Busby & Anor v Body Corporate for Balmattum [2016] QCATA 28

CITATION: Busby & Anor v Body Corporate for Balmattum [2016] QCATA 28 PARTIES: BUSBY AND ANOR (Applicant/Appellant) v BODY CORPORATE FOR BALMATTUM (Respondent) APPLICATION NUMBER: APL327-14 MATTER TYPE: Application and Appeals HEARING DATE: 12 February 2016 HEARD AT: Brisbane DECISION OF: Justice Carmody DELIVERED ON: 15 March 2016 DELIVERED AT: Brisbane ORDERS MADE: THE APPEAL TRIBUNAL ORDERS THAT: 1. The application for leave to appeal against the refusal to extend the time in APL550-13 is dismissed. 2. The parties are directed to exchange and file any submissions on costs on or before 4pm 29 March 2016. CATCHWORDS: APPEAL – LEAVE TO APPEAL – where adjudicator made order on a question of law under the Body Corporate and Community Management Act 1997 (Qld) – where application to extend time limit for QCAT appeal refused – whether Appeal Tribunal validly constituted – whether procedural power to extend time limit exercisable only by the Tribunal in its original jurisdiction Body Corporate and Community Management Act 1997 s 290 -- 1 of 8 -- 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 3, 9, 25, 26, 27, 28, 36, 52, 61, 142, 150, 165, 166, sch 3 Assmar v Yassine (Court of Appeal, 4th March 1986, unreported) Body Corporate for No 9 Port Douglas Road v McEvoy [2011] QCATA 292 Bruce Moon v Office of State Revenue (unreported, Queensland Civil and Administrative Appeal Tribunal, APL213-15, 4 December 2015, Carmody J and Member Browne) Chandra v Queensland Building and Construction Commission [2014] QCA 335 Cuda v Barron Processing Co Pty Ltd [1992] QCA 007 Eileen Reed v Department of Public Housing and Works (unreported, Queensland Civil and Administrative Appeal Tribunal, APL484-15, 20 November 2015, President Thomas) KGK Constructions Pty Ltd v East Coast Earth Moving Pty Ltd [1985] 2 Qd R 13 Mobile Building System International Pty Ltd v Hua [2014] QCATA 336 Morton v Hampson [1962] VR 364 Morres Papuan Rubber v Trading Co Ltd (1914) 14 SR (NSW) 141, 144 Myer Melbourne Ltd v Hammond [1984] VR 40 Reihana v Beenleigh Show Society [2015] QCATA 170 Technical Team Projects Pty Ltd v Noble Dunn Pty Ltd (1990) 20 NSWLR 221 Yew Bon Tew v Kenderaan Bas Mara [1983] AC 553, 536 -- 2 of 8 -- 3 APPEARANCES and REPRESENTATION (if any): APPLICANT/APPELLANT Mr P Land of Counsel instructed by Lee & Co Attorneys & Mediators. RESPONDENT Ms T Fantin of Counsel instructed by Preston Law. REASONS FOR DECISION [1] The issue to be decided in this leave application is whether the procedural power to extend the time limit for starting a QCAT appeal (APL550-13) under s 61(1)(a)-(b) of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’) is exercisable only by the Tribunal in its original jurisdiction. [2] The key questions to be answered are whether: (a) an “Appeal Tribunal” was validly constituted for the application to extend the appeal period under either ss 165(1), (3) or 166(2) of the QCAT Act and, if so, (b) that Appeal Tribunal was competent to exercise the power in s 61 of the QCAT Act to grant an extension of time. [3] Clearly, an important matter of practice and procedure is raised and leave to argue it is warranted. The rival arguments [4] The respondent claims the application is really a covert attempt to do the impermissible; that is, to overturn one of the Appeal Tribunal’s own procedural orders; and contends that the reference to the Tribunal in s 61(1)(b) of the QCAT Act is a reference to the Appeal Tribunal “for an appeal” or, alternatively, because of the expanded meaning envisaged by ss 165(3)-(4) of the QCAT Act. [5] The applicant defends the application’s integrity on the grounds that an Appeal Tribunal can only be validly constituted for limited purposes; none of which apply here. They are: (a) hearing an appeal against a decision for which appeal jurisdiction is conferred by ss 27, 142(1) and (3) and s 143 of the QCAT Act; or (b) deciding an application for leave to appeal or related proceeding under s 165(3), including an application for procedural relief such as an extension of time for taking a step1 or to the extent the context permits or requires via s 165(4). 1 cf Chandra v Queensland Building and Construction Commission (2014) QCA 335. -- 3 of 8 -- 4 The context [6] The applicants are aggrieved persons with a right to appeal an adjudicator’s order on a question of law under s 290 of the Body Corporate and Community Management Act 1997 (Qld) (‘BCCM Act’). [7] An appeal to the QCAT Appeal Tribunal against a BCCM Act decision must be started within six weeks of a copy of the disputed order being received. [8] A QCAT proceeding (defined in Schedule 3 to include an appeal before the Appeal Tribunal) starts when the initiating document is accepted by the principal registrar.2 That did not happen in this case until 16 December 2013; more than two (2) years after the 6 November 2011 deadline. [9] The applicants