Urquhart v Body Corporate for Circle on Cavill
[2013] QCAT 332
| CITATION: | Urquhart v Body Corporate for Circle on Cavill [2013] QCAT 332 |
| PARTIES: | Paul Urquhart (Applicant) |
| v | |
| Body Corporate for Circle on Cavill CTS 39918 (Respondent) |
| APPLICATION NUMBER: | REO006-13 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 7 May 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Hon James Thomas, Judicial Member Dr John Forbes, Member |
| DELIVERED ON: | 13 May 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for review of the Registrar’s rejection of the reopening sought by the Applicant on 6 November 2011 is dismissed. 2. The Registrar is directed to reject the application for reopening filed on 6 November 2011. |
| CATCHWORDS: | APPLICATION FOR REVIEW – decision of appeal Tribunal - decision of Registrar to refuse reopening – whether a decision of the appeal Tribunal may be reopened – reopening application properly rejected – no ground for review Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 32, s 35, s 138, s 139 Body Corporate for Circle on Cavill v Urquhart [2011] QCATA 125, cited |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’).
REASONS FOR DECISION
This is an application for review[1] of a decision of Registrar Bancroft refusing to reopen the Appeal Tribunal’s decision in Body Corporate for Circle on Cavill v Urquhart [2011] QCATA 125.
[1] QCAT Act ss 17, 35(4).
On 23 May 2011, the Appeal Tribunal (the President and Mr Barlow SC) allowed an appeal by the respondent body corporate against a decision of an adjudicator in a proceeding brought by the applicant.[2] The Appeal Tribunal ordered that the applicant’s adjudication application be dismissed.
[2] Body Corporate and Community Management Act 1997 (Qld) Chapter 6.
On 6 November 2011, the Applicant applied for reopening of the Appeal Tribunal’s decision, and sought an order “that the judgment handed down, 23 May 2011 re APL 294-10 be overturned.” The application was also endorsed:
In direct terms this review be referred to the Supreme Court for consideration on the grounds of bias an [sic] judicial interference by the President of QCAT, in the [indecipherable].
On 17 April 2013,[3] Registrar Bancroft, acting under power conferred by s 35 of the QCAT Act, rejected that application upon this ground:
[T]he application [does] not comply with the Act, an enabling Act, or the rules. Under section 138(5) of the [QCAT Act] a party cannot re-open an application for leave to appeal or appeal.
[3] The time lapse is explained in letter from the Case Officer to the Applicant dated 8 April
2013.
There is no provision in the QCAT Act, or any other act, that permits the reopening of an order of the QCAT Appeal Tribunal. The provisions of the QCAT Act that deal with the reopening of proceedings[4] expressly exclude “an appeal under part 8, division 1”.[5] The appeal in which the order of 23 May 2011 was made was such an appeal.
[4] QCAT Act Part 7, Division 7 (ss 136-141).
[5] Ibid s 136.
The exclusion of such orders from the prescribed reopening procedure is reinforced by s 138(5), which states:
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.
Quite simply, there is no provision for the reopening of decisions made by the QCAT Appeal Tribunal, other than the correction of mistakes under s 135, which gives statutory effect to the slip rule in strictly limited terms.
QCAT is declared by the Act to be a court of record.[6] Its orders stand unless and until set aside. There is no other provision for reopening or interference with an order that has been made by the appeals tribunal. Unlike superior courts with inherent powers QCAT tribunals must find statutory authorisation for the exercise of their powers and procedures.
[6] QCAT Act s 164.
It is worthy of note that even in the superior courts there are very limited bases upon which alterations may be made after the recording of a judgment,[7] and the unsubstantiated, and it must be said, scurrilous allegations of the applicant in this matter would be incapable of supporting any of them.[8]
[7] DJL v Central Authority (2000) 201 CLR 226 at [34] - [38].
[8]The most familiar examples are the slip rule, rectification to accord with true intent of the court, consent orders, and the setting aside (usually by institution of separate proceedings) of judgments obtained by fraud. (See e.g. Stubberfield v Paradise Grove Pty Ltd [2000] QCA 299 at [15]-[20], [25]).
The legislature’s desire for finality of determinations in QCAT matters is emphasised by the privative clause in s 139(5) which prohibits judicial review of decisions of authorised reopening applications under s 138.
In short, QCAT has no jurisdiction, statutory or inherent, to entertain the present application which seeks the reopening of a decision of the Appeal Tribunal. The applicant has not chosen to seek to bring any appeal to the Court of Appeal against the Appeal Tribunal judgment.[9] The Registrar was right to reject the application in the exercise of his discretion under s 35(2).
[9] QCAT Act Part 8, Division 2.
Referral of the matter to the Supreme Court (as sought by the applicant) is not an action that this tribunal is authorised to take. Our task is simply to review the Registrar’s decision.
In this case the Registrar could not properly have exercised his discretion in any other way; he was bound by law, as is the Tribunal, to recognise that the application was unauthorised and beyond the power of QCAT to grant, and to apply s 138(5) of the QCAT Act. His reason for refusing a reopening is stated clearly and precisely in a letter to the Applicant dated 17 April 2011.
The Tribunal simply has no power to re-open a matter decided on appeal. Inevitably, this application for review must fail.
ORDERS
The application for review of the Registrar’s rejection of the reopening sought by the Applicant on 6 November 2011 is dismissed.
The Registrar is directed to reject the application for reopening filed on 6 November 2011.
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