MKN v Laq - [2020] QCA 49

SUPREME COURT OF QUEENSLAND

CITATION:

MKN v LAQ [2020] QCA 49

PARTIES:

MKN
(applicant)
v
LAQ
(respondent)

FILE NO/S:

Appeal No 9609 of 2019
QCATA No 163 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time
Application for Leave Queensland Civil and Administrative Tribunal Act

ORIGINATING COURT:

Queensland Civil and Administrative Appeal Tribunal at Brisbane – unreported, 30 May 2018 (Member Olding)

DELIVERED ON:

20 March 2020

DELIVERED AT:

Brisbane

HEARING DATE:

7 February 2020

JUDGES:

Mullins JA and Lyons SJA and Boddice J

ORDERS:

1. Application to extend time to apply for leave to appeal is refused.

2. The sum of $17,530.30 paid into court by the applicant together with accretions be paid to the respondent.

CATCHWORDS:

ADMINISTRATIVE LAW – STATUTORY APPEALS FROM ADMINISTRATIVE AUTHORITIES TO COURTS – where applicant seeks an extension of time pursuant to r 748 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) and for leave to appeal from a final decision of the appeal tribunal of the Queensland Civil and Administrative Tribunal (QCAT) pursuant to s 150 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) – where s 150(3)(a) of the QCAT Act provides that an appeal may be made “only on a question of law” – whether the applicant’s proposed grounds of appeal are pure questions of law – whether the Court of Appeal lacks jurisdiction to hear and determine the proposed appeal

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 150, s 151(2)(b), s 152(2), s 152(4)
Uniform Civil Procedure Rules 1999 (Qld), r 748

Pivovarova v Michelsen[2019] QCA 256, applied
Robertson & Anor v Airstrike Industrial Pty Ltd[2016] QCA 104, applied

COUNSEL:

The applicant appeared on her own behalf
The respondent appeared on his own behalf

SOLICITORS:

The applicant appeared on her own behalf
The respondent appeared on his own behalf

MULLINS JA: I agree with Lyons SJA.
LYONS SJA:
This application
This is an application to extend time pursuant to r 748 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) and for leave to appeal to this court from a final decision of the appeal tribunal of the Queensland Civil and Administrative Tribunal (QCAT) pursuant to s 150 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
There are some difficulties with the current applications with the most obvious being that the application for leave to appeal is brought out of time given that the reasons for the appeal tribunal decision which is appealed from were given on 30 May 2018 and received by the applicant’s solicitors on 12 June 2018. As this application was filed on 9 September 2019 the application is some 15 months out of time.
A further difficulty which the applicant faces are the requirements of s 150 of the QCAT Act which provides that an appeal may be brought from an appeal tribunal of QCAT only on a question of law and only if…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] QCA 49
Decision Date: 20 March 2020

CaseChat Overview and Summary

In the case of MKN v Laq, the applicant sought an extension of time to apply for leave to appeal from a final decision of the appeal tribunal of the Queensland Civil and Administrative Tribunal (QCAT). The applicant also sought leave to appeal from the tribunal’s decision to the Court of Appeal. The primary issue before the court was whether the applicant’s proposed grounds of appeal constituted pure questions of law, as required by section 150(3)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). The court had to determine if it had jurisdiction to hear and determine the proposed appeal.

The Court of Appeal, consisting of Fraser JA, Crow J, and Boddice J, considered the language of section 150(3)(a) of the QCAT Act, which permits an appeal "only on a question of law". Fraser JA, with whom Boddice J concurred, held that the phrase "only on a question of law" qualified the term "question of law", thereby confining the appeal to pure questions of law. The court found that the applicant’s proposed grounds of appeal involved mixed questions of fact and law, which did not fall within the strict confines of a pure question of law. This conclusion was supported by the contrast between the language in section 150(3)(a) and other sections of the QCAT Act that allow appeals on questions of fact or mixed law and fact.

Given that the applicant's proposed grounds of appeal were not purely questions of law, the Court of Appeal held that it lacked jurisdiction to hear and determine the proposed appeal. Consequently, the applicant’s request for an extension of time to apply for leave to appeal and for leave to appeal itself were denied.

