Armstrong v Kawana Island Retirement Village

[2012] QCATA 53

CITATION: Armstrong v Kawana Island Retirement Village [2012] QCATA 53

PARTIES:	Mr Leslie James Armstrong (Applicant/Appellant)
v
Kawana Island Retirement Village (Respondent)

APPLICATION NUMBER: APL176-11

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON: 11 April 2012

DELIVERED AT: Brisbane

ORDERS MADE: 1.    Correct the error occurring in paragraph [9](a) of the Reasons for Decision delivered by the Appeal Tribunal on 28 November 2011 by deleting ‘S 109’ and inserting, in lieu thereof, ‘S 107’.

CATCHWORDS:

PRACTICE AND PROCEDURE – whether the Tribunal may correct a decision made by it in a proceeding – where the decision contains an error arising from an accidental slip or omission

Queensland Civil and Administrative Tribunal Act 2009, ss 32, 135, 161, 166
Retirement Villages Act1999, ss 102, 106, 107, 109

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. In QCAT appeal Armstrong v Kawana Island Retirement Village [2011] QCATA 324 the Appeal Tribunal determined cross-appeals by both parties concerning the earlier decision of a QCAT matter arising from a special resolution under the Retirement Villages Act1999.

2. In particular the dispute concerned an order that the operator refund $819 to the residents. Mr Armstrong successfully appealed that decision relying, in particular, upon a submission that the Tribunal had failed to consider ss 102A and 107 of the Retirement Villages Act 1999.  In paragraph [9](a) of the Reasons of the Appeal Tribunal the following appears:

   ‘Section 109 of the Act prevents residents from being required to pay the increases because they had not been approved under s 106.’     

3. The reference to s 109 is, as Mr Armstrong has pointed out in a subsequent application to the Appeal Tribunal, plainly wrong. It is beyond doubt that the Appeal Tribunal intended to refer to s 107.

4. This is a plain error arising from an accidental slip or omission. Under s 135 of the QCAT Act the Tribunal may correct a decision if it contains an error of that kind, either on application of a party or on its own initiative.

5. Under s 135(4) a party cannot apply for correction in relation to a decision the subject of an appeal or an application for leave to appeal. This is not, however, a case in which a party is attempting to correct an original decision of the Tribunal, and the prohibition does not apply.

6. Under Schedule 3 to the QCAT Act the phrase ‘the Tribunal’ means QCAT, as established under s 161. The definition includes the QCAT Appeal Tribunal: s 166 and, generally, Chapter 4 Part 1 make it clear that the Appeal Tribunal is a constituent part of the Tribunal itself, established under s 161.

7. It follows that the power, in the Tribunal, to correct its decisions extends to and includes the Appeal Tribunal.

8. For the reasons set out earlier – ie, because the error is plainly an accidental slip or omission, it is appropriate to make an order correcting paragraph [9](a).