State of Queensland v Ali
[2014] QCATA 14
•16 January 2014
| CITATION: | State of Queensland v Ali [2014] QCATA 14 |
| PARTIES: | State of Queensland (Applicant/Appellant) |
| v | |
| Raymond Akhtar Ali (Respondent) |
| APPLICATION NUMBER: | APL377-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, Presiding Member |
| DELIVERED ON: | 16 January 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The extension of time to submit the application for leave to appeal or appeal is granted to the extent necessary. 2. The application will be listed for a Directions Hearing on a time and date to be advised by the Registry. |
| CATCHWORDS: | PRACTICE AND PROCEDURE – EXTENSION OF TIME – APPLICATION FOR LEAVE TO APPEAL – where the applicant received a written decision from QCAT ordering it to pay the respondent a fixed sum – where the applicant sought leave to appeal that decision – where s 143(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) provides that an application for leave to appeal must be filed in the Registry within 28 days after the relevant day – where ‘relevant day’ is defined to mean the day the applicant was given written reasons for the decision being appealed against – where the applicant filed an application for leave to appeal or appeal (Form 39) in the Tribunal within 28 days of the relevant day – where a delegate of the QCAT Principal Registrar stamped the Tribunal’s seal on the application – where the applicant contends it was not told it was required to pay the prescribed fee upon filing the application – where in the box titled ‘for office use only’ the delegate noted ‘N/A’ next to the words ‘Fee paid’ – where s 143 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) provides that an application for leave to appeal must be in a form substantially complying with the QCAT rules; state the reasons for the application; and be accompanied by the prescribed fee – where the Registry advised the applicant that a filing fee was required to be paid – where the applicant did not pay the prescribed fee within 28 days after receiving written reasons for the decision being appealed against – where the applicant was given a copy of the application with a fresh ‘received’ stamp – where the Tribunal directed the applicant to file an application for an extension of time – where the applicant contends it satisfied s 143(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) when the application was stamped within 28 days of the relevant day – whether the application for leave to appeal was filed correctly – whether an extension of time should be granted in the circumstances Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 3(b), 61(1)(a), 61(3), 122, 143(2), 143(3) Uniform Civil Procedure Rules 1999 (Qld) s 5A(1), r 971 Queensland Civil and Administrative Tribunal Regulation 2009 (Qld) reg 8(1)(c) King v TIC Realty (No 3) [2010] QCATA 104, cited |
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.
REASONS FOR DECISION
The State of Queensland seeks reasons for a decision made by the Appeal Tribunal to grant it an extension of time to start proceedings.[1] That decision was made on the papers on 16 October 2013.
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 122.
The State’s request for reasons is unusual considering its application was granted. As has been said before[2] by this Appeal Tribunal: the unfortunate effect of s 122 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) appears to be that reasons must be given for minor decisions – involving, here, an extension of time for 1 day. It is regrettable that the Tribunal is diverted from more important work by demands of the kind now brought by the State. This is particularly the case considering the Justice and Other Legislation Amendment Act 2013 (Qld) amends the QCAT Act such that the Tribunal is now not required to comply with a request for such a decision. It is indeed strange that the State is seeking something it intended to disallow when the Bill for that Act was introduced. In any event, these are the reasons it has sought.
[2]King v TIC Realty (No 3) [2010] QCATA 104 at [7].
On 6 August 2013, the Tribunal ordered the State to pay compensation in the sum of $3,000 to be dealt with in accordance with Chapter 6, Part 12B of the Corrective Services Act 2006 (Qld).[3] The reasons for that decision were received by Crown Law, on behalf of the State, on 8 August 2013.[4]
[3]See generally, Ali v State of Queensland [2013] QCAT 319.
[4]Affidavit of Nicola Mary Smith (QCAT, APL377-13, 16 September 2013) 1 [2].
The State seeks to appeal that decision.
Section 143(3) of the QCAT Act provides that an application for the Appeal Tribunal’s leave to appeal must be filed in the QCAT Registry within 28 days after the relevant day. Subsection (5) defines ‘relevant day’ as ‘the day the person is given written reasons for the decision being appealed against.’
Pursuant to s 143(2) of the QCAT Act, the application or appeal must also, when it is filed in the QCAT Registry, be in a form substantially complying with the rules,[5] state the reasons for the application or appeal, and, relevantly here, be accompanied by the prescribed fee.[6]
[5]See r 95 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (‘QCAT Rules’).
[6]See reg 8(1)(c) of the Queensland Civil and Administrative Tribunal Regulation 2009 (Qld).
On 3 September 2013, the State filed an Application for leave to appeal or appeal[7] (‘the application or appeal’), and an Application to stay a decision[8] in respect of the Tribunal decision of 6 August 2013.
[7]See Form Number 39, QCAT Rules r 95.
[8]See Form Number 44, QCAT Act ss 22, 33.
While the application or appeal was stamped with the Tribunal’s seal, the prescribed fee for an appeal to the Appeal Tribunal was not paid. While the prescribed fee was not paid, Part F of the application or appeal shows that the State did check the box which read ‘I have paid the prescribed fee’.