The final orders of the court were to refuse the application to extend time to apply for leave to appeal and to direct that the sum of $17,530.30 paid into court by the applicant, together with any accretions, be paid to the respondent.

Orders

Orders of the court

1. Application to extend time to apply for leave to appeal is refused.

2. The sum of $17,530.30 paid into court by the applicant together with accretions be paid to the respondent.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 150 of the QCAT Act provides: “150 Party may appeal—decisions of appeal tribunal(1)A person may appeal to the Court of Appeal against a decision of the appeal tribunal to refuse an application for leave to appeal to the appeal tribunal.(2)A party to an appeal under division 1 may appeal to the Court of Appeal against the following decisions of the appeal tribunal in the appeal—(a)a cost-amount decision;(b)the final decision.(3)However, an appeal under subsection (1) or (2) may be made—(a)only on a question of law; and(b)only if the party has obtained the court’s leave to appeal.” In considering the provision Fraser JA (with whom Boddice J agreed)[26] stated:“In my view s 150(3) of the QCAT Act should be read as if ‘pure’ or ‘only’ does qualify ‘question of law’”[27] and that “an appeal under s 150 is confined to one made on a question of law only”.[28][26]Pivovarova at 6, [14].[27]Pivovarova at 3, [4].[28]Pivovarova at 4, [7]. Both judges agreed with the reasons and order proposed by Crow J. Justice Crow held, citing a number of authorities, that it “may further be observed that a mixed question of fact and law is not a ‘question of law’”.[29] In agreeing with Crow J, Fraser JA stated;“Section 150 is in Division 2, of Part 8 of the QCAT Act, which concerns appeals to the Court of Appeal. It is significant that s 150(3)(a) applies only to appeals against decisions of the QCAT appeal tribunal, which will have considered and refused either an application for leave to appeal (s 150(1)) or an appeal (s 150(2)). That an applicant for leave to appeal to the Court of Appeal already has had one opportunity to challenge an adverse decision makes it seem more likely that the legislative intent was to narrowly confine the grounds of such an appeal.”[30][29]Pivovarova at 11, [36].[30]Pivovarova at 3, [4]. Fraser JA then continued;“[5] Furthermore:(a)Section 149(1), which is also in Division 2, confers a right of appeal against a ‘cost-amount’ decision by QCAT at first instance and s 149(2) confers a right of appeal against another first instance decision by QCAT if it was constituted by a judicial member, in both cases only by leave of the Court of Appeal under s 149(3). Significantly, s 149(3)(a) allows an appeal by leave under s 149(1) only on ‘a question of law’ whereas s 149(3)(b) allows an appeal by leave under s 149(2) also on ‘a question of fact, or a question of mixed law and fact’;(b)In Division 1 of Part 8, which concerns appeals to the QCAT appeal tribunal from certain first instance QCAT decisions, s 142(3)(b) allows certain appeals by leave also ‘on a question of fact, or a question of mixed law and fact’.The contrast between the expressions ‘a question of law’ and ‘a question of fact, or question of mixed law and fact’ makes clear the legislative policy to confine the ambit of an appeal for which the Court of Appeal may give leave under s 150 to an appeal on a question of law which does not involve any question of fact or of mixed law and fact of the kind described in ss 149(3)(b) and 142(3)(b). In a similar statutory context, Rothman J held in Bagumya v Kakwano that the expression ‘only on a question of law’ must mean ‘on a question of law alone’.[6]That s 151(2)(a) of the QCAT Act provides that an application for leave to appeal or an appeal to the Court of Appeal must be made under the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) does not suggest any different view either of the ambit of the appeal or its nature as a strict appeal rather than an appeal by way of rehearing; as to the latter point, the provision in r 765(1) of the UCPR that an appeal to the Court of Appeal under Chapter 18 of the UCPR is an appeal by way of rehearing applies only to an appeal from the Supreme Court constituted by a single judge: UCPR r 745(2).[7]The legislative policy is reinforced by the statement in s 153(1) of the QCAT Act that s 153 (which confers powers upon the Court of Appeal in deciding appeals) ‘applies to an appeal before the Court of Appeal against a decision of the tribunal on a question of law only’. In that provision the word ‘only’ qualifies ‘a question of law’, whereas s 150(3)(a) allows an appeal to be made ‘only on a question of law’. The latter expression, if considered in isolation from its context, is open to the construction that the only kind of appeal that may be made is an appeal ‘on a question of law’, rather than a construction that the appeal is confined to ‘a question of law only’ (which is a pure question of law). Because s 153 is plainly designed to comprehend an appeal under s 150, the implication is that, consistently with the statutory context already discussed and Rothman J’s conclusion in Bagumya v Kakwano, an appeal under s 150 is confined to one made on a question of law only.[8]The absence of any factual component in such an appeal is consistent with the contrast between the powers conferred on the Court by s 153 in an appeal on a question of law only and the powers given to the Court by s 154 in an appeal on a question of fact or mixed law and fact. As to the former, s 153(2) provides that in deciding the appeal the Court of Appeal may confirm or amend the decision, set aside the decision and substitute its own decision, set aside the decision and return the matter to QCAT for reconsideration (with or without the hearing of additional evidence and with other directions the Court considers appropriate), or make any other order it considers appropriate. The powers conferred by s 153 upon the Court in an appeal on a question of law only do not include any analogue of the power conferred by s 154(2) in relation to an appeal on a question of fact or a question of mixed law and fact that the appeal proceeds ‘with or without the hearing of additional evidence as decided by the Court of Appeal’. The absence of such a power in an appeal under s 153 is consistent with a legislative intent to confine appeals to the Court of Appeal to pure questions of law.[9]The powers s 153 confers in an appeal on a question of law only should be given a construction that is consistent with their purpose of aiding in the exercise of the limited nature of the appeal; if, which it is not necessary to decide in this application, the Court of Appeal might itself be able to determine a matter of fact remaining to be determined as a consequence of an appeal being upheld on a question of law only (rather than remitting the matter to the appeal tribunal or to QCAT at first instance), that power may be exercised only by reference to uncontested evidence or primary facts already found by QCAT: see Osland v Secretary to the Department of Justice [No 2] and Powell v Queensland University of Technology”.[31][31]Pivovarova at 3–4, [5]–[9] (citations omitted).