filed an application in APL550-13 to excuse their non- compliance and extend the appeal period to the date of filing. [10] The Tribunal ostensibly constituted by Senior Member Stilgoe OAM as the Appeal Tribunal for the matter refused to extend the time allowed. [11] There is no reason to suppose that the Senior Member was not exercising the appeal jurisdiction of the Appeal Tribunal in refusing the applicant’s extension of time. The characterising circumstances of the decision of Senior Member Stilgoe OAM including:  the fact that she was constituted as the Appeal Tribunal by the President;  that the decision or orders state it was from the Appeal Tribunal;  that she believed she was exercising the appeal jurisdiction of the Appeal Tribunal; and  the presumption of regularity and s 235(1) of the QCAT Act, all point to the Senior Member exercising the appeal jurisdiction of the Appeal Tribunal. [12] The applicants now apply to set aside the Senior Member’s orders for error. [13] They contend that, despite the contrary decision in The Body Corporate for No 9 Port Douglas Road v McEvoy,3 the procedural time limit fixed by the BCCM Act for appealing to QCAT cannot be extended under s 61 of the QCAT Act by an Appeal Tribunal constituted for the appeal because the Tribunal’s jurisdiction to hear and decide an appeal under s 26 of the QCAT Act is, by virtue of s 27 of the QCAT Act, exercisable only “if a person has, under (the QCAT Act or an enabling Act, e.g. the BCCM Act) appealed to 2 s 36 QCAT Act. 3 [2011] QCATA 292 at [11]. -- 4 of 8 -- 5 the tribunal against a decision for which it has appeal jurisdiction” under s 25 of the QCAT Act viz “in the circumstances mentioned in s 142”. [14] The applicants assert that for present purposes the words “appealed to the Tribunal” in s 27 are intended to refer exclusively to the act of filing a regular notice of appeal in the QCAT registry within the six week time limit fixed by the BCCM Act – not any extended period. [15] This would mean by extension that the Tribunal would never be able to exercise the appeal jurisdiction it clearly has under s 26 to hear and decide applications for leave to appeal under s 142(3) of the Act against a decision of the tribunal or another entity under an enabling Act conferring appeal jurisdiction on the tribunal within Schedule 3 because s 9(2) does not recognise deciding leave to appeal applications as a separate category jurisdiction of both the appeal and leave to appeal. [16] Although this interpretation is arguably open or, at least, not demonstrably wrong, it should not be preferred having regard to the overall scheme of the QCAT Act, its stated objects and the tribunal’s functions. Analysis [17] The time limit in s 290 of the BCCM Act is prescribed mainly for the convenience of the QCAT Appeal Tribunal in managing its workload. The fact it can be dispensed with or varied under s 61 of the QCAT Act means that it is directory not mandatory and is therefore not jurisdictional.4 [18] Noncompliance is excusable by the Tribunal for good reason as long as it does not have the consequence of prejudicing another party or encouraging laxity. [19] As the Privy Council noted in Yew Bon Tew v Kenderaan Bas Mara:5 “When a period of limitation has expired, a potential (respondent) should be able to assume that he (she) is no longer at risk of a stale (appeal). He (she) should be able to part with his (her) papers if they exist and discard any proofs or witnesses which have been taken; discharge his solicitor if he (she) has retained; and order his (her) affairs on the basis that his (her) potential liability has gone…” [20] The proper test when considering relief from noncompliance with procedural provisions or subordinate rules for filing appeals according to Cullen CJ in Morres Papuan Rubber v Trading Co Ltd is:6 “.. [the applicant] has to satisfy the court that justice requires that the fault of his shall be overlooked, and he must satisfy the court that there is some reasonable kind of explanation or excuse for his neglect of the rules.” 4 Morton v Hampson [1962] VR 364; Myer Melbourne Ltd v Hammond [1984] VR 40. 5 [1983] AC 553, 536. 6 (1914) 14 SR (NSW) 141, 144. -- 5 of 8 -- 6 [21] In other words, as Kirby P pointed out in Assmar v Yassine:7 “To secure the extension of time sought, the claimant must establish an explanation for the delay and … the conclusion that the prejudice to the claim, if the motion was refused, outweighs that to the opponent by extending time.” [22] Read with s 165(2) the incidental power in s 9(4) of the QCAT Act confirms that when an Appeal Tribunal is duly constituted it has all the powers “necessary and convenient” for exercising the appeal jurisdiction for the particular matter. This undoubtedly includes determining a procedural proceeding relating to an appeal such as an application to extend the appeal period. [23] It would be anomalous not to mention highly inconvenient if the