On 5 September 2013, a staff member of the QCAT Registry contacted Crown Law, on behalf of the State, notifying it that there was a prescribed fee that must accompany an application or appeal, and the fee was $569.20.[9] The following day a cheque for that amount was delivered to the QCAT Registry.[10] The State submits that because it is not required to prepay any fees of court[11] – despite, I am told, its practice is to do so – the requirement for the payment of a prescribed fee was ‘inadvertently not considered at the time of filing.’[12] However this is, again, inconsistent with Part F of the application or appeal which would show the payment of the prescribed fee had been considered and, in fact, been paid.
[9]Affidavit of Nicola Mary Smith (QCAT, APL377-13, 16 September 2013) 2 [8].
[10]Ibid 2 [9].
[11]Uniform Civil Procedure (Fees) Regulation 2009 (Qld) s 5A(1).
[12]Affidavit of Nicola Mary Smith (QCAT, APL377-13, 16 September 2013) 2 [11].
The filing date of the State’s application or appeal was amended to 6 September 2013 – i.e. the date when the application or appeal was filed with a cheque for $569.20. Because 28 days after 8 August 2013 was 5 September 2013, the State’s application or appeal was filed one day after the relevant day.
On 9 September 2013, the Appeal Tribunal ordered that the State file and give to Raymond Ali an application for an extension of time with written submissions in support of that application. It did so on 16 September 2013.
In its submissions, the State contends that it complied with the procedural requirements for filing documents, in particular s 143(3) of the QCAT Act, when its application or appeal was stamped with the Tribunal’s seal on 3 September 2013. In support of this contention it relies upon r 31(1) of the QCAT Rules which provides that a document is filed when the Principal Registrar records the document and stamps the Tribunal’s seal on it. The State submits that because r 31(1) does not provide that a document is filed when stamped with the Tribunal’s seal and the prescribed fee is paid, it has, strictly speaking, complied with s 143(3).
The State says that neither the QCAT Act nor its Rules impose a requirement that a prescribed fee be paid in order for a document to be filed, or that a document may only be filed if that fee is paid at the time of filing it. This, it submits, may be contrasted with the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) – i.e. the rules that apply to civil proceedings in the Supreme, District and Magistrates Courts. Rule 971 of the UCPR provides that, in those Courts, a ‘document may be filed only if any prescribed fee for filing it is paid when the document is given to the registrar.’
While r 31(1) of the QCAT Rules is not drafted in those exact terms used in r 971 of the UCPR, an interpretation that the former does not then require payment of any prescribed fee for filing, at the time of filing, would disregard the requirements of s 143(2) of the QCAT Act – e.g. that the application or appeal must be accompanied by the prescribed fee (if any). The natural and ordinary meaning of s 143 of the QCAT Act is that an application or appeal must, before it is stamped with the Tribunal’s seal, comply with the requirements of form and content (subsection (2)) as well as the limitation period fixed by the QCAT Act (subsection (3)). An application or appeal that is stamped with the Tribunal’s seal does not cure noncompliance with a requirement listed in either of those subsections.
It follows that such a construction would mean an appellant could file an application or appeal in the correct form (Form 39) but without stating the reasons for commencing such a proceeding. If the prescribed fee was not required to be paid when the application or appeal was filed, at what stage in the proceedings would the appellant be compelled to pay that fee?
It is clear that sub-ss 143(2) and (3) of the QCAT Act must be read together. The practical effect is that an application or appeal must be filed with the prescribed fee before leave to appeal or appeal proceedings are started. It follows that an application or appeal that is not accompanied by the prescribed fee and is subsequently stamped with the Tribunal’s seal is done so incorrectly. In those circumstances, an application or appeal will not be deemed to have been ‘filed’ for the purpose of starting an appeal.
For these reasons it was necessary for the State to file an application for an extension of time.
Under the QCAT Act, the Tribunal is to deal with matters in a way that is accessible, fair, just, economical, informal and quick.[13] Where, as is the case here, an appellant does not initiate proceedings within the time limit fixed by the QCAT Act, the Tribunal may extend that time limit.[14]
[13]QCAT Act s 3(b).
[14]Ibid s 61(1)(a).
Section 61(3) of the QCAT Act provides that the Tribunal cannot extend a time limit if to do so would cause prejudice or detriment, not able to be remedied by an appropriate order for costs or damages, to a party or potential party to a proceeding.
The State seeks to extend the limit fixed for the start of leave to appeal or appeal proceedings by one day.
The State is plainly entitled to the short, reasonable extension it has sought. To deny it an extension would, in the circumstances, be ‘against the plain tenets of justice and even-handedness which the legislation, and principles of procedural fairness, dictate.’[15] Also, as the State submits, no prejudice or detriment to Mr Ali could be occasioned by the extension of time by one day.
[15]King v TIC Realty (No 3) [2010] QCATA 104 at [12].
The State is granted, to the extent necessary, an extension of time to submit the application for leave to appeal or appeal.
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