Cleary v Cotter

[2010] QCATA 62

CITATION:		Cleary v Cotter [2010] QCATA 62
PARTIES:	Mr Jason Cleary (Applicant)
v
Ms Kathleen Cotter (Respondent)

APPLICATION NUMBER:   APL157-10

MATTER TYPE: Application for leave to appeal, application to appeal, application for extension of time within which to apply for leave to appeal

HEARING DATE:     On the papers

HEARD AT:  Brisbane

DECISION OF: Judge Fleur Kingham, Deputy President

DELIVERED ON: 15 October 2010

DELIVERED AT:      Brisbane

ORDERS MADE:

[1]  The application for an extension of time within which to apply for leave to appeal is granted.

[2]  The application for leave to appeal is refused.

CATCHWORDS : 

APPEAL – LEAVE TO APPEAL – EXTENSION OF TIME TO APPLY – where reason to extend time so reasons may be given on the application

APPEAL – FORMER TRIBUNAL – TRANSITIONAL PROVISIONS – whether QCAT may hear an appeal from a final decision of a former Tribunal made before QCAT commenced.

APPEARANCES and REPRESENTATION (if any):

Decision on the papers.

REASONS FOR DECISION

1. On 19 August 2009 Ms Cotter was successful in obtaining a decision from the former Commercial and Consumer Tribunal (CCT) in matter number BD327-06 in her favour against Mr Cleary.

1. Whilst Mr Cleary has not adequately explained his delay in seeking leave to appeal that decision, leave is granted because it raises questions about the application of transitional provisions, in the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). It should be noted that Mr Cleary has unsuccessfully applied to reopen the original proceedings. That application also, necessarily, delayed this appeal.

1. Ms Cotter challenges the jurisdiction of the Appeal Tribunal of QCAT to deal with an appeal from the decision of the CCT.  That challenge is sound.

1. The decision made by the CCT was a final decision. It was made before the QCAT Act commenced and is taken to be a decision of QCAT.[1] However characterising the decision as a final decision of QCAT does not confer the rights of appeal which apply under the QCAT Act to decisions made by QCAT.

   [1] Queensland Civil and Administrative Tribunal Act 2009 s 252(1)

1. QCAT may not deal with a decision of a former Tribunal in a way that is inconsistent with the former Act under which the decision was made[2]. The Commercial and Consumer Tribunal Act 2003 (CCT Act) provided for an appeal from decisions of the CCT to the District Court of Queensland. It did not confer an appellate function on the CCT itself. For QCAT to deal with an appeal from the CCT would be inconsistent with the CCT Act.

   [2] Queensland Civil and Administrative Tribunal Act 2009 s 252(2)

1. For a matter such as this, the appeal must be to the body which was, formerly, given jurisdiction to deal with the matter. The QCAT Act allows this to occur. If immediately before the QCAT Act commenced, a person could have appealed to a court against a decision of a former Tribunal, but that person has not started the appeal, they may, within the appeal period, appeal to the court against the decision and the court must hear and decide the appeal under the Act which formerly applied as if it were still in force.[3]

   [3] Queensland Civil and Administrative Tribunal Act 2009 s 258

1. Mr Cleary’s right to appeal is to the District Court. QCAT cannot hear the appeal. The application for leave to appeal is refused.