He could also have tried to appeal that decision out of time: the tribunal is able to convert an appeal to an application to reopen, where it appears that there is a reopening ground and where the appeal could be more conveniently be dealt with as an application to reopen.21 [44] The Court of Appeal delivered its decision on appeal from Alan Wilson J on 27 March 2015. Again there is no explanation why Mr Reihana did not then immediately apply to reopen MCDT749/13 or try to appeal out of time. The Court of Appeal pointed out in its decision that Mr Reihana could have attempted to upset the tribunal’s decision of 25 February 2013 by using its internal appeal procedures.22 [45] In his submissions received on 21 October 2015, Mr Reihana does refer to difficult personal circumstances on his return to Australia on 18 May 2013, and finding himself with nowhere to live. Whilst this could be an explanation for some delay, it does not explain the delay to September 2015. [46] In an email to the tribunal dated 23 September 2015 Mr Reihana says that he had not previously been aware of a time limit to reopen. This also appears to be the case from the fact that Mr Reihana applied to reopen on a form received by the tribunal on 21 September 2015, and then applied to extend time for reopening on a second form received by the tribunal on 28 September 2015. I do think it is obvious however, that applications to reopen or to appeal must have time limits. If Mr Reihana had thought about this, he would have realised this was the case. [47] I do not regard Mr Reihana’s explanation for the delay satisfactory. It was however held by the Federal Court in Comcare v A'Hearn (1993) 45 FCR 19 Paragraph 10 of the submissions. 20 Reported at Reihana v Davern & Anor [2014] QSC 127. 21 QCAT Act, s 143A. 22 Reihana v Davern & Anor [2015] QCA 42, [12]. -- 12 of 25 -- 13 441, [15] that an insufficient explanation for delay is not fatal to an application to extend time.23 Questions of prejudice [48] When considering the application both to extend time and also the application to reopen, it is right to consider what prejudice the applicant would suffer if the applications fail, and also the prejudice the Society would suffer should it succeed. [49] When assessing the prejudice arising from an extension of time to apply for reopening, this can be tested by comparing the extent of prejudice to the Society had Mr Reihana’s application to reopen been made in say, mid- June 2013 compared with it having been made in September 2015. There is no suggestion that the prejudice to the Society is any larger because of the passing of time. It is merely delayed. [50] When considering prejudice arising from an order to reopen, it should be remembered that an order reopening the proceeding has no effect other than requiring the tribunal to hear and decide the issues by way of a fresh hearing on the merits.24 When rehearing the application, the tribunal may confirm or amend its previous decision or set aside that decision and substitute a new decision.25 As discussed below, it is probably much more appropriate however, to treat this application to reopen as an application to appeal. The appeal would probably concentrate on whether the tribunal had jurisdiction to make the termination order. If the Appeal Tribunal decides that the tribunal did not have jurisdiction to do so, it would set it aside.26 [51] Either way, the Society is faced with the possibility that the termination order will be set aside. No submissions have been made about prejudice, other than delay – but there is nothing to suggest that the Society’s prejudice is any larger because of the passing of time. It is not said on the Society’s behalf that during the time which has passed since the termination order was made, it assumed that the litigation arising from what happened in 2013 had come to an end. No doubt this is because the order made by Boddice J remitting the reopening application to the tribunal was made well before the finalisation of the Court of Appeal proceeding, and so the litigation was inevitably going to continue at least until the tribunal dealt with the remitted reopening application. [52] This is one reason why, whilst the need for there to be finality between the parties is an important factor in most cases for an extension of time, it is less of a factor in this particular case. And the public interest in finality will 23 The Federal Court pointed out that although an explanation for the delay ought to be given because it was a relevant factor, it was not a pre-condition for success in an application for extension of time that the explanation is acceptable. This was applied in Buderim Ginger Ltd v Booth [2002] QCA 177, [22]. 24 QCAT Act, s 140(2). 25 Section 140(4). 