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	MKN v LAQ [2020] QCA 49
PARTIES:	MKN (applicant) v LAQ (respondent)
FILE NO/S:	Appeal No 9609 of 2019 QCATA No 163 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension of Time Application for Leave Queensland Civil and Administrative Tribunal Act
ORIGINATING COURT:	Queensland Civil and Administrative Appeal Tribunal at Brisbane – unreported, 30 May 2018 (Member Olding)
DELIVERED ON:	20 March 2020
DELIVERED AT:	Brisbane
HEARING DATE:	7 February 2020
JUDGES:	Mullins JA and Lyons SJA and Boddice J
ORDERS:	1. Application to extend time to apply for leave to appeal is refused. 2. The sum of $17,530.30 paid into court by the applicant together with accretions be paid to the respondent.
CATCHWORDS:	ADMINISTRATIVE LAW – STATUTORY APPEALS FROM ADMINISTRATIVE AUTHORITIES TO COURTS – where applicant seeks an extension of time pursuant to r 748 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) and for leave to appeal from a final decision of the appeal tribunal of the Queensland Civil and Administrative Tribunal (QCAT) pursuant to s 150 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) – where s 150(3)(a) of the QCAT Act provides that an appeal may be made “only on a question of law” – whether the applicant’s proposed grounds of appeal are pure questions of law – whether the Court of Appeal lacks jurisdiction to hear and determine the proposed appeal Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 150, s 151(2)(b), s 152(2), s 152(4) Uniform Civil Procedure Rules 1999 (Qld), r 748 Pivovarova v Michelsen[2019] QCA 256, applied Robertson & Anor v Airstrike Industrial Pty Ltd[2016] QCA 104, applied
COUNSEL:	The applicant appeared on her own behalf The respondent appeared on his own behalf
SOLICITORS:	The applicant appeared on her own behalf The respondent appeared on his own behalf