Appeal Tribunal did not have the power to control its own proceedings including deciding who, as a matter of discretion, should get the benefit of s 61 relief and when the balance of the interests of justice (including the prospects of success on appeal) indicate to the contrary. It would be odder still if an ordinary Tribunal could be lenient in overlooking noncompliance but the Appeal Tribunal could not and, worse still, could be burdened with hearing an appeal proceeding it would have rejected in its discretion for lateness. [24] Section 36 of the QCAT Act, which deals with when a QCAT proceeding starts, deems proceedings (including appeals) to start when an “application or referral” (impliedly including notice of appeal) is accepted by the registry. In light of this the word “appealed” in s 27 of the QCAT Act must be read as meaning filed a notice of appeal accepted by QCAT either within the stated period or (if the Appeal Tribunal enlarges the time for compliance) the extended period. The registry invariably deals with initiating documents as it they were compliant although there is a power to reject late filings under s 35(3)(b) of the QCAT Act. [25] Notably, s 61(4) of the QCAT Act specifically refers to a “potential party”, which is apt to refer to a party who has intended to appeal by filing a late notice. This strongly suggests that the word “appealed” in s 27 is not used in any narrow, rigid technical sense intended to strictly characterise the nature of the proceeding but rather refers to an intended act or event. [26] Moreover, s 27 states that the tribunal “may” exercise its appeal jurisdiction if a person has appealed. It does not say that the tribunal may “only” exercise its appeal jurisdiction if a person has appealed against a decision within its appeal jurisdiction. Nor does it impliedly exclude the Appeal Tribunal from adopting appropriate practices and procedures for exercising its appeal jurisdiction. 7 Court of Appeal, 4th March 1986 (unreported) -- 6 of 8 -- 7 [27] Further, the context in which “the tribunal” is used in ss 61(4) and (5) of the QCAT Act at least permits (if not requires) it to be taken as a reference to the “Appeal Tribunal”.8 [28] Applications to extend time to appeal and the appeal itself are distinct proceedings. It is wrong to merge them.9 Section 61(1) of the QCAT Act clearly confers a discrete procedural power exercisable by the tribunal constituted for the principal proceeding, including an appeal. [29] Finally, it is common in most appellant jurisdictions for an application for an extension of time to be made and heard concurrently with the appeal to save time and expense.10 If the appeal is a simple one the court treats the application as the appeal and, if intending to grant the extension, deals with the merits at the same time.11 [30] This long standing practice would have to stop if the applicant’s submissions are sound, because there would be no appeal to determine unless the extension was granted before it was listed for hearing. [31] For all these reasons the word “appealed” in s 27 of the QCAT Act should be construed expansively so as to include proceedings relating to an application for leave to appeal, proceedings relating to an appeal, leave to appeal proceedings and appeal proceedings proper. Otherwise, it would lead to absurdity and unintended impediments to accessing tribunal justice. [32] On this interpretation, it is possible for an appellant to have “appealed” within s 27 of the QCAT Act against a decision for which there is no appeal jurisdiction or in circumstances where an extension of time for filing the appeal is needed to regularise it. Conclusion [33] Senior Member Stilgoe OAM properly constituted the Appeal Tribunal for the purpose of exercising the appeal jurisdiction and incidental discretionary power to retrospectively enlarge the time fixed for starting APL550-13 or, as happened, refuse to do so. [34] Consistently with Mobile Building System International Pty Ltd v Hua,12 Reihana v Beenleigh Show Society,13 Eileen Reed v Department of Public Housing and Works14 and Bruce Moon v Office of State Revenue,15 the 8 cf s 165(4) of the QCAT Act. 9 Technical Team Projects Pty Ltd v Noble Dunn Pty Ltd (1990) 20 NSWLR 221, 229 per Cole J. 10 see KGK Constructions Pty Ltd v East Coast Earth Moving Pty Ltd [1985] 2 Qd R 13 at 15. 11 Cuda v Barron Processing Co Pty Ltd [1992] QCA 007. 12 [2014] QCATA 336. 13 [2015] QCATA 170. 14 (unreported, Queensland Civil and Administrative Appeal Tribunal, APL484-15, 20 November 2015, President Thomas). 15 (unreported, Queensland Civil and Administrative Appeal Tribunal, APL213-15, 4 December 2015, Carmody J and Member Browne) -- 7 of 8 -- 8 application for leave to appeal against the refusal to extend the time in APL550-13 is incompetent and must be dismissed. [35] The parties are directed to exchange and file any submissions on costs on or before 4pm 29 March 2016. -- 8 of 8 --