26 Section 146. -- 13 of 25 -- 14 not preclude a reopening where there is good reason to think that the tribunal has proceeded on a misapprehension of facts or law.27 Merits in the application to reopen [53] Identifying Mr Reihana’s defences to the termination application is made more difficult because in his submissions received on 27 November 2017 he says that he has “a multitude of grounds I have for challenging MCDT749/13 itself” without explaining what these grounds are. I shall assume that he relies on the grounds set out in his original submissions received by the tribunal on 21 October 2015. [54] These grounds are:- a) The notice to leave relied on dated 3 January 2013 (on which MCDT749/13 relied) was retaliatory; b) The Society converted an application to terminate based on a notice to leave without ground into one that had grounds and that prejudiced Mr Reihana.28 c) It is said that the Society “seized the initiative” at the 18 April 2013 hearing in Mr Reihana’s absence.29 d) Issues around correctness and service of the notice to leave and the right of the Society to obtain an order. [55] I shall consider each of these grounds in turn to assess their merit, purely on a provisional basis. In doing so it is necessary to consider provisions in the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘RTRAA’) which governed Mr Reihana’s tenancy. [56] The notice to leave was retaliatory. For five years Mr Reihana has concentrated on the contention that the notice to leave dated 3 January 2013 was retaliatory and should have been set aside at the hearing on 25 February 2013 which dealt with 27/13. At every stage this argument has failed. The unfortunate result is that the tribunal is only now some five years after the event, considering whether the termination order made on 16 April 2013 should have been made. [57] The precise nature of application 27/13 was closely examined by the Supreme Court of Appeal in Reihana v Davern & Anor [2015] QCA 42, where it was directly in issue (because the question was whether the application was “urgent” within the meaning of that word in the RTRAA). In 27/13 Mr Reihana applied for compensation arising from the proposed eviction, and also for “a finding that the lessor breached s291(2)(3)”. These are the retaliatory provisions in the RTRAA. The Court noted that the application made no mention of the notice to leave dated 3 January 2013. The Court said at [9] that “The application in terms, then, did not present the first respondent (the Adjudicator) with an application for an order that the Notice to Leave be set aside”. This was actually a reference to an 27 Autodesk Inc v Dyason (No 2) [1993] 176 CLR 300, [4] (Mason CJ). 28 Paragraph 15 of the submissions received on 21 October 2015. 29 Page 3 of the submissions received on 27 November 2017. -- 14 of 25 -- 15 earlier notice to leave dated 19 December 2012 which was defective. Paragraphs [21]-[22] make it clear however, that 27/13 was not an application with respect to the notice to leave dated 3 January 2013 either. [58] So although in his submissions in this matter received by the tribunal on 29 November 2017, Mr Reihana says that his application 27/13 sought to set aside the notice to leave dated 3 January 2013 as retaliatory, this is not the case, as found by the Court of Appeal. [59] In the absence of any other application relied on by Mr Reihana, it follows that he has never applied to set aside the notice to leave dated 3 January 2013 as being retaliatory. [60] He cannot now make such an application. This is because the time limit to apply to set aside a notice to leave as retaliatory under section 292(3) of the RTRAA is four weeks after the notice is given. The mandatory terms of this section would suggest that the time cannot be extended. In Jim McKeering Real Estate v Buchanan [2014] QCATA 109 Senior Member Stilgoe decided that once the four weeks has expired and there has been no application to set aside the notice, it is too late to challenge it as being retaliatory. [61] It follows that this challenge on the order of 16 April 2013 is bound to fail. [62] Conversion of the notice into one with grounds. It is said that the Society converted an application to terminate based on a notice to leave without ground into one that had grounds and that prejudiced Mr Reihana. I am sure from my study of the file in MCDT749/13 that this did not happen. The order made on that day was made on the ground of “failure to leave”. The notice to leave gives two months for the tenant to leave. If the tenant does not leave after that time, then this is a failure to leave, which means that a termination order can be made. The notice to leave can be issued “without grounds” as this one was. This is because no grounds are needed to bring a periodic tenancy to an end. It would appear that this submission has confused the grounds for the notice to leave and the grounds for the termination order, which are different things. There is no defence to MCDT749/13 on this ground. [63] Seizing the initiative. It is said that the Society “seized the initiative” at the 18 April 2013 hearing in Mr Reihana’s absence. Although not stated, this may well be a reference to what was said at the hearing on 25 February 2013 – where Mr Reihana explained he was going away. However, as referred to above, the Society had no alternative but to bring the termination proceeding when it did if it wished to rely on the notice to leave dated 3 January 2013. [64] Issues around correctness and service of the notice to leave and the right of the Society to obtain an order. There are a number of points which Mr Reihana makes which discuss and