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- Unreported Judgment
Warren v Queensland Law Society Inc  QCAT 310
Alexia Margaret Warren
Queensland Law Society Inc.
Occupational Regulation Matter
On the papers
25 August 2016
IT IS THE DECISION OF THE TRIBUNAL THAT:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS – ACTIONS TO REVIEW OR SET ASIDE JUDGMENT OR ORDER – GENERALLY – where the applicant claims new evidence has been discovered – whether the applicant would suffer substantial injustice – whether a self-executing order is a “decision” in the tribunal – whether the reopening discretion should be exercised
BANKRUPTCY – PROCEEDINGS IN CONNECTION WITH SEQUESTRATION – PETITION AND SEQUESTRATION ORDER – EFFECT OF BANKRUPTCY ON PROPERTY AND PROCEEDINGS – ACTIONS BY AND AGAINST BANKRUPT – STAY OF PROCEEDINGS AGAINST BANKRUPT AFTER PRESENTATION OF PETITION – where the applicant was a bankrupt before seeking to reopen a matter before the tribunal – where the trustee has not consented to the applicant bringing the proceedings – whether the proceedings are stayed due to the bankruptcy – whether the proceeding is a fresh one or a continuation if no decision on the merits has been given
Bankruptcy Act 1966 (Cth) s 60(2)
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 47, 126, 127, 138, 139, 140, Schedule 3
Bailey v Marinoff (1971) 125 CLR 529
Director-General of Social Services v Chaney (1980) 31 ALR 571
Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301
Semunigus v Minister for Immigration and Multicultural Affairs  FCA 422
Warren v Queensland Law Society Incorporated  QCAT 115
Warren v Queensland Law Society Inc  QSC 168
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers without the attendance of either party in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”).
REASONS FOR DECISION
- Ms Warren (the applicant) is seeking to reopen OCR159-11 to review the cancellation of her legal practicing certificate in 2013. The review proceedings ended adversely to her in December 2014. An earlier attempt to reopen the matter in November 2015 (first reopening) was dismissed in 2016 due to her failure to file material within the time directed.
- This application (second reopening) was filed on 24 May 2016. The applicant contends she would suffer substantial injustice if OCR159-11 was not reopened and claims that new evidence has been discovered which the respondent had withheld when the reviewable decision was made for the purpose (or with the effect) of misleading the review tribunal.
- A reopening is a quick and easy way of achieving QCAT’s stated objects, via a statutory process of reviewing a decision without the delay and inconvenience of having to appeal (that the “functus officio” doctrine would otherwise prevent).
- The question for decision is whether the dismissal of the first reopening was a “decision” of the tribunal that cannot be revisited in a second reopening on the same grounds.
- The respondent (society) submits that the application should be dismissed because it is (a) incompetent as statute-barred; (b) filed by an applicant who is an undischarged bankrupt and her trustees have not elected to continue it and (c) out of time.
The competency issue
- At a directions hearing held in January 2016 for the first reopening, the President of QCAT ordered the applicant to file and serve supporting evidence and submissions according to a strict timetable. The directions included a self-executing (guillotine) order automatically dismissing the reopening and related applications if the stipulated deadlines were not met.
- The guillotine order was triggered when the applicant failed to comply with the President’s directions; effectively bringing the first reopening proceeding to an end in January 2016.
- The society submits that the making of a second reopening application in the same proceeding is barred by s 139(5) of the QCAT Act, which provides:
the tribunal's decision on the application is final and can not be challenged, appealed against, reviewed, set aside, or called in question in another way, under the Judicial Review Act 1991 or otherwise.
Did the tribunal make a decision on the first reopening application?
- The society’s opposition to the application is clearly based on the premise that the guillotine order was a decision.
- The shorter Oxford dictionary defines a decision as meaning “…the action of deciding (a contest, question etc)… a conclusion, judgment: esp. one formally pronounced in a court of law”.
- As Deane J noted in Director-General of Social Services v Chaney, Deane J described “decision” as a word capable in some contexts of referring to “the mental process of (finally) making up one’s mind” but can “be apt to include the determination of any question…including, for example, rulings on procedural questions.”
- As always, however, the meaning s 139(5) QCAT Act was intended to have depends on its context and purpose. Assuming it is a reference to the discretion whether or not to reopen the proceeding in question, it is a matter of interpretation whether the summary dismissal of the first reopening application on 27 January 2016 by virtue of the President’s procedural directions qualifies as such a decision which this application cannot legitimately call into question.
- The obvious inference to be drawn from the structure of the President’s directions is that he intended to forever foreclose the option of reopening OCR159-11 if the applicant did not make good her assertion about new material and fraud on the tribunal.
- On this basis, it makes perfect sense to read the decision in s 139(5) as encompassing the self-executing order and its dispositive effect so that the reopening of OCR159-11 is not something the tribunal can revisit again under the exceptional procedures in Part 8 Division 1 QCAT Act.
- This is consistent with the settled policy position in favour of finality and against distributing a merits-based decision in light of new material except on appeal for demonstrated error or by way of rehearing with leave.
- There is no doubt that, once activated, a self-executing dismissal order brings a proceeding to an end, but it is reasonably arguable that no conscious “decision” was made by the President about the merits of whether or not to reopen OCR159-11 and, therefore, neither ss 139(5) nor 140(5)-(6) QCAT Act apply.
- What s 139(5) QCAT Act makes “final” and unimpeachable is the decision “made on the application” whether or not to reopen, which, under s 139(2) and (3) QCAT Act, each party in a reopening proceedings must be given the opportunity to make submissions about (and the tribunal must consider) in deciding whether to grant or refuse it.
