Spinosa v Victims Assist Queensland

[2017] QCATA 120

CITATION: Spinosa v Victims Assist Queensland [2017] QCATA 120

PARTIES:	Donato Spinosa (Applicant/Appellant)
v
Victims Assist Queensland (Respondent)
APPLICATION NUMBER:		REO020-16

MATTER TYPE: Reopening

HEARING DATE: 21 September 2017

HEARD AT: Brisbane

DECISION OF: Justice Carmody

DELIVERED ON: 23 October 2017

DELIVERED AT: Brisbane

ORDERS MADE:

THE APPEAL TRIBUNAL ORDERS THAT:

1.     The application to reopen the appeal is refused.

CATCHWORDS:

REOPENING  –  where the applicant seeks to reopen appeal proceedings – where the tribunal has no power to reopen appeal proceedings – where the application to reopen is dismissed

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 138(1)

APPEARANCES and REPRESENTATION (if any):

APPLICANT            Donato Spinosa on behalf of the Applicant
RESPONDENT       Brendan James (solicitor) on behalf of the Respondent

REASONS FOR DECISION

1. The applicant seeks to reopen an appeal under s 138(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

2. The grounds for reopening can be summarised as follows:

   ·    it was unfair that the applicant’s appeal was summarily dismissed for non-compliance with tribunal directions due to an honest mistake;

   ·    the tribunal erred in finding that the conduct the applicant complained of in the appeal was not unreasonable;

   ·    the fact that police took a witness statement from the applicant regarding his complaint indicated that the matter was sufficiently serious to warrant a finding that the behaviour complained of in the appeal was unreasonable; and

   ·    the tribunal’s original decision failed to take into account key considerations, including that Counsel for the respondent “lied in court”.

3. The respondent submits that the real issue is a legally narrow one, and the tribunal must decide if it has the power to reopen appeal proceedings.

4. The relevant provision of the QCAT Act states:

   138 Application to reopen …

   (5) A party can not make an application under this section in relation to a decision the subject of an appeal, or an application for leave to appeal, under part 8.

   (6) Subsection (5) applies whether or not the appeal or application has been decided.

5. The applicant says that regardless of the governing legislation, all he seeks is a fair hearing.

6. Undoubtedly the applicant feels as though there has been a miscarriage of justice – however the meaning of s 138 is clear. The tribunal has no power to reopen a proceeding that is or has been the subject of an application for leave to appeal or appeal, including after it has been decided.

7. Reopening the applicant’s appeal would impermissibly undermine the finality of the tribunal’s decision-making powers and functions, and the application must be refused as a matter of law.

Orders

1.    The application to reopen the appeal is refused.