question whether the termination order and warrant for possession were made for the correct premises and whether the Society was entitled to the order made. He says -- 15 of 25 -- 16 that the notice to leave had been put on the caravan used for storage and therefore only applied to that caravan. He points out that the rental premises were not identified in the notice to leave, and that he had vacated site 42 two weeks before departing Australia. He also says that ownership of the land in question had reverted to Logan City Council because the licence had expired on 6 December 2012 (the implication being that the Society was no longer entitled to possession at the date of the hearing). [65] These points are in that part of his submissions to reopen MCDT749/13 which unfortunately failed to find their way before the Adjudicator who decided the application to reopen on 23 October 2015. [66] In considering these points I am going to have to reach some provisional findings of fact and then consider the law in the RTRAA as it applies to them. It is inevitable that my factual findings and the view I reach on the merits will be provisional only. This is because if the proceedings are reopened there must be a fresh hearing on the merits, whereas if the application for reopening is dealt with as an appeal the parties may wish to make submissions as to the facts which were before the Adjudicator and found by him. [67] My provisional findings of fact are as follows. [68] The Society owns Beenleigh Show Grounds. Part of the land was used as a caravan park and Mr Reihana moved there in September 2010.30 In about December 2011 he purchased a caravan owned by an existing tenant on site 42 and moved into the caravan, taking over the tenancy.31 He paid rent to the Society which was accepted. Mr Reihana had two caravans on site 42. He lived in one and used the other for storage. [69] There was no written tenancy agreement. However it is common ground that he had a residential tenancy granted by the Society. [70] On 15 April 2011 Logan City Council compulsorily acquired site 42 and other adjacent land for the construction of the Beenleigh ring road. Pending the commencement of construction of the road, Logan City Council gave the Society a licence enabling the Society to continue to occupy the acquired land for a caravan park and collect rent from tenants. That licence expired in 3 December 2012. [71] In November 2012 Mr Reihana moved one of his caravans to other land owned by the Society which was not affected by the road. His second caravan remained on site 42. Mr Reihana may have ceased to live on site 42 from about 20 December 2012 when water and electricity was disconnected, but he may have returned to live there. He certainly placed his vehicle there in early February 2013.32 30 Transcript 25 February 2013, 1-4. 31 Affidavit of Albert Zecher made on 4 December 2012 in file 27/13. 32 Email of Mr Reihana of 4 February 2013 and letters from Logan City Council dated 1 February 2013, 7 February 2013 and 19 February 2013 in file 27/13. -- 16 of 25 -- 17 [72] On 12 February 2013 site 42 and the adjacent land was dedicated for the purpose of the new road.33 [73] There was a tribunal hearing on 25 February 2013 for Mr Reihana’s application in Beenleigh 27/13. There was a discussion at that hearing about Mr Reihana relocating the caravan which remained on site 42 so that the road works could proceed. He and the solicitor representing the Society seemed to agree at the hearing that he would dismantle the caravan from site 42 and stockpile the panels temporarily; meanwhile he would go through the RTA’s dispute resolution procedure to enable him to pursue his compensation claims if he wished.34 Over the next few days, Mr Reihana did remove the caravan and it appears that he ceased to have a presence on site 42 after that time. [74] On 1 March 2013 there was a tribunal hearing in MCDT268/13. This was an application for termination brought by Logan City Council based on a notice to leave served by the Council. I have listened to the audio of that hearing. Logan City Council asked for an adjournment of the application to confer and consider the issues. An order was made for the application to be dismissed automatically if no written request to reinstate it was received by the tribunal by 21 March 2013. No such request is on the file. [75] On 18 March 2013 the Society applied to the tribunal for termination of Mr Reihana’s tenancy and this was heard on 16 April 2013. Mr Reihana did not appear at that hearing. I have listened to the audio of that hearing. The Adjudicator was informed by the Society that Mr Reihana originally had two caravans on site 42. He moved one of them to other land owned by the Society without its consent, but left the other caravan on site 42. Then he moved the other caravan from site 42 close to the first caravan. So at the time of the hearing, he had two caravans on land owned by the Society, but without its consent. This was a finding of fact by the Adjudicator. [76] The order declared orally by the Adjudicator at the end of the hearing was that he would be making an order to terminate the tenancy “in respect of premises known as 38 James Street, Beenleigh (Beenleigh Show Society’s land on which the respondent’s two caravans are presently located)”, and that a warrant for possession would be made. [77] The order of the tribunal as perfected was:- 1. The Residential tenancy agreement between the parties is terminated as from midnight on the 30 April 2013 on the grounds of Failure to Leave. 