- Although technically a QCAT “decision”, the guillotine order was arguably not “made on the application” within s 139(5) QCAT Act, because identifying a guillotine order as a decision with the practical effect of rendering this proceeding incompetent seems odd when it did not, in any real sense, decide the merits or utility of reopening OCR159-11 because the applicant did not avail herself of the opportunity to make submissions within time (and therefore the respondent did not have to file any).
- While the opposite conclusion is equally, if not ‘more’ arguable, the President’s self-executing procedural order in January that effectively terminated the first reopening application was not, in my opinion, a “decision” within the meaning of s 139(5) QCAT Act to preclude the making of a second reopening application under s 138 QCAT Act or a potential challenge on appeal.
The bankruptcy issue
- At  of its written submissions, the society asserts that the current reopening application is stayed by operation of s 60(2) of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act) because it is a proceeding instituted before the bankruptcy viz., OCR159-11 and the applicant does not have the consent of her trustee in bankruptcy.
- Section 60(2) of the Bankruptcy Act provides:
An action commenced by a person who subsequently becomes a bankrupt is, upon his or her becoming a bankrupt, stayed until the trustee makes election, in writing, to prosecute or discontinue the action.
- The applicant was bankrupted by a sequestration order of the Federal Circuit Court on 5 February 2016, or more than three months before this application to reopen was filed.
- The society’s argument is premised on the doubtful proposition that a reopening application is a continuation of OCR159-11, consistently with a Supreme Court judge’s decision to dismiss an application filed by the same applicant after her bankruptcy under r 72 of the Uniform Civil Procedure Rules 1999 (Qld) to have an antecedent judgment (confirmed on appeal in the meantime) set aside for fraud on the footing that it was an attempt to re-litigate an extinguished cause of action.
- OCR159-11 ended on 19 December 2014. The first application to reopen it was dismissed on 27 January 2016. Section 60(2) of the Bankruptcy Act only applies to civil actions (presumably including QCAT applications) commenced by a person who subsequently becomes a bankrupt, not to a person who, like the applicant, was an undischarged bankrupt when the proceeding started.
- While issues decided afresh in a reopening hearing are understandably taken to be part of the original proceeding, I don’t think the same applies to a failed reopening bid dismissed before being heard on its merits.
- In this case, the tribunal cannot hear and determine the second reopening application for the reason that when the current proceedings were started, the applicant was (and is) an undischarged bankrupt acting without the consent of her trustee in bankruptcy.
- All of a bankrupt’s property vests in the trustee of the estate under s 58(1) Bankruptcy Act. For this purpose, “property” includes vested or contingent private property interests. Once a bankrupt estate is vested in a trustee, the debtor loses all ownership rights and any authority to exercise them except via the trustee this which is wide enough to encompass equitable property such as a “thing in action” or litigation rights like making a reopening application to QCAT.
- Thus, if – as it seems – the trustee does not know about and therefore has not endorsed the second reopening application, the applicant has no standing to make or pursue it and for this reason alone it should be dismissed under s 47 QCAT Act as misconceived or an abuse of process.
The reopening discretion
- Even assuming the application is not statute-barred and the applicant had standing to bring it (i.e. that it is not incompetent or stayed by operation of law) her tardiness in making the second reopening application and procedural defaults in pursuing the first are significant (but not necessarily insuperable) discretionary obstacles for her.
- The tribunal may grant a reopening application if it considers a valid ground exists and it could be effectively or conveniently dealt with by reopening the proceeding. A reopening ground means (a) the party did not appear at the hearing and had a reasonable excuse for not doing so, or (b) the party would suffer a substantial injustice if the proceeding was not reopened because significant new evidence has arisen that was not reasonably available when the proceeding was first heard and decided.
- However, although she claims substantial injustice if OCR159-11 was not reopened, the applicant does not clearly and coherently explain why. She has not adequately outlined in her submissions the nature and asserted significance of the so-called new evidence, nor has she stated when it first became available to her or why it should have the effect of altering the original decision.
- Moreover, there is no satisfactory explanation for not complying with the January 2016 directions nor apparent reason why the finality principle should be relaxed after such a long time to reopen a final merits decision in a defunct proceeding that was not appealed.
- In all of the application’s circumstances, and considering the written submissions of the parties filed under s 139(2) QCAT Act, I am not reasonably satisfied that a viable reopening ground exists or, if it does, that it can be properly dealt with by way of reopening.
- The applicant’s past record of not meeting litigation timeframes does not favour giving her any more procedural indulgences, such as waiving or excusing inordinate unexplained delay as a matter of discretion, especially in a no costs jurisdiction against a professional body funded by its members, or justify putting the society to any more vexation.
- The application to reopen OCR159-11 is refused.
 Warren v Queensland Law Society Incorporated  QCAT 115.
 Jayasinghe v Minister for Immigration & Ethnic Affairs (1997) 76 FCR 301.
 cf Bailey v Marinoff (1971) 125 CLR 529.
 (1980) 31 ALR 571.
 see too Semunigus v Minister for Immigration and Multicultural Affairs  FCA 422 .
 QCAT Act s 126.
 Ibid s 127.
 Warren v Queensland Law Society Inc  QSC 168.
 QCAT Act s 139(4).
 Ibid Schedule 3.
- Published Case Name:
Warren v Queensland Law Society Inc
- Shortened Case Name:
Warren v Queensland Law Society Inc
 QCAT 310
25 Aug 2016