When should I appeal a QCAT decision?

“The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, ‘… the public as a whole, not merely the parties to the proceedings’.”

Inaugural QCAT President Wilson J, Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226, [13], citing with approval Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 217

What is QCAT’s appeal jurisdiction?

Unlike the Victorian Civil and Administrative Tribunal (VCAT), the Queensland Civil and Administrative Tribunal (QCAT) has its own internal Appeal Tribunal.

VCAT decisions can only be appealed to the Supreme Court of Victoria on a question of law. However, in QCAT a party to a proceeding may appeal to the Appeal Tribunal against a decision of the tribunal if a judicial member did not constitute the tribunal in the proceeding.1

Importantly, an appeal against a decision in a minor civil dispute, a non-final decision, a costs order, or on a question of fact, or on a question of mixed law and fact, may only be made with leave.2 Before filing an application for leave to appeal, practitioners should carefully consider established principles in assessing their client’s prospects of success, namely:

  • whether there is a reasonably arguable case of error in the primary decision3
  • whether there is a reasonable prospect that the appellant will obtain substantive relief4
  • whether leave is needed to correct a substantial injustice caused by some error,5 and
  • whether there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.6

An application for leave to appeal is not, and should not be, an attempt to re-argue a party’s case at the initial hearing.7 A clear purpose of the requirement for leave, before a party has the right to appeal, is to prevent any attempt to simply conduct a retrial on the merits of the case.8

Leave will not be granted where a party seeks to re-argue the case on existing or additional evidence.9 An application for leave to appeal is not an occasion to re-try the case presented at trial, as if the latter were a ‘preliminary skirmish’.10

Does an appeal automatically suspend the operation of the original decision?

The start of an appeal does not affect the operation of the decision or prevent enforcement.11 However, the tribunal may stay the original order on application by the appellant or its own initiative.12 Practitioners should note that the tribunal does not stay its orders as a matter of course, and subject to any enabling legislation, will apply usual principles in determining stay applications.13

What is the difference between an appeal and an application to reopen?

Parties, particularly those who are unrepresented, often file appeals that are in effect applications to reopen a proceeding. In these cases, the Appeal Tribunal will usually refer the application back to the tribunal to decide whether the proceeding should be reopened.14

The applicant will need to establish to the tribunal a ‘reopening ground’ – a reasonable excuse for not attending the hearing or that significant new evidence has arisen since the proceeding was first heard and decided.15 In deciding whether to reopen the application, the tribunal will consider delay, wasted costs, the legitimate concerns of proper case management and the proper use of public resources.16

What should I consider before filing an appeal?

Each year, QCAT processes unmeritorious appeals that unnecessarily incur upon the limited resources of the parties and the tribunal. Many of these would benefit from legal advice at any early stage.

The appeal process is not an opportunity for a party to again present their case.17 It is the means to correct an error by the tribunal that decided the proceeding.18 Therefore, practitioners must identify an appellable error. An appellable error is not demonstrated by identifying other possibilities not mentioned or not apparently considered.19

The tribunal may have unexpressed findings of fact.20 The primary reasons need only refer to the relevant evidence, material findings of fact (and reasons for those findings) and the applicable law and reasons for applying it.21

The Appeal Tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.22 Attempting to explain away the tribunal’s finding with a possible alternative inference does not demonstrate error. It is not an error to prefer one version of events to another.23

Many dissatisfied litigants, and particularly those who are unrepresented, often seek to raise bias as a ground of appeal. Bias is a serious allegation. The threshold to prove bias is high:

“… if a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the determination of the issues that he or she must decide.”24

Allegations of bias require more than a bare allegation.

Will the Appeal Tribunal interfere with the exercise of a discretion by the tribunal below?

The Appeal Tribunal will not interfere with the exercise of a discretion unless it can be shown that the tribunal acted on a wrong principle, or made mistakes of fact affecting the decision, or was influenced by irrelevant matters.25

Will the Appeal Tribunal consider fresh evidence?

The Appeal Tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce fresh evidence must satisfy three tests:26

(a) Could the parties have obtained the evidence with reasonable diligence for use at the trial?
(b) If allowed, would the evidence probably have an important impact on the result of the case?
(c) Is the evidence credible?

A party who provides deficient evidence at the original hearing cannot expect a different outcome by resubmitting it in another form to “shore up their case”. The onus is always upon parties to present their case and bring all relevant material to the original hearing.27 Failing to properly prepare or present a party’s case is not a ground of appeal.

Conclusion

The QCAT Appeal Tribunal provides recourse for litigants who believe their case has been infected with an appellable error. However, it is important that practitioners advise their clients of the nature and limitations of the appeal process before incurring substantial costs in both time and money.

Bevan Hughes has presided in more than 5000 hearings, including appeals, in his role as a full-time Member of the Queensland Civil and Administrative Tribunal and is List Manager for Neighbour Disputes. He is a nationally accredited mediator and has mediated more than 1200 QCAT matters with a 97% settlement rate. The views expressed are those of the author only and are not made on behalf of QCAT.

Footnotes
1 Queensland Civil and Administrative Tribunal Act 2009 (Qld),s142(1) (QCAT Act); appeals from a judicial member may only be made to the Court of Appeal with leave: QCAT Act, s149(2), (3)(b).
2 QCAT Act, s142(3).
3 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
4 Cachia v Grech [2009] NSWCA 232, 2.
5 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
6 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 577, 580.
7 Bradlyn Nominees v Saikovski [2012] QCATA 39.
8 Ibid.
9 Piric & Anor v Claudia Tiller Holdings Pty Ltd [2012] QCATA 152, [12] (Wilson J).
10 Mataitini v North Shore Realty Sunshine Coast [2020] QCATA 154, [12] citing Coulton v Holcombe (1986) 162 CLR 1, 7.
11 QCAT Act, s145(1).
12 QCAT Act, s145(2), (3).
13 Burch v Office of Fair Trading [2015] QCAT 363 (successful); Acreman v Deputy Commissioner Pointing [2018] QCAT 63 (unsuccessful).
14 QCAT Act,s143A.
15 Ibid, s138(1), Schedule 3 (definition of ‘reopening ground’).
16 Ren v Poolworld Pty Ltd [2011] QCAT 706, [8], citing with approval Aon Risk Services Aust Ltd v Australian National University (2009) 239 CLR 175.
17 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39, [9].
18 Ibid.
19 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 269, 270.
20 Ibid, 272.
21 Armstrong v Kawana Island Retirement Village [2011] QCATA 324, [13].
22 Dearman v Dearman (1908) 7 CLR 549, 561; Fox v Percy (2003) 214 CLR 118, 125-126.
23 Slater v Wilkes [2012] QCATA 12, [6].
24 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344-5 [6].
25 House v The King (1936) 55 CLR 499, 504.
26 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, 408.
27 Hannah v Leer [2021] QCATA 18, [18] citing with approval Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226, [13].

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