2. A Warrant of Possession is issued authorising a police officer to enter the premises at 38 JAMES STREET, BEENLEIGH QLD 4207 (Beenleigh Show Society land on which the Respondent’s two caravans are located). 33 Transcript 25 February 2013, 1-3. 34 Transcript 25 February 2013, 1-23 to 1-26. The RTA’s dispute resolution procedure was required by section 416 of the RTRAA. -- 17 of 25 -- 18 3. The warrant shall take effect on 30 April 2013 and remain in effect for 14 days, to expire at 6.00pm on 13 May 2013. 4. The Warrant is to be executed as soon as reasonably practicable after taking effect. 5. Entry under the warrant shall only be between the hours of 8:00am and 6:00pm. [78] Mr Reihana’s caravans were removed on 8 May 2013 when the warrant for possession was executed.35 [79] When considering whether the termination order was properly made it is relevant to consider whether Mr Reihana’s tenancy agreement was varied from site 42 to the land where he placed his caravan in November 2012 or whether the Society granted him a new tenancy of that new site. [80] It can be seen that the Society’s solicitors offered Mr Reihana a place on the Society’s land to relocate his caravans but pointed out it was only temporary and was conditional upon his accepting that it was at his own risk because the Council might not give its approval.36 There is nothing to show that this offer was accepted. [81] Instead, it does seem likely that there was no formal variation or new tenancy. The Society have said in its submissions in various places that Mr Reihana moved his caravan in November 2012 to an area which the Society did not approve.37 This was also said at the hearing of 16 April 2013 when it was made clear that the second caravan had been moved to join the first on the site, so that the two caravans at that time were on the Society’s land without their consent. [82] It does not appear that any variation or new tenancy arose by implication either. As for rent payments, Mr Reihana’s rent was paid automatically from his bank. These payments continued to be made after he moved his caravan from site 42. The Society returned to him all rent that he had paid in respect of a period after 3 December 2012. The reason it did this was because it was not owner of site 42 from that time.38 At the hearing on 16 April 2013 there was mention of two rent payments of $260 each that had been made since the notice to leave, but it was made clear that these went to pay off earlier arrears. [83] So what was the nature of Mr Reihana’s tenancy at the hearing on 16 April 2013? By section 11 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld), a residential tenancy is the right to occupy residential premises under a residential tenancy agreement. By section 12(1), a residential tenancy agreement is an agreement under which a 35 This appears from the submissions of the Beenleigh Show Society received by the tribunal on 15 October 2015. 36 Letter 29 November 2012 in file 27/13. 37 For example, submissions dated 5 February 2013 in file 27/13. 38 Transcript 25 February 2013, 1-7. -- 18 of 25 -- 19 person gives to someone else a right to occupy residential premises as a residence. [84] Sections 9 and 10 say:- 9 Premises (1) Premises, for a residential tenancy, include a part of premises and land occupied with premises. (2) Premises, for a residential tenancy, also include— (a) a caravan or its site, or both the caravan and site; and (b) a manufactured home in, or intended to be situated in, a moveable dwelling park or its site, or both the manufactured home and site; and (c) a houseboat. 10 Residential premises Residential premises are premises used, or intended to be used, as a place of residence or mainly as a place of residence. [85] In the case of a caravan owned by the tenant, in practice the effect of sections 9 and 10 are that the “residential premises” and therefore the “residential tenancy” is the “site” on which the caravan in placed. In Mr Reihana’s case, that was site 42. Under his tenancy, he had a right to place his caravans on site 42. He had no right to place his caravans anywhere else on the Society’s land. [86] In his submissions to reopen, Mr Reihana makes the point that the notice to leave did not specify the premises to which it applied. There is space on the notice to leave for the “address of the rental premises”. This contained merely “38 James Street, Beenleigh, QLD 4207”, which I believe is the whole of the land owned by the Society. It did not therefore, specify the site from which Mr Reihana was required to vacate. It was however, addressed to him at site 42 in a box entitled “name/s and address of the tenant/s”. [87] By section 326(1) of the RTRAA, a notice to leave is required to identify the premises. The notice to leave may therefore have been defective, but by section 349(1) of the RTRAA a termination order can be made despite such a defect if the tribunal is satisfied that it is appropriate to make the order in all the circumstances of the case. [88] On the assumption that the notice to leave should be taken to refer to site 42, then on the facts of this case as I have found on a preliminary basis, it is necessary to consider the effect of Mr Reihana having moved his caravans from site 42. [89] The relevant part of section 277 of the RTRAA says:- 277 Ending of residential tenancy agreements (1) A residential tenancy agreement ends only in a way mentioned in this section. (2) A residential tenancy agreement ends by written agreement of the lessor and tenant. (3) A residential tenancy agreement ends if— -- 19 of 25 -- 20 (a) the lessor gives a notice to leave the premises to the tenant; and (b) the tenant hands over vacant possession of the premises on or after the handover day. Notes— 1 See section 326 for requirements for the notice. 2 See sections 329 and 330 for requirements about the handover day. [90] So assuming the notice to leave should be read as applying to site 42, under section 277(3) Mr Reihana’s tenancy came to an end when he moved his caravans from site 42. This had happened by the time of the hearing on 16 April 2013. In those circumstances no termination order could have been made or warrant for possession issued.39 [91] Assuming instead that the notice to leave should be read as applying to the land on which Mr Reihana had moved his caravans, the difficulty is that he does not appear to have a residential tenancy of that land. There was no variation of his original tenancy so that site 42 was replaced by the new site, and there was no new residential tenancy on the new site. Again no termination order could have been made or warrant for possession issued. [92] On my provisional findings, this goes further than a difference of opinion in the exercise of the tribunal’s discretion whether or not to make an order for termination. If the residential tenancy had already come to an end, or did not exist, then the tribunal had no jurisdiction to make the termination order. An order which has been made without jurisdiction ought to be set aside. It would appear that what the Society achieved on 16 April 2013 was effectively an eviction of Mr Reihana and his caravans from its land, because of his trespass upon its land. The tribunal has no jurisdiction to make such an order. [93] In resolving these applications I need to have in mind that adverse orders were made against Mr Reihana in his absence, particularly as I have accepted that he was not aware of the proceeding nor of the hearing. As was said by Jenkins LJ in a passage recited by the High Court in Taylor v Taylor (1979) 143 CLR 1: A party to an action is prima facie entitled to have it heard in his presence; he is entitled to dispute his opponent's case and cross- examine his opponent's witnesses, and he is entitled to call his own witnesses and give his own evidence before the court. Prima facie that is his right, and if by some mischance or accident a party is shut out from that right and an order is made in his absence, then common justice demands, so far as it can be given effect to without injustice to other parties, that that litigant who is accidentally absent should be allowed to come to the court and present his case - no doubt on suitable terms as to costs, . . . 39 A warrant for possession cannot be made unless there is a termination order: section 350 RTRAA. -- 20 of 25 -- 21 [94] Since there are serious doubts that the tribunal had jurisdiction to make the termination order, the justice of the case would require a reconsideration of that decision. The question is how that can be achieved. The effect of section 139(4)(b) of the QCAT Act [95] When deciding whether to reopen proceeding the tribunal must consider two matters set out in subsection 4 of section 139. The first is whether there is a reopening ground which I have already considered. The second is set out in subsection (4)(b):- (4) The tribunal may grant the application only if the tribunal considers— (b) the ground could be effectively or conveniently dealt with by reopening the proceeding under this division, whether or not an appeal under part 8 relating to the ground may also be started. [96] Hon JB Thomas, judicial member of the tribunal, said in Cruceru v Medical Board of Australia [2016] QCAT 111, that subsection (4)(b) was a “puzzling provision”. He was content to interpret the requirement as satisfied if any relevant prejudice or detriment suffered by a party from a reopening could be sufficiently covered by a payment of costs and/or by the imposition of suitable conditions in the light of notions of effectiveness and convenience. On that view section 139(4)(b) is satisfied whenever terms and conditions may be imposed that conveniently and effectively cover the respondent against irrevocable prejudice.40 [97] Hon JB Thomas preferred that approach over construing the meaning of “ground” in section 139(4)(b) as the “effect of the ground”, which would require considering whether reopening the proceeding was a convenient and effective remedy. So that for example if the applicant could not have shown a proper defence on the merits, there would be neither convenience nor effectiveness in reopening the matter.41 It is notable that in Cruceru the decision was made not to reopen because Hon JB Thomas did “not think any utility, effectiveness or convenience would be achieved by granting a reopening”. On His Honour’s reasoning, this must have been criteria applied within the general discretion given by the word “may” in section 139(4) rather than the words in section 139(4)(b). [98] There is however, a third way of reading section 139(4)(b) which arises from the fact that it refers to appeal processes. In some cases where a party seeks a reconsideration of the tribunal’s final decision the party will have a choice between applying for a reopening or lodging an appeal. Examples are when fresh evidence is found which could not have been obtained for the hearing, or where the party did not appear at a hearing due to lack of service or an error of process. The time limits for each type of application are similar. [99] On this reading of section 139(4)(b) the tribunal would be required, when considering whether to reopen a proceeding, in a case where an appeal 40 Paragraph [38]. 41 Paragraph [39]. -- 21 of 25 -- 22 could be lodged instead, to consider whether it is more effective or convenient to deal with the application as an appeal instead of as a reopening application. [100] That this is the correct reading of section 139(4)(b) is confirmed by the Explanatory Note when the Act was introduced in Parliament as a Bill:- Clause 139 sets out how the tribunal is to decide an application for re- opening. Subsection (2) requires the tribunal to give each party an opportunity to make written submissions about the application for reopening. Subsection (3) requires the tribunal to consider the written submissions and enables it to decide the application for re-opening on the papers without the need for a hearing. Subsection (4) states that the tribunal may grant the application if it considers that a reopening ground exists and the matter could be more effectively or conveniently dealt with by a reopening rather than an appeal, if an appeal could be made under part 8 of this Act. Subsection (5) provides that a decision of the tribunal about whether or not to grant an application to reopen a proceeding is final and cannot be reviewed in any way, including under the Judicial Review Act 1991. [101] By section 14B Acts Interpretation Act 1954 (Qld), the tribunal is able in specified circumstances to consider extrinsic material as an aid to construction of a statutory provision. In this case it could be either of these: when the statutory provision is ambiguous or obscure or to confirm what appears to be its ordinary meaning. [102] It is also instructive to consider the words of section 143A to the QCAT Act which was added as from 1 January 2014 by section 154 of the Justice and Other Legislation Amendment Act 2013 (Qld). This recognised the parallel between an application to reopen and an appeal, and allowed the tribunal to treat an application to appeal as an application to reopen if it was considered that “the application or appeal could be more effectively or conveniently dealt with if it were taken to be an application” for reopening. This tends to suggest that section 139(4)(b) which uses the same words “effectively or conveniently dealt with” is the same test but the other way round. [103] Using a later amendment as an aid to interpretation is permitted by section 22 of the Acts Interpretation Act 1954 (Qld) which provides that an Act and any Act amending it must be read as one. [104] Section 139(4)(b) therefore requires the tribunal to consider whether a reopening application would be more effectively or conveniently dealt with by appeal, if such an appeal could be lodged. Applying section 139(4)(b) of the QCAT Act [105] The difficulty in allowing Mr Reihana’s challenge of the decision made on 16 April 2013 to be made by way of reopening is that by section 140(1) the issues in the proceeding must be heard and decided again by way of a fresh -- 22 of 25 -- 23 hearing on the merits. This means that MCD749/13 would be reheard on the facts and circumstances pertaining at the time of the fresh hearing. [106] That this is the correct approach appears from Queensland Racing Integrity Commission v Kadniack [2017] QCATA 102 (Justice Carmody) (citing Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73, 106-08, which considered a rehearing in the context of an appeal:- [31] Appeals by way of rehearing must apply the circumstances as they exist at that time and according to the law then in force so that the rights and liabilities of the parties are determined as at the date of the rehearing. [107] This would mean that, since Mr Reihana currently has no residential tenancy, the tribunal would need to dismiss the application for termination on that basis without ever deciding whether the termination order should have been made in the first place. [108] The result therefore would be that the tribunal would not properly be able to consider whether it had jurisdiction to make the order of 16 April 2013 if the proceeding is reopened. For this reason it would be much more appropriate for that question to be decided by an appeal from that order. Converting a reopening application to an appeal [109] In this particular case, in order for this reopening application to be dealt with as an appeal, it is necessary to convert it into an appeal and also to extend the time to bring the appeal so it can be validly accepted as an appeal without any further impediment arising from its lateness. The QCAT Act does not expressly provide a mechanism to achieve this. Can it be done under express or implied powers in the QCAT Act? [110] Since section 139(4)(b) requires the tribunal to consider whether a reopening application would be more effectively or conveniently dealt with by appeal if such an appeal could be lodged, it is likely that the tribunal can act accordingly if it decides that it should be dealt with as an appeal. If there is no power to convert an application to reopen into an appeal, the tribunal would have to dismiss the application to reopen because it should have been an appeal instead. But then there is a danger that the applying party is left without any remedy at all. This is because in most cases the time limit for an appeal would have passed.42 This could easily happen because, as previously mentioned, parties may in the same circumstances have a choice of applying to reopen or to appeal. It is also impermissible to have both an application to reopen and an appeal running concurrently which makes it more difficult to make the correct type of application.43 42 This is likely because by section 139(2) each party must be given an opportunity to make submissions on the application to reopen. 43 This appears from sections 138(5) and (6) and section 141. -- 23 of 25 -- 24 [111] In my view it is unnecessary to find an implied power here, since it appears from the QCAT Act that the tribunal (as opposed to the Appeal Tribunal) has an express power to make directions about an appeal. The power can be found firstly in section 9, which confers “appeal jurisdiction” on the “tribunal” and then section 9(4) which provides that the tribunal may do all things necessary or convenient for exercising its jurisdiction. Appeal jurisdiction is defined in sections 25 and 26 as including an appeal under section 142, which is an appeal to the Appeal Tribunal against a decision of the tribunal. It is clear from the words of section 9 and from sections 165(3) and 166 (constitution of appeal tribunal) and 165(4) (references to appeal tribunal) and the definitions of “appeal tribunal” and “proceeding” in Schedule 3, that the word “tribunal” can include the “appeal tribunal”. [112] These provisions, in particular the definition of appeal tribunal in Schedule 3, also show that each Appeal Tribunal is constituted (on an appeal by appeal basis) to hear and decide a particular appeal. The Appeal Tribunal needs to make directions governing the appeal and such directions are often made in practice before the Appeal Tribunal is constituted. Until the constitution of the Appeal Tribunal it seems to me that such directions are made by the tribunal in anticipation of an Appeal Tribunal being constituted to hear the appeal. After the constitution of the Appeal Tribunal, such directions are made by the Appeal Tribunal. Either way they are made under section 9(4) referred to above, by the various powers given to the tribunal in the Act, and in particular the direction making power under section 62. They are therefore made by the “tribunal”. [113] In so far as it might be suggested that section 143A(1) is an express provision permitting the Appeal Tribunal to convert an appeal into an application to reopen, and that this tends to show that there is no power to do this the other way, there is much authority that such a principle ought to be applied with caution. It should not to be applied if it would bring about a result which the legislature is unlikely to have intended.44 [114] It follows that the tribunal can make a direction that an application to reopen is to be treated as an appeal, and to extend time for the appeal to be brought. [115] I should note here in passing that Mr Reihana has already appealed in APL450-15 against the very decision which he now seeks to reopen and which I think should be dealt with as an appeal. It will therefore be a second appeal. I have recited earlier in these reasons what seems to have happened on that appeal. There is nothing in the QCAT Act which precludes a second appeal and so this does not inhibit my making an order that this application to reopen is dealt with by way of an appeal. Conclusions [116] Although Mr Reihana does not have a satisfactory explanation for the delay, he has a reopening ground, and there would appear to be little or no 44 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, [19]. -- 24 of 25 -- 25 prejudice to the Society by a reconsideration. On my preliminary findings of fact, I have serious concerns whether the tribunal had jurisdiction to make the termination order on 16 April 2013. The justice of the case requires a reconsideration. [117] However I consider that the reconsideration is best done by way of appeal and being satisfied that I may do so, I make directions accordingly. -- 